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2016 DIGILAW 281 (GAU)

Arabinda Barman v. State of Assam

2016-04-18

AJIT SINGH, SUMAN SHYAM

body2016
ORDER : 1. This intra-Court appeal has been preferred against the common judgment and order dated 09/12/2014 passed in connection with WP (C) No. 5249/2014, WP (C) No. 6050/2013 and WP (C) No. 6114/2012, whereby the prayer made on behalf of the appellants/writ petitioners for conducting a special selection process for considering their cases for appointment to the post of Assistant Enforcement Inspector (for short “AEI”) and Enforcement Checker (for short “EC”) under the Transport Department of Assam, by giving due weightage to their past services, was declined by the learned Single Judge. 2. The brief factual matrix of the case appearing on the face of the record is that appellants/writ petitioners were initially appointed in the year 2001 under the Transport Department, Government of Assam as AEI and EC on ad-hoc basis. Thereafter, a regular selection process was initiated by the Department for filling up the posts of AEI and EC in the year 2002 wherein the writ petitioner had also participated in the written test conducted on 03/02/2002. However, the said selection process came to be challenged before this Court in PIL No 19/2002 and W.P. (C) No 6000/2002. Both the above proceedings having ended in dismissal before this Court, the matter taken to the Supreme Court wherein the present writ petitioners had also participated. Eventually, taking note of the stand taken by the State Government in the matter, the selection process was set aside by the Apex Court by permitting the State to hold a fresh selection for filling up the posts. The ad-hoc appointees were also granted liberty to participate in the fresh selection process. It was further ordered that until such time the selection was made, the ad-hoc appointees be permitted to continue in the posts held by them. It was, however, clarified that if they wished to be appointed regularly then the ad-hoc appointees will have to participate and qualify in the written examination and viva-voce tests. 3. Thereafter, the State Government had framed the Assam Transport Service Rules, 2003 and in accordance with the aforesaid Rules, 32 posts of AEI and EC were advertised on 12/12/2003. The advertisement notice dated 12/12/2003 was challenged in 2 (two) writ petitions filed before this Court bearing numbers WP (C) No. 2594/2005 and WP (C) No. 5033/2004. 3. Thereafter, the State Government had framed the Assam Transport Service Rules, 2003 and in accordance with the aforesaid Rules, 32 posts of AEI and EC were advertised on 12/12/2003. The advertisement notice dated 12/12/2003 was challenged in 2 (two) writ petitions filed before this Court bearing numbers WP (C) No. 2594/2005 and WP (C) No. 5033/2004. By the judgment and order dated 19/07/2005, this Court had set aside the selection process, thereby setting at knot the second selection process initiated by the department for filling up the aforementioned 32 posts of AEI and EC, as a result of which the appellants/writ petitioners being the ad-hoc appointees continued in their posts. Again on 30/07/2005, the state respondents issued another advertisement for filling up the aforementioned posts which was also put to challenge by filing WP (C) No. 6839/2005 before this Court. Eventually, by the judgment and order dated 21/06/2006 the said selection process was also set aside by this Court and the Government was directed to conduct a fresh selection in accordance with law. Although the State Government did not prefer any appeal against the aforementioned judgment and order dated 21/06/2006 passed by this Court, yet, the writ petitioners in WP (C) No. 6839/2005 had approached the Hon’ble Supreme Court by filing SLP (C) No. 7175/2005 which ended in dismissal where-after, the selection process initiated by the advertisement dated 30/07/2005 was brought to its logical conclusion and regular appointments were made to the aforesaid posts of AEI and EC. In the result, the services of all the ad-hoc appointees including the present appellants were terminated with effect from 01/04/2008. 4. The ad-hoc appointees who stood ousted from service with effect from 01/04/2008 had thereafter, approached the Government by claiming that they had given the most productive days of their life to the service of the State and having become over-aged for participating in a selection process for fresh appointment, the Government should consider their cases for appointment by creating new posts and accommodating them against such newly created posts. It appears that the Government had mooted a proposal for creation of 50 posts of AEI and EC so as to accommodate 56 displaced ad-hoc appointees including the present appellants who had rendered 7 years of service as ad-hoc appointees. It appears that the Government had mooted a proposal for creation of 50 posts of AEI and EC so as to accommodate 56 displaced ad-hoc appointees including the present appellants who had rendered 7 years of service as ad-hoc appointees. Accordingly, by the notification dated 29/02/2012 100 posts were sanctioned out of which 50 posts were meant for the AEI and remaining 50 for the EC. Thereafter, an advertisement was issued on 01/12/2012 inviting applications from intending candidates for filling up the 50 posts of AEI and 50 posts of EC laying down the prescribed qualification. Be it mentioned herein that the upper age limit of the candidate was fixed at 38 years as on 01/01/2012 which was, however, relaxable upto 43 years for SC/ST and upto 40 years for ex-service. The aforesaid notification dated 29/02/2012 as well as the advertisement dated 01/12/2012 again came to be challenged before this Court in WP (C) No. 6114/2012 whereby the appellants/ writ petitioners had contended that the aforesaid notifications were illegal since the same had been issued without reserving 56 posts of special selection of the ad-hoc appointees by condoning the age of such candidates belonging to the aforementioned category. Accordingly, a prayer was made for setting aside the aforesaid advertisement dated 01/12/2012 and a direction be issued to hold a special recruitment for the 56 Nos. of AEI and EC out of the 100 posts so advertised. Since the process of selection was not stayed by this Court, hence, the writ petitioners had filed application for relaxation of their upper age limit and the official respondents by order dated 08/07/2013 had allowed the prayer for condonation of upper age limit of 22 writ petitioners who had crossed 38 years but did not cross the maximum age limit of 45 years. However, 8 writ petitioners, viz. Arabinda Barman, Robindra Nath Das, Jyotish Mahanta, Sarat Kalita, Ratul Krishna Mahanta, Pranjit Das, Upen Kr. Borah and Prasanta Saikia were not allowed to participate in the selection process on the ground that they had already crossed 45 years of age. 5. The aforementioned 8 (eight) candidates had thereafter filed WP (C) No. 6050/2013, inter-alia, praying for a direction upon the respondents to make an one time age relaxation of upper age limit so as to enable them to sit in the written test and interview. 5. The aforementioned 8 (eight) candidates had thereafter filed WP (C) No. 6050/2013, inter-alia, praying for a direction upon the respondents to make an one time age relaxation of upper age limit so as to enable them to sit in the written test and interview. On the strength of the interim orders passed by this Court, all the writ petitioners including the aforementioned 8 writ petitioners who had filed WP (C) No. 6050/2013 were permitted to appear in the written test, the results of which were declared on 19/09/2014 and 20/09/2014. Although, the successful candidates were asked to appear in a viva-voce test, yet the results of the 8 writ petitioners in WP (C) No. 6050/2013 were kept withheld in view of the order dated 15/05/2014 passed by this Court in MC No. 1245/2014 arising out of WP (C) No. 6050/2013, whereby the state respondents were restrained from declaring the results of the said writ petitioners pending disposal of the writ petition. In the mean time, WP (C) No. 5249/2014 was filed by the ad-hoc appointees as writ petitioners challenging the result of the written test declared on 19/09/2014 and 20/09/2014 contending inter-alia that a special recruitment drive for the writ petitioners with appropriate notification of 56 Nos. of posts out of the 100 sanctioned posts be carried out by giving due weightage to the job experience of the said petitioners. 6. After hearing the parties at length, the learned Single Judge had disposed of all the three writ petitions by the common judgment and order dated 09/12/2014 declining the prayer of the appellants for issuing a mandamus for conducting a special recruitment drive for the ad-hoc appointees by giving special weightage to their job experience. While disposing of the aforementioned writ petitions, the learned Single Judge had, however, made the following observations:- “20. Since the eight petitioners have already been permitted to sit in the examination and they accordingly appeared, perhaps the ends of justice shall be met if the respondents declare their results and if they are found to be qualified in the written test, then they may also be considered for viva voce. Since the eight petitioners have already been permitted to sit in the examination and they accordingly appeared, perhaps the ends of justice shall be met if the respondents declare their results and if they are found to be qualified in the written test, then they may also be considered for viva voce. If, however, any or some of them are found to have qualified in the written test as well as in the viva voce to be held, the Government may consider their case for condoning the age bar under the special circumstances, referred to above and give them the benefit of their merit shown in the written test and viva voce. The Government shall declare results of the viva voce test of all candidates and thereafter proceed in accordance with law to make appointment strictly in accordance with merit, however, observing reservation policy.” 7. Assailing the judgment and order dated 09/12/2014, Mr. Konwar, learned senior counsel appearing for the appellants has contended that the learned Single Judge had failed to appreciate the hardship that would be faced by the appellants if their cases are not considered in a special recruitment process, inasmuch as, the writ appellants who are now over aged, would be unable to compete with fresh candidates at this belated stage in life. That apart, submits Mr. Konwar the respondent authorities having been aware of the facts and circumstances of the case had taken a decision in principle to consider the cases of the appellants/writ petitioner for a special recruitment process by creating new posts. The learned senior counsel has, therefore, prayed for a direction to be issued to the State respondents in terms of the prayers made in the writ petition. 8. From the materials available on record, it appears that the challenge made to the earlier recruitment process initiated in the year 2002 had culminated into the filing of an SLP before the Apex Court whereby the Hon’ble Supreme Court had dismissed the said SLP by granting liberty to all the 56 ad-hoc appointees to participate in the selection process after hearing all the parties including the present appellants. The directions issued by the Apex Court makes it clear that the ad-hoc appointees i.e. the appellants here-in would also have to participate in the selection process if they wish to be appointed regularly. The directions issued by the Apex Court makes it clear that the ad-hoc appointees i.e. the appellants here-in would also have to participate in the selection process if they wish to be appointed regularly. It is, therefore, apparent that the claim for preferential/ special treatment made by the ad-hoc appointees clearly stood negated by the Apex Court. 9. That apart, the Service Rules of 2003 framed under the proviso to Article 309 of the Constitution of India lays down the procedure that is required to be followed in filling up the posts of AEI and EC. The Rules of 2003 are equally binding upon the candidates as well as the departmental authorities. The appellants cannot claim to have an enforceable right to be regularly absorbed in the post of AEI and EC in contravention of the provisions of the Recruitment Rules. Since the basic prayer of the writ appellants/ writ petitioners run counter to the scheme of the Service Rules of 2003 as well as basic philosophy enshrined in Articles 14 and 16 of the Constitution of India the same cannot be accepted merely on the ground that the petitioner having rendered service for 7 years as ad-hoc appointees deserved to be regularly absorbed in the said posts in a special recruitment process by giving a gobye to the Recruitment Rules. Accepting such a prayer would amount to issuing a writ compelling the state to act in a manner contrary to the provisions of the Rules. In the case of State of West Bengal v Subhas Kumar Chatterjee and Others reported in (2010) 11 SCC 694 the Apex Court had held that in exercise of powers conferred under Article 226 of the Constitution a mandamus cannot be issued compelling the State to act contrary to law as such directions may result in destruction of rule of law. 10. For the reasons mentioned hereinbefore, we are of the considered opinion that the decision and conclusion recorded by the learned Single Judge in the impugned judgment and order dated 09/12/2014 does not suffer from any illegality or infirmity warranting interference by this Court. In the result, this appeal must fail and is hereby dismissed. No order as to cost.