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2019 DIGILAW 510 (GAU)

C. L. Rammuanawma v. Accountant General

2019-04-25

NELSON SAILO

body2019
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. J.C. Lalnunsanga, the learned counsel for the petitioners and Mr. C. Lalfakzuala, the learned counsel for all the respondents. 2. As many as 30 writ petitioners who claim to have a common cause of action have joined hands in filing the present writ petition. Brief facts of the case is that the respondent No. 1 on 23.04.2010 floated an Advertisement (Annexure-2) in the local daily 'Vanglaini', inviting applications from Indian Nationals, who are Commerce/Economics graduates for Training-cum-Contract appointment in the Office of the Accountant General, Mizoram. The total numbers of persons that was required as per the Advertisement was 50. The period of contract was to be for 11 months, extendable by further 11 months on mutual agreement of both the parties and the method of selection will be by written examination followed by an interview. 3. The petitioners accordingly responded to the Advertisement and were selected for appointment. The modalities for appointment, including the terms and conditions was earlier drawn up in a meeting held between the Office of the Accountant General, Mizoram and the Director of Higher & Technical Education on 14.04.2010. According to the petitioners, they were appointed in 2 batches. The first batch was appointed in the year 2010, while the other batch was appointed in the year 2016. As per the decision taken in the Meeting Minutes dated 14.04.2010 and also as per the Advertisement dated 23.04.2010, the petitioners have been engaged beyond their initial engagement of the 11 months. The last offer of engagement was issued on 1.9.2017 (Annexure - 7) whereby, it was again provided that the period of contract would be initially for 11 months, which is extendable by further terms of 11 months each on mutual agreement of both the parties and quarterly satisfactory performance. 4. The contract appointment of the petitioners having been extended from time to time, they were hoping that their contract service will be continued even after the expiry of 11 months as mentioned in the offer of engagement on contract basis dated 1.9.2017, as their performance was good and there was also exigency of service. However, on coming to learn that their contract engagement was not going to be extended beyond 31.08.2018, they filed a representation before the respondent No. 1 on 29.08.2018. However, on coming to learn that their contract engagement was not going to be extended beyond 31.08.2018, they filed a representation before the respondent No. 1 on 29.08.2018. In the said representation, they demanded that their contract appointment be renewed w.e.f. 1.9.2018 and further, in view of they having rendered long and efficient service, their service be regularized against the vacancies in the cadre of Senior Auditor/Auditor/Senior Accountant/Accountant. However, inspite of the representation, the respondents neither considered their regularization nor extended their engagement. Aggrieved, the petitioners filed their representations before the Chief Minister as well as the Governor of the State. As no positive response or otherwise was made by the authorities, they are before this Court. 5. Mr. J.C. Lalnunsanga, the learned counsel for the petitioners submits that the petitioners were appointed/engaged on contract basis, pursuant to the selection held for the purpose. They were initially engaged for a period of 11 months but the same was extended from time to time during the subsistence of the offer of engagement dated 01.09.2017. The petitioners have rendered their services, ranging between 2 years to 8 years. The learned counsel by referring to the Meeting Minutes dated 14.04.2010 as well as the offer of engagement on contract basis submits that the engagement can be terminated by either of the parties but however, only after giving a month's notice. Despite this, the petitioners were not given any notice and therefore, the respondents have failed to adhere to the principles of natural justice. 6. The learned counsel also refers to Rule 5 of the CCS Temporary Service Rules, 1965, whereby, issuance of 1 month's notice prior to termination of service is prescribed. He submits that though no written order, terminating their services have been issued but the petitioners were told by the respondent authorities orally not to continue attending the office. He submits that the oral termination otherwise is not permissible in law as held by the Allahabad High Court in Ram Bachan Maurya Vs. District Magistrate, Ghazipur & Ors., reported in (2000) 3 SLR 626 (All). In so far as the notice not being served prior to discontinue the services of the petitioners, the learned counsel places reliance upon the decision of the High Court of Jharkhand at Ranchi in LPA No. 117/2016 (Union of India Vs. Murari Kumar Yadav & Ors.) on 21.6.2016. District Magistrate, Ghazipur & Ors., reported in (2000) 3 SLR 626 (All). In so far as the notice not being served prior to discontinue the services of the petitioners, the learned counsel places reliance upon the decision of the High Court of Jharkhand at Ranchi in LPA No. 117/2016 (Union of India Vs. Murari Kumar Yadav & Ors.) on 21.6.2016. He also places reliance in the decision of the Apex Court in Satwati Deswal Vs. State of Haryana & Ors., reported in (2010) 1 SCC 126 , Jacob M. Puthuparambil & Ors. Vs. Kerala Water Authority & Ors., reported in (1991) 1 SCC 28 to contend that it is unfair and unreasonable to remove people who have been rendering service for quite some time, as such removal will have serious consequences economically. He also refers to the case of M/s. Scooters India Ltd. Vs. M. Mohammad Yakub & Ann, reported in (2001) 1 SCC 61 , to support his submission that there cannot be an automatic termination and that, the principles of natural justice will have to be complied with. 7. Mr. J.C. Lalnunsanga, the learned counsel by referring to the Communication dated 03.07.2018 (Annexure - 8) made by the Senior Deputy Accountant General to the Assistant Comptroller and Auditor General (N), New Delhi submits that the sanction strength and persons in position as on 1.7.2018 was intimated to the authority at New Delhi. As per the statement annexed to the said Communication, there are clearly sanction posts available and therefore, the engagement of the petitioners ought to have been continued by the respondent authorities. He also refers to the Note Sheet annexed as Annexure-18 A to the writ petition to contend that the administrative approval for the continuation of the contract of graduate trainees was duly prepared to be sent to the respondent No. 3. However, the respondent No. 1 for reasons best known to him, failed to communicate the proposal as was drafted by the Accounts Section of the establishment of the respondent No. 1. The learned counsel thus submits that considering the facts, the petitioners be reinstated in service w.e.f. the date of their termination i.e. 31.08.2018 with arrear pay. 8. Mr. However, the respondent No. 1 for reasons best known to him, failed to communicate the proposal as was drafted by the Accounts Section of the establishment of the respondent No. 1. The learned counsel thus submits that considering the facts, the petitioners be reinstated in service w.e.f. the date of their termination i.e. 31.08.2018 with arrear pay. 8. Mr. C. Lalfakzuala, the learned counsel for the respondents submits that the very purpose of engaging the petitioners was to train them in accounting and to prepare them for participating in the recruitment, conducted by the Staff Selection Committee (SSC) in various related posts. In this connection, he refers to paragraph No. 10 of the affidavit-in-opposition filed by the respondents on 13.03.2019. He further submits that the petitioners were not terminated from service but on the expiry of their period of engagement as per the offer of engagement on contract basis, issued on 01.09.2017, their term of appointment has only expired. Therefore, there is no requirement of giving them a notice as contended by the learned counsel for the petitioners. He also submits that as trainees, there is no impediment on the part of the petitioners to apply and compete in the selection process conducted by the SSC. They are only required to obtain prior permission from the competent authority. 9. Mr. C. Lalfakzuala, the learned counsel in support of his submissions have placed reliance upon the following authorities:- (i) M.P. Hasta Shilpa Vikas Vs. Devendra Kumar Jain & Ors., reported in (1995) 1 SCC 638 . (ii) State of Uttar Pradesh & Anr. Vs. Kaushal Kishore Shukla, reported in (1991) 1 SCC 691 . (iii) Lucy K. Sangma Vs. State of Meghalaya, reported in 2017 (4) GLT (ML) 838. (iv) Commissioner, Food & Civil Supplies, Lucknow, Uttar Pradesh & Ann Vs. Prakash Chandra Saxena, reported in (1994) 5 SCC 177 . 10. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the materials available on record. 11. As may be noticed, the issue to be decided is as to whether the petitioners can claim continuity in their contract employment and also for their absorption/regularization. If not, whether it will be incumbent on the part of the respondents to issue them a notice before discontinuing their engagement. 12. 11. As may be noticed, the issue to be decided is as to whether the petitioners can claim continuity in their contract employment and also for their absorption/regularization. If not, whether it will be incumbent on the part of the respondents to issue them a notice before discontinuing their engagement. 