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2017 DIGILAW 1360 (GAU)

Rikbi Taipodia v. State of Arunachal Pradesh

2017-10-24

AJIT BORTHAKUR

body2017
JUDGMENT : 1. Heard Mr. K. Dubey, learned counsel appearing for the petitioner. Also heard Ms. A. Mize, learned Addl. Senior Government advocate appearing for State respondent Nos. 1 and 2 and Mr. R. Sonar, learned counsel appearing for respondent No. 3. 2. By preferring this writ petition under article 226 of the Constitution of India, the petitioner has challenged the legality and validity of order No. DoTCL/DIR/Estt-35/2016, dated 4.10.2016, issued by the respondent No. 1/Secretary, DoTCL, Government, of Arunachal Pradesh, Itanagar, whereby the private respondent No. 3, viz., Miss Ngunkam Lowang has been appointed to the post of Lower Division Clerk (‘LDC’), temporarily on officiating basis, in the Department of Tirap, Changlang and Longding (‘DoTCL’) Affairs, Government, of Arunachal Pradesh, Itanagar. 3. The case of the petitioner, in a nutshell, is that the petitioner was engaged as Skilled Contingency (Computer Operator) on temporary basis in the Department of DoTCL Affairs, Government, of Arunachal Pradesh, Itanagar vide appointment order No. DoTC/DIR/Estt-2/4-5. dated 27.12.2006 and since then she has been working in the said Department for the last 10 years without interruption. During the aforesaid continuous period of service, the petitioner being eligible, having necessary qualifications and senior most Skilled Contingency employee of the department approached the respondent-authority by filing representations on a number of occasions for regularization of her service, but not responded. The Chief Minister of Arunachal Pradesh recommended for her appointment as LDC on contract basis against the existing vacancy, as per recommendation of the parliamentary Secretary, after observing codal formalities but the aforesaid recommendation has not been complied with. Lastly, on 26.10.2016 also the petitioner submitted another representation for her appointment in the vacant post of LDC, however, her representation was also not considered and in the meantime, the petitioner has come to know that the private respondent No. 3, namely, Ms. Ngunkam Lowang has been appointed temporarily as LDC on officiating basis on approval of the Minister, DoTCL in violation of the recruitment procedure prescribed in the General Arunachal Pradesh Group “C” (Ministerial) Common Recruitment Rules, 2008. 4. Ngunkam Lowang has been appointed temporarily as LDC on officiating basis on approval of the Minister, DoTCL in violation of the recruitment procedure prescribed in the General Arunachal Pradesh Group “C” (Ministerial) Common Recruitment Rules, 2008. 4. Being aggrieved by the appointment of private respondent No. 3 in hush-hush manner ignoring the petitioner's eligibility, experience and seniority in the Department in violation of natural justice and administrative fair play, the petitioner has prayed to quash and set aside the aforesaid appointment order No. DoTCL/DIR/Estt-35/2016, dated 4.10.2016 whereby the private respondent No. 3 has been appointed as Lower Division Clerk (LDC) temporarily on officiating basis in the DoTCL and to appoint the petitioner in place of her or order for filling up the post through Departmental Promotion Committee (‘DPC’) by taking into consideration the criteria of seniority-cum-eligibility which is the most approved mode of appointment in the case of DPC. 5. The State respondent Nos. 1 and 2 in their affidavit-in-opposition stated and Ms. A. Mize, learned Addl. Senior Government Advocate submits that the private respondent No. 3 was appointed as Lower Division Clerk (‘LDC’) temporarily on officiating basis and not in hush-hush manner and further, that the promotion of the then LDC to the post of UDC, immediate filing up of the post of LDC was greatly felt in exigency of public interest. Therefore, approval of the competent authority was obtained. It has been further submitted that the appointment was not made on regular basis, but temporarily on officiating basis. Ms. A. Mize, learned Addl. Senior Government Advocate submits that the petitioner was engaged as Skilled Contingency (Computer Operator) with the condition that her engagement is purely on temporary basis and shall not have any right to claim regular appointment in future and further, it was stated that the service of the petitioner can be terminated by the competent authority without giving any reason/notice thereof. 6. Ms. Mize, learned Addl. Senior Government advocate also submits that the petitioner was never sincere and dedicated towards her duties. For the said reason on a number of occasions, she was served with notice of warning vide No. DoTCL/DIR/Estt-25/2010-11/2944-47, dated 12th July, 2012 and was again served with a Show-Cause Notice, dated 27th January, 2016 due to dereliction of duty and insincerity and in that regard, she gave an ‘UNDERTAKING’ stating that she would not repeat the same act in future. Moreover, as per common Recruitment Rules (‘RR’), there is no provision for promotion of the contingency staff to the post of LDC and the petitioner being a contingency staff is not eligible for claiming promotion to the post of LDC in the Department. 