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2019 DIGILAW 737 (GAU)

Bina Devi v. Nabajit Das

2019-06-12

MICHAEL ZOTHANKHUMA

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JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. B. Chetri, learned counsel for the petitioner Smt. Bina Devi, in WP (C) No. 3594/2015 and respondent No. 6 in WP (C) No. 1254/2015. Also heard Mr. S. Roy, learned Counsel for the petitioner Shri. Nabajit Das in WP (C) No. 1254/2015 and respondent No. 6 in WP (C) No. 3594/2015. Also heard Mr. G. Pegu for the State Government and Mr. M. Khataniar for the BTC. 2. For easier for reference and disposal of the case, the facts and parties as reflected in WP (C) No. 1254/2015 are being referred to herein. The controversy relates to who should continue in the post of Assistant-cum-Data Entry Operator (DEO) in the Juvenile Justice Board (JJB), Udalguri. 3. The petitioners case is that applications had been invited from local candidates for filling up 2 (two) posts of Assistant-cum-DEO for JJB and CWC and 1(one) post of Messenger for JJB and CWC for the District Child Protection Committee, Udalguri, vide Advertisement dated 04.11.2013. The petitioner along with the respondent No. 6 took part in the selection process. The petitioner was selected and appointed for the post of Assistant-cum-DEO along with one Ms. Bronika Daimari, while one Shri Jayanta Basumatary was selected and appointed as Messenger, vide Office Order dated 04.12.2013. The respondent No. 6 was however allowed to continue working in the Assistant-cum- DEO post, as she had been working there earlier, though she was not selected in the selection process. On the other hand the petitioner was not allowed to work beyond two years from the time he gave his joining report on 05.02.2013. 4. The petitioners further case is that the respondent No. 6 thereafter moved this Court vide WP (C) No. 7391/2013 challenging the selection of the petitioner. However, WP (C) No. 7391/2013 was dismissed on withdrawal vide order dated 02.05.2014. The petitioner has thus prayed for a direction to be issued to the State respondents to allow him to work as Assistant-cum-DEO, as he has been selected and appointed in pursuance to the Advertisement dated 04.11.2013, vide appointment order dated 04.12.2013. 5. However, WP (C) No. 7391/2013 was dismissed on withdrawal vide order dated 02.05.2014. The petitioner has thus prayed for a direction to be issued to the State respondents to allow him to work as Assistant-cum-DEO, as he has been selected and appointed in pursuance to the Advertisement dated 04.11.2013, vide appointment order dated 04.12.2013. 5. The learned counsel for the petitioner submits that as the 2 (two) vacant posts of Assistant-cum-DEO had been filled up in pursuance to the Advertisement dated 04.11.2013 and as there is no challenge to the same except by way of WP (C) No. 7391/2013, which has been withdrawn, the respondent No. 6 cannot make any claim for extension of her service beyond her contractual period, as that would amount to making an indirect challenge to the selection and appointment Order dated 04.12.2013, made in pursuance to the Advertisement dated 04.11.2013. He also submits that the respondent No. 6 having withdrawn WP (C) No. 7391/2013 on 02.05.2014, there cannot be any challenge made to the appointment of the petitioner as no liberty had been prayed for or granted by the High Court for filing the same afresh, while dismissing WP (C) No. 7391/2013 as withdrawn. 6. The case of the respondent No. 6, on the other hand, is that she was initially offered to be temporarily engaged by the District Social Welfare Officer, Udalguri, as Assistant-cum- DEO in the Juvenile Justice Board, Undaguri on 19.03.2011. Thereafter, a Deed of Agreement dated 19.03.2012 was executed between the District Social Welfare Officer-cum-In-charge, District Child Protection Officer, Udalguri and the respondent No. 6. Thereafter, vide Office order dated 23.08.2012, the respondent No. 6 was formally engaged. Though the service of the respondent No. 6 was extended by the Social Welfare Officer from time to time, the respondent authorities have not extended her service formally beyond April 2014. However, the respondent No. 6 is still working as Assistant-cum-DEO till date. The respondent No. 6 has also been paid her salary till February 2015. 7. Mr. G. Pegu, learned counsel appearing for the State respondents submits that the stand of the respondent No. 1 is reflected in para 6 of the affidavit-in-opposition filed by the respondent No. 1. However, the respondent No. 6 is still working as Assistant-cum-DEO till date. The respondent No. 6 has also been paid her salary till February 2015. 7. Mr. G. Pegu, learned counsel appearing for the State respondents submits that the stand of the respondent No. 1 is reflected in para 6 of the affidavit-in-opposition filed by the respondent No. 1. He submits that the contract of the respondent No. 6 was extended till 31.03.2014, on the basis of the decision taken by the Executive Board Meeting of the State Child Protection Society (SCPS) held on 30.05.2013. He also submits that the contention that the SCPS never renewed the contract of the respondent No. 6 is partially correct, but on the other hand, since the respondent No. 6 was discharging her duties, SCPS has released her salary till 28.02.2015. Thus, it can be considered that the petitioner had served one more tenure on contract basis for 11(eleven) months, after which, due to an interim order of this Court passed in WP (C) No. 1254/2015, the salary of the respondent No. 6 has been stopped. He submits that the Advertisement dated 04.11.2013 seems to have been published without approval of the competent authority. 8. Mr. M. Khataniar, learned counsel appearing for the BTC submits that the appointment of the respondent No. 6 as Assistant-cum-DEO for JJB was purely temporarily as can be seen from Office order dated 23.08.2012, issued by the District Social Welfare Officer, Udalguri. Further, the selection and appointment of the respondent No. 6 was done without there being any regular process of selection, as is reflected in the Letter dated 04.02.2015, issued by the District Social Welfare Officer-cum-In-charge, District Child Protection Officer, Udalguri, BTAD. 9. I have heard the learned counsels for the parties. 10. It is not disputed by the petitioner and the respondent No. 6 that they took part in the selection process pursuant to the Advertisement dated 04.11.2013. This is clear from para 4 of the withdrawn writ petition, filed by the respondent No. 6 earlier i.e. WP (C) No. 7391/2013. The Annexure in WP (C) No. 1254/2015 also shows that the respondent No. 6 secured less marks than the writ petitioner herein, in the selection process held in pursuance to the Advertisement dated 04.11.2013. This is clear from para 4 of the withdrawn writ petition, filed by the respondent No. 6 earlier i.e. WP (C) No. 7391/2013. The Annexure in WP (C) No. 1254/2015 also shows that the respondent No. 6 secured less marks than the writ petitioner herein, in the selection process held in pursuance to the Advertisement dated 04.11.2013. The respondent No. 6 in WP (C) No. 7391/2013 had prayed for setting aside the selection of the petitioner as Assistant-cum- DEO for the JJB, Udalguri, which had been made on the basis of the select list dated 04.12.2013 in pursuance to the Advertisement dated 04.11.2013. The Order dated 02.05.2014 shows that the writ petition has been dismissed on withdrawal. No liberty has been given to the respondent No. 6 to file a subsequent writ petition challenging the appointment of the writ petitioner. In the writ petition filed by the respondent No. 6, i.e. WP (C) No. 3594/2015, the prayer of the respondent No. 6 is only for a direction to the State respondents to extend the service of the petitioner as Data Entry Operator in JJB, Udalguri beyond 31.03.2014. This prayer of the respondent No. 6 cannot be entertained, as the extension of the respondent No. 6s service as Assistant-cum-DEO can be made only if the appointment of either of the selected candidates of Assistant-cum-DEO made vide Office order dated 04.12.2013, in pursuance to the Advertisement dated 04.11.2013 is cancelled, withdrawn or terminated. The respondent No. 6 is trying to do indirectly what cannot be done directly, as the respondent No. 6 having taken part in the selection process cannot turn around and challenge the selection process and its outcome, especially when the WP (C) No. 7391/2013 has been withdrawn, without any leave being granted to file afresh. In any event, the respondent No. 6 has not challenged the selection and appointment of the petitioner and the other selected candidate in WP (C) No. 3594/2015. 11. The above being said, there is nothing brought on record to show that any advertisement had been issued, pursuant to which the appointment of the respondent No. 6 as Assistant-cum-DEO had been made. There is also nothing forthcoming from the State respondents besides the Deed of Agreement dated 19.03.2012. 11. The above being said, there is nothing brought on record to show that any advertisement had been issued, pursuant to which the appointment of the respondent No. 6 as Assistant-cum-DEO had been made. There is also nothing forthcoming from the State respondents besides the Deed of Agreement dated 19.03.2012. The Deed of Agreement dated 19.03.2012 seems to be a document made only to show that an advertisement had been published and a proper selection had taken place, on the basis of which the respondent No. 6 was appointed on 23.08.2012. The documents on record before this Court however do not indicate that any advertisement had been issued or any regular selection process had taken place before appointing the respondent No. 6 as Data Entry Operator. There is nothing produced or stated by the parties in support of the said statement made in the Agreement dated 19.03.2012. The writ petition filed by the respondent No. 6, shows that the respondent No. 6 was offered temporary engagement as Assistant-cum-DEO by the District Social Welfare Officer and thereafter an agreement was entered into between them. There is no whisper that any advertisement was issued or that selection had taken place in the State Government affidavits. 12. The documents on record show that only one Agreement dated 19.03.2012 has been executed between the respondent No. 6 and the State respondents to enable the respondent No. 6 to work as a Data Entry Operator. The said Agreement dated 19.03.2012 shows that the engagement of the respondent No. 6 is purely temporarily and on contractual basis and for a period of 11(eleven) months. Besides the Agreement dated 19.03.2012, no further agreement has been made between the respondent No. 6 and the State respondents, extending the contractual period of service of the respondent No. 6. Letter No. SCPO(U) 102/14/2 dated 04.02.2015 issued by the District Social Welfare Officer i/c District Child Protection Officer, Udalguri, which is addressed to the Administrative Officer, SCPS, Assam, has been produced today by the counsel for the BTC. The same is to the effect that the respondent No. 6 was temporarily engaged as Assistant-cum-DEO w.e.f., 19.03.2013 to 31.08.2013 and that her service has not been extended thereafter. It also states that there was no regular process of selection while appointing the respondent No. 6. The same is to the effect that the respondent No. 6 was temporarily engaged as Assistant-cum-DEO w.e.f., 19.03.2013 to 31.08.2013 and that her service has not been extended thereafter. It also states that there was no regular process of selection while appointing the respondent No. 6. The Letter dated 04.02.2015, issued by the District Social Welfare Officer i/c District Child Protection Officer, Udalguri, is made a part of the record and marked as Annexure "X." 13. In the case of State of Orissa vs. Mamata Mohanti, 2011 (3) SCC 436 , the Apex Court has held at para 35 & 36 as follows:- "35. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit." Taking into consideration the law laid down by the Apex Court in the case cited above, it is clear that the appointment of the respondent No. 6 vide the Office order dated 23.08.2012 and the Deed of Agreement dated 19.03.2012 has been made in violation of Article 14 & 16 of the Constitution, as no advertisement had been issued before appointing the respondent No. 6 as Assistant-cum-DEO on temporary contract basis. Further, there is no extension of the service of the respondent No. 6 beyond April 2014, as pleaded by the counsel for the respondent No. 6. Thus, from the above facts, this Court does not find any infirmity in the State respondents filling up the 2(two) vacant posts of Assistant-cum-DEO on the basis of the Advertisement dated 04.11.2013. 14. Para 6 of the affidavit-in-opposition of the Government in WP (C) No. 3594/2015 is to the following effect:- "6. That with regard to the statement made in paragraph 5 of the writ petition, the deponent begs to state that the extension of service (contract) of any employee under Integrated Child Protection Scheme, at the State Level or District Level is matter to be decided by the Executive Board of State Child Protection Society. As clearly mentioned para 4 of the petition that the petitioners contract was extended till 31.3.2014 was a decision taken in the Executive Board meeting of SCPS held on 30.05.2013. As clearly mentioned para 4 of the petition that the petitioners contract was extended till 31.3.2014 was a decision taken in the Executive Board meeting of SCPS held on 30.05.2013. The contention that SCPS never renewed the contract of the petitioner is partially correct cut in the other hand since the petitioner was discharging her duties, SCPS has released her salary till 28 February, 2015 which can be considered that the petitioner has served one more tenure of contract of 11 months, after which due to an Interim Order of this High Court in this same matter in WP (C) No. 1254/2015, SCPS has stopped releasing the salary of the petitioner." On going through, the pleadings made in the writ petitions and the documents that are in the above writ petitions and the withdrawn WP (C) No. 7391/2013, this Court finds that the stand of the State respondents as shown above, is very peculiar. They are supporting the stand of the respondent No. 6, without there being any proof or basis to support the respondent No. 6. In any event, the State respondents have neither cancelled the Advertisement dated 04.11.2013 or the Office order dated 04.12.2013, by which the writ petitioner has been appointed to the post of Assistant-cum-DEO along with other persons. In the case of State of Kerala vs. M.K. Kunhikannan Nambian Manjeri Manikoth, Naduvi (Dead) and Others, 1996 (1) SCC 436 and in the case of Krishna Devi Malchan Kamathia and Others vs. Bombay Environmental Group and Another, 2011 (3) SCC 630, the Apex Court has held that official decisions are presumed to be valid until set aside or otherwise held to be invalid by a Court of competent jurisdiction. In the present case, the State respondents have not cancelled or withdrawn the Advertisement dated 04.11.2013 and Office order dated 04.12.2013. The respondent No. 6 has also not challenged the same in her writ petition, i.e. WP (C) No. 3594/2015. Accordingly, this Court finds the Advertisement dated 04.11.2013 and the Office order dated 04.12.2013 to be valid and binding decisions of the State respondents as on date. In the selection process held in pursuance to the Advertisement dated 04.11.2013, the respondent No. 6 had secured less marks than the petitioner. Accordingly, this Court finds the Advertisement dated 04.11.2013 and the Office order dated 04.12.2013 to be valid and binding decisions of the State respondents as on date. In the selection process held in pursuance to the Advertisement dated 04.11.2013, the respondent No. 6 had secured less marks than the petitioner. However, without going further into the stand taken by the State respondents, it is clear from the facts stated above that the respondent No. 6 has participated in the selection process in pursuance to the Advertisement dated 04.11.2013 and as the respondent No. 6 had withdrawn WP (C) No. 7391/2013, without being given any liberty to file the same afresh, this Court does not find any merit in the case of the respondent No. 6 B. Devi in WP (C) No. 3594/2015 to claim extension of her service as Assistant-cum-DEO. WP (C) No. 3594/2015 is accordingly dismissed. 15. In respect of the writ petitioner in WP (C) No. 1254/2015, the State respondents are directed to allow the writ petitioner N. Das to work in the post of Assistant-cum-DEO for JJB and to give him his salary for the period of work done. WP (C) No. 1254/2015 is accordingly allowed.