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2022 DIGILAW 710 (GAU)

Spandan Das S/o Surya Das v. State of Assam

2022-06-27

ACHINTYA MALLA BUJOR BARUA

body2022
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. B.D. Konwar, learned senior counsel for the petitioners, Mr. P. Sarma, learned counsel for the respondents in the Assam Fisheries Development Corporation (AFDC) and Mr. T.C. Chutia, learned Additional Senior Government Advocate for the respondent No. 1 in the Fisheries Department. 2. All the petitioners herein were engaged as per orders of the respondent No. 3 namely the Managing Director of AFDC on contractual/daily wage basis and were posted at various regions, locations, offices under the AFDC. According to the respondents, the engagements were on a temporary basis inasmuch as, the corporation found that there were insufficiency of employees in augmenting the fish production of the corporation. 3. The petitioners are aggrieved to the extent that the respondent authorities have stopped paying their salaries from the months of October/November, 2021 as the case may be. Some of the petitioners were issued show cause notices dated 03.03.2022, wherein they were informed that as per the records maintained by the AFDC, their appointments in the corporation were illegal and without following the proper Rules and Regulations of recruitment process of the Government of Assam i.e. without any advertisement and interview. Moreover, it was also alleged that the recruitment of the petitioners were in violation of Section 7 of the AFRBM Act. Accordingly, the petitioners were asked to give a written reply as to why they should not be terminated from their services. 4. There is a notice dated 26.04.2022 issued to the petitioners by the Commissioner and Secretary to the Government of Assam in the Fisheries Department asking them to appear before an enquiry committee constituted by the Government of Assam as regards the manner of their appointment and in the enquiry the petitioners were asked to bring along with them the appointment letters as well as the copies of the advertisement pursuant to which they may have been appointed. 5. Mr. P. Sarma, learned counsel for the respondents has made a categorical statement upon instruction from the respondents in the AFDC that according to the corporation, the appointment of the petitioners were per se illegal and therefore, an enquiry had been conducted. As the appointments of the petitioners, according to the respondents were illegal, therefore, the respondents are of the view that as because an enquiry had been initiated against them, therefore, they are not entitled to their salary. 6. As the appointments of the petitioners, according to the respondents were illegal, therefore, the respondents are of the view that as because an enquiry had been initiated against them, therefore, they are not entitled to their salary. 6. To substantiate the contention, Mr. P. Sarma, learned counsel for AFDC relies upon the pronouncement of the Supreme Court in State of Orissa and Another vs. