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2022 DIGILAW 531 (GAU)

Smty Chera Yash D/o Shri Chera Tama v. State of A. P.

2022-05-23

DEVASHIS BARUAH

body2022
JUDGMENT : DEVASHIS BARUAH, J. 1. Heard Mr. M. Kato, learned counsel for the petitioner and Ms. P. Pangu, learned Government Advocate appearing on behalf of Respondent Nos. 1 to 4. 2. The instant writ petition has been filed challenging the order dated 12.10.2017, whereby the appointment of the petitioner as a Treasury Accountant in the establishment of Treasury Office, Tezu was held to be in contravention of the existing Recruitment Rules of the Treasury Accountant and as such held that the petitioner cannot be appointed to the post of Treasury Accountant. 3. The case of the petitioner, in brief, is that the petitioner was appointed temporarily as Treasury Accountant (T.A.) in the Pay Matrix Level-6 (Rs. 35,400-1,12,400) per month plus other allowances as admissible from time to time from the date of appointment to the post and posted in Tezu Treasury Office vide Smti Jenny Tayang, Treasury Accountant promoted to the post of Sub-Treasury Officer. Subsequent thereto, vide the W.T. Message, dated 27.07.2017, issued by the Director of Accounts and Treasuries, Government of Arunachal Pradesh to the Treasury Officers and Sub-Treasury Officers, it was mentioned that appointments to various post made by the then Director of Accounts and Treasuries during the month of May, 2017 or so, they were either made beyond sanctioned strength or without approval from the competent authority and joining of such appointees may be withheld till further orders. In consequence thereof, by the impugned order, dated 12.10.2017, issued by the Dev. Commissioner (F,P&I), Government of Arunachal Pradesh the appointment of the petitioner was held to be in contravention to the existing Recruitment Rules of the Treasury Accountant and as such, the petitioner cannot be appointed to the post of Treasury Accountant. Being aggrieved by the said order dated 12.10.2017, the petitioner had approached this Court under Article 226 of the Constitution of India. 4. This Court by an order, dated 31.05.2018, had issued notice. 5. The Respondent Nos. 1 and 2 had filed an affidavit-in-opposition. In the said affidavit-in-opposition, it was mentioned that the authority re-examined all the appointees credentials in reference to the Recruitment Rules of Treasury Accountant, wherein 5 (five) year regular service as experience is mandatory. 4. This Court by an order, dated 31.05.2018, had issued notice. 5. The Respondent Nos. 1 and 2 had filed an affidavit-in-opposition. In the said affidavit-in-opposition, it was mentioned that the authority re-examined all the appointees credentials in reference to the Recruitment Rules of Treasury Accountant, wherein 5 (five) year regular service as experience is mandatory. However, during the course of re-examination, it was found that out of 4 (four) appointees as Treasury Officer, i.e. namely Shri Chera Talam had 9 years experience as Sub-Treasury Accountant; Shri Tadar Gunting had 14 years experience in UDC and Shri Noksang Lowang had 6 years experience as in UDC whereas, the petitioner did not have any experience as like other three appointees and as such, the petitioner’s services were discontinued. It further appears from the perusal of the Paragraph-8 of the affidavit-in-opposition that due to exigency for running the Department by experienced staff, the services of the three appointees named above have been continued on humanitarian ground till the other alternative recruitment process was initiated. It has also mentioned that the authority has already taken steps to discontinue the above mentioned three appointees services as per the terms and conditions of appointment and to clear the way for recruitment process as per Recruitment Rules. It was also stated that Show Cause Notice for termination of services have also been issued to them, those who were allowed to continue service on humanitarian grounds. 6. I have heard the learned counsel for the parties. 7. Mr. M. Kato, the learned counsel appearing on behalf of the petitioner has submitted though as per the Recruitment Rules framed under the proviso to Article 309 of the Constitution i.e. Finance and Account service, Government of Arunachal (Recruitment to post of Treasury Accountant) Rules 1982, (hereinafter for short referred to as “the Rules”) the method of recruitment to the post of Treasury Accountant is by way of promotion but the petitioner along with the other 3(three) appointees have been duly appointed as direct recruits. He further submits by drawing the attention to Annexure-13 of the writ petition that the Department has all along never followed the said Recruitment Rules for the purpose of recruitment to the post of the Treasury Accountant inasmuch as, the persons shown in the provisional seniority list of the Treasury Accountant at serial no. He further submits by drawing the attention to Annexure-13 of the writ petition that the Department has all along never followed the said Recruitment Rules for the purpose of recruitment to the post of the Treasury Accountant inasmuch as, the persons shown in the provisional seniority list of the Treasury Accountant at serial no. 2, 4, 5 and 6 were all direct recruits who were recruited in the year 2003, 2005 as well as 2008. He further draws the attention to the affidavit-in-opposition and submits that while the petitioner’s services were discontinued but the discriminatory treatment meted out to the petitioner is apparent from the fact that in their own affidavit-in-opposition they have stated that the other 3 (three) persons, namely, Shri Chera Talam, Shri Tadar Gunting and Shri Noksang Lowang, were allowed to continue in service and they have been issued Show Cause Notice which has not been done in the case of the petitioner. 8. I have also heard Ms. P. Pangu, learned Junior Government Advocate appearing on behalf of the Respondents, who submits that the other 3(three) persons had experience as stated in Paragraph No. 8 of the affidavit-in-opposition, whereas the petitioner had no experience at all which was one of the requisites required for the purpose of appointment to the post of the Treasury Accountant. She further submits that the said 3(three) persons have been allowed to continue and, in the meantime, show-notices have been issued to the said 3(three) persons. It is relevant to mention herein that it appears from the records that the affidavit was filed in the year 2019 and we are in the year 2022 and on a specific query being made to the learned Government Advocate appearing for the State Respondents, she has not being able to state as regards what has happened pursuant to the issuance of the Show Cause Notice. 9. I have perused the Recruitment Rules. It appears from the Rules that the question of appointment through direct recruit to the post of the Treasury Accountant is not conceived inasmuch as, the recruitment to the post of Treasury Accountant is to be filled up through promotees. Consequently, the appointment of the petitioner as a direct recruit to the post of a Treasury Accountant is on the face of it in violation to the Rules which are statutory in nature. Consequently, the appointment of the petitioner as a direct recruit to the post of a Treasury Accountant is on the face of it in violation to the Rules which are statutory in nature. Though a submission has been made to the fact that no Show Cause Notice has been issued to the petitioner, but this Court is of the opinion that the doctrine of useless formality would squarely apply which is one of the exceptions to the principles of natural justice, inasmuch as even if a Show Cause Notice is issued, it shall not change the circumstances, inasmuch as the appointment of the petitioner was beyond the Rules. Consequently, this Court, therefore, does not find any merit in the writ petition for which the petition stands dismissed. 10. Before parting with the record, it is observed that as the petitioner’s service has been dispensed with on the ground that the recruitment to the post of Treasury Accountant has to be on the basis of promotees and not direct recruits, the respondent authority being a State is required to confirm to the doctrine of equality as enshrined under Article 14 of the Constitution of India whereby petitioner and the other direct recruits ought to be treated on equal footing. This Court has not passed an order granting benefits of such illegal action on the part of the Respondent Authorities to continue the service of the other direct recruits whose appointments were dehors the Rules as it would result in negative equality.