12. The Advertisement that was floated on 23.04.2010, provided that applications were invited from the graduates in Commerce or Economics for Training-cum-Contract appointment in the Office of the Accountant General, Mizoram. The period of the contract was to be for 11 months and extendable by further terms of 11 months on mutual agreement of both the parties. The Meeting Minutes dated 14.04.2010 also reveal that an action plan was made to impart Training on graduates of Mizoram Universities on official correspondence and accounting for contractual works. A selection from amongst eligible candidates for undergoing the Training was decided to be held to select as many as 50 graduates with the entire course of the Training to last for a period of 4 months. What transpires from the Meeting Minutes as well as from the Advertisement is that the sole purpose of the appointment was to impart Training amongst the graduates in Commerce & Economics, while also giving them a monthly fixed remuneration. To make the Training more competitive, a selection was held from amongst the eligible applicants. 13. The materials available on record further demonstrate the fact that regular appointment to the post of Senior Auditor/Auditor/Senior Accountant/Accountant is to be made through the SSC. Merely because the engagement of the petitioners continued for as long as 8 years in some cases, the same by itself cannot give them the right to continue beyond the period specified in the offer of engagement on contract basis. 14. In so far as the second issue is concerned, it may be noticed from the offer of engagement on contract basis dated 1.9.2017, the engagement of the petitioners was to last for 11 years. In other words, their engagement was to last till 31.8.2017. In absence of any extension of their engagement, their period of engagement will only come to an end on 31.08.2018. The question of giving them notice will only arise if a termination of their engagement is contemplated during the subsistence of the engagement period. 15. In other words, their engagement was to last till 31.8.2017. In absence of any extension of their engagement, their period of engagement will only come to an end on 31.08.2018. The question of giving them notice will only arise if a termination of their engagement is contemplated during the subsistence of the engagement period. 15. With regard to the submission of the learned counsel of the petitioners that the principles of natural justice has been violated, I am of the considered opinion that the same will only be attracted depending upon the facts and circumstances of a particular case. In the present case, as already observed herein above, there was no question of serving a notice to the petitioners since their period of engagement was not extended beyond 11 months from 01.09.2017 and it came to an end on 31.08.2018 as per the last engagement order. Therefore, no prejudice is also caused to the petitioners for non issuance of a notice. Thus, I find no force in the plea that the principles of natural justice has not been observed. 16. Considering the case in its entirety and also the authorities relied upon by the rival parties, I am of the considered view that the petitioners cannot be said to have any legitimate grievance which requires the interference of this Court. Also, the facts and circumstances involved in the authorities relied upon by the learned counsel for the petitioners and those in the present case are distinguishable and therefore, the same will require no discussion. It is a well settled law that in the absence of a legal right, a writ court cannot act on sympathy alone as was held by the Apex Court in State of Madhya Pradesh & Ors. Vs. Sanjay Kumar Pathak, (2008) 1 SCC 456 . Thus, the petitioners having failed to establish their legal right to continue to be engaged on contract basis, no relief can be granted by this Court. 17. While coming to the above finding, it is also noticed that the respondent No. 2 has issued a Notification on 20.08.2018 (Annexure-19) inviting applications from eligible employees of IA & AD through proper channel to fill up the vacant post in Senior Accounts Officer/Accounts Officer, Assistant Audit Officer, Senior Auditor, Senior Accountant and Data Entry Operator Grade 'A' Cadre in the office of the respondent No. 1 on deputation basis. However, according to the petitioners, no one has responded to the notification. A specific stand in this regard has been made in paragraph 16 of the writ petition. The respondents however in their affidavit-in-opposition have failed to make any effective reply to this averment. 18. Under the circumstance, it is hereby observed that if the respondents are in requirement of the services of the petitioners against the posts mentioned in the Notification dated 20.08.2018, they will be at liberty to do so. 19. But for the observation made herein above, the writ petition stands dismissed. No cost.