Nilotpal Das S/o Nikhil Chandra Das v. State of Assam, through the Commissioner and Secretary
2018-07-17
SUMAN SHYAM
body2018
DigiLaw.ai
JUDGMENT AND ORDER : 1. Heard Mr. I.H. Saikia, learned counsel for the writ petitioners. I have also heard Mr. N. Sarma, learned Standing Counsel, Secondary Education Department, Assam, appearing for respondent Nos. 1 to 4. 2. The writ petitioners herein were all appointed against sanctioned Grade-IV posts on various dates in the year 1994. Initially their appointments were for a period of four months but subsequently the period of appointment had been extended as a result of which all the writ petitioners have been rendering their services in the aforesaid Grade-IV posts till today. Being inter-alia aggrieved by the inaction on the part of the respondents to regularise their services, the writ petitioners have approached this Court seeking a direction upon the respondents to regularise their services. 3. It appears that after paying the salary to the petitioners for about two years from the date of their appointment, the authorities have stopped the salary of the writ petitioners although they are regularly discharging their duties as peon in the respective schools where they were initially appointed. 4. Mr. Saikia, learned counsel for the petitioners, submits that although the writ petition was instituted seeking a number of reliefs, yet, at this stage the petitioners are only praying for a direction to regularise their services and to pay them the current and arrear salaries as per the applicable rules. In support of his argument, Mr. Saikia has also relied upon paragraph 53 of the decision of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others vs. Umadevi and Others, (2006) 4 SCC 1 , to contend that the petitioners having been in continuous service for more than 10 (ten) years on being appointed against sanctioned posts, their services ought to have been regularised by the department in view of the law laid down by the Hon’ble Apex Court in the aforesaid decision. 5. Mr. Sarma, learned Standing Counsel, Education Department, has submitted that he has no instruction on the plea raised in the writ petition and therefore, is unable to make any submission before this Court. 6. In this case, as noted above, the writ petitioners were all appointed way back in the year 1994 and the present writ petition had also been instituted in the year 2012.
6. In this case, as noted above, the writ petitioners were all appointed way back in the year 1994 and the present writ petition had also been instituted in the year 2012. The order of appointment of the petitioners brought on record prima facie go to show that they were appointed on adhoc basis but against sanctioned posts. The order by which the appointment of the writ petitioners were extended is also available on record. From a perusal of the materials on record I am of the prima facie view that the petitioners have continued in service against sanctioned posts continuously for a period of more than 20 years without the assistance of any court order. 7. In the case of Umadevi and Others (supra) the Hon’ble Apex Court has made the following observations in paragraph 53:- “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagarjan (supra) and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 8.
The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” 8. From the aforesaid decision of the Supreme Court it is apparent that the service of such candidates, who have rendered continuous services for more than ten years against sanctioned posts and without the aid of any court order, would be entitled for regularisation as a onetime measure even if such appointments were irregular. Under the circumstances, it is apparent that the claim of the petitioners deserve appropriate consideration at the hands of the authorities. 9. Since the learned departmental counsel has not been able to render any assistance to this Court due to want of instruction, I dispose of this writ petition with a direction upon the respondent No. 2 to examine the respective cases of the writ petitioners and on such examination, if it is found that the petitioners had been appointed against sanctioned posts and they have been rendering continuous service since the date of their respective appointments till today without the assistance of any order from a Court or Tribunal then in that event, their cases will be processed for regularisation as per the law laid down by the Hon’ble Supreme Court as contained in paragraph 53 of the decision in the case of Umadevi and Others (supra). If it is found that the petitioners have been continuously rendering their services in the aforesaid Grade-IV posts, their arrear and current salary shall also be paid in accordance with the rules. The aforesaid exercise shall be carried out and completed within a period of three months from the date of receipt of a certified copy of this order. 10. With the above observation, this writ petition shall stand disposed of. No order as to cost.