7. The private respondent No. 3 in her affidavit-in-opposition stated and Mr. R. Sonar, learned counsel appearing on her behalf submits that the writ petitioner has no semblance of any enforceable right to claim for regularization in the post of LDC, Group C post, under the relevant recruitment rules, i.e., the General Arunachal Pradesh Group C, (Ministerial) Common Recruitment Rules, 2008, amended in 2009, 2012 and 2015 as the rules provide for 90% of the post of LDC are to be filled by way of direct recruitment on the basis of merit adjudged through the common examination scheme and the rest 10% by promotion from amongst Group C staff in the Grade Pay of Rs. 1800 having requisite qualification of 12th class passed with typing skills and who have rendered 8 years of regular service in the grade. However, Mr. Sonar, submits that the petitioner was appointed as skilled Contingency (Computer Operator) in the DoTCL Affairs. Therefore, the petitioner is not entitled to be considered for regularization in the post of LDC and consequently, for want of legal right to hold the said post, the instant writ petition is not maintainable. Besides, the aforesaid facts, the petitioner is over-aged being aged about 37 years at the time of filing of the writ petition, whereas, under the aforesaid recruitment rules, the prescribed age limit for direct recruitment to the post of LDC is between 18 and 28 years. Therefore, the petitioner by virtue of being over-aged is ineligible for appointment to the post of LDC and, hence, she has no, locus standi, to challenge the appointment of the private respondent No. 3, who, otherwise, fulfils the requisite eligibility criteria. 8. Consequent thereto, the petitioner has replied by filing an affidavit-in-reply, that her seniority as Skilled Contingency employee and length of service and further, eligibility for appointment to the post have been overlooked by the respondent-authority. The petitioner has, further, submitted that the issue in the instant case is about illegal appointment of a person as a LDC without any interview overlooking the petitioner's seniority as Skilled Contingency staff of the Department. The petitioner has, further, submitted that the issue in the instant case is about illegal appointment of a person as a LDC without any interview overlooking the petitioner's seniority as Skilled Contingency staff of the Department. In para 7 of the affidavit-in-reply, the petitioner has contended as follows: “A that the rule 2(ii)(c) of the General Arunachal Pradesh ‘C’ (Ministerial) Common (Amendment) Recruitment Rules, 2012 clearly postulates provision for promotion of the contingency staff to the post of LDC. The words “rendered 3 years of regular service in the grade” clearly include ‘contingency staff who rendered 3 years of regular service in the grade. Otherwise, if “Regular Service” appeared in rule is means as “regular service” then the whole rule will be meaningless as there is no question of regularizing a person as LDC through DPC who already service a regular LDC for three years. And that cannot be intention of any legislation. Further, the intention of the Legislature for amendment of the Recruitment Rules can be clearly infer from the correspondent amendment to the General Arunachal Pradesh Peon/Chowkidar/Dak Runners/Sweeper/Kennel Man/Water Carrier Group ‘C’ (Non-Ministerial) common Recruitment (Amendment) Rules, 2011. Wherein rule 2(d) it is clearly provided as 25% posts shall be appointed from the serving ‘CONTIGENT STAFF’ who have put in a minimum of 20 years and more continuous service. Therefore, the petitioner having grade pay of Rs. 7500, possesses 12th passed certificate, having typing speed of 40 words per minute on manual type writer, having certificate of Diploma in Computer Application and serving the Department since 2006 as contingency LDC-cum-Computer Operator is eligible for promotion to the post of Regular LDC”. 9. It is noticed from the order No. DoTCL/DIR/Estt-2/4-5, dated 27.12.2006, vide Annexure-2 that the petitioner was engaged as Skilled Contingency (Computer Operator), purely on temporary basis, without any right to claim for regular appointment and subject to termination by the competent authority without giving any reason/notice. The petitioner has been continuing in the said post since she was so engaged on 27.12.2006 and her name appears at serial No. 1 in the order No. DoTC/DIR/Estt-2/4-5/Pt-II, dated 23.5.2016, in respect of the list of contingency staff. 10. The petitioner has been continuing in the said post since she was so engaged on 27.12.2006 and her name appears at serial No. 1 in the order No. DoTC/DIR/Estt-2/4-5/Pt-II, dated 23.5.2016, in respect of the list of contingency staff. 10. The General Arunachal Pradesh Group ‘C’ (Ministerial) Common Recruitment Rules, 2008 regulates the method of recruitment to the posts of ‘Lower Division Clerk’ Group C in various Departments under the Government of Arunachal Pradesh except Civil Secretariat/Assembly Secretariat/Governor Secretariat and Commissions. Under the aforesaid Rules of 2008, it is provided that the educational and other qualifications for direct recruitment to the post of LDC is (i) Matriculation or equivalent educational qualification from a recognized board, with (ii) a typing speed of 30 wpm, and (iii) Basic knowledge in computer application. So far the method of recruitment is concerned, it is provided that (i) 90% by direct recruitment, which shall be made on the basis of merit adjudged through the common examination scheme subjects, notified vide Government, notification No. OM.21/85, dated 28.8.2007, and (ii) 10% by promotion from amongst any Group D staff, who have rendered 5 years regular service in the grade and possessing qualifications, aforementioned, for direct recruitment except knowledge in computer application to be qualified by the test conducted by the Department. The aforesaid Rules of 2008 were amended by a notification, dated 6.12.2012, substituting the entries in Column (8) providing as follows: “(a) 12th class pass or equivalent qualification from a recognized Board or institution. (b) a typing speed of 30 wpm in English on manual typewriter or typing speed of 35 wpm on Computer (35 wpm corresponds to 10,500 key Depression per hour (KDPH) on an average of 5 key depression for each word). (c) 10% of the vacancies shall be filled from amongst Group C staff in the Grade pay of Rs. 1,800 and who possesses 12th class pass or equivalent qualification and a typing speed of 30 words per minute in English on manual typewriter or typing speed of 35 wpm on computer (35 wpm corresponds to 10,500 key Depression Per Hour (KDPH) on an average of 5 key depression for each word) and have rendered 3 years of regular service in the grade, on the basis of the merit adjudged through departmental qualifying examination.” 11. In Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 , the hon'ble Supreme Court categorically laid down that any public employment has to be in terms of the procedures, which specify necessary qualifications, mode of appointment, etc., and the Constitution does not envisage any employment outside this constitutional scheme and without following the recruitment method set down therein. The Apex Court further held that absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment de hors the constitutional scheme of public employment. 12. In the instant case, it is apparent that the respondent No. 3 has been appointed as LDC temporarily on officiating basis vide Annexure-1 without following the relevant recruitment rules stated above against permanent vacancy in complete disregard to the methods of recruitment by direct recruitment. This court is not concerned with the question whether the petitioner has fulfilled the requisite eligibility criteria for appointment to the post of LDC in the Department either through direct or Departmental method of recruitment, which is the province of the Department concerned. However, this court finds that the appointment of the private respondent No. 3 as LDC in the Department as such without following the prescribed mode of recruitment is certainly against the constitutional scheme of public employment, mandated by the Apex Court. 13. Be that as it may, it is implicit in the exercise of the extraordinary jurisdiction of this court under article 226 of the Constitution of India that the relief asked for must be one to enforce a legal right. The right that can be enforced should ordinarily be a personal or individual right of the petitioner himself/herself. 14. It is, in fact, not the petitioner's case that due to appointment of the respondent No. 3, she has been denied or deprived of the post to which she is legally entitled under relevant recruitment rules in order to be an aggrieved person. The petitioner, who is a Skilled Contingency Computer Operator, has failed to show that she has really a genuine grievance, because the temporary appointment on officiating basis of the respondent No. 3 as LDC in the Department prejudicially affected her interest, who is working as Skilled Contingency (Computer Operator) purely on temporary basis and yet to be regularized in the post. Hence, the petitioner's claim for relief for appointment as LDC in place of respondent No. 3 by way of the instant writ petition, de hors the recruitment rules cannot be granted. 15. For the reasons, set forth above, the writ petition stands dismissed. However, it is made clear that the dismissal of the instant writ petition shall not be a bar for the respondents/Department to consider the petitioner's representations for consideration for appointment on regular basis to the post of LDC as per the recruitment rules. With the above direction, this writ petition stands disposed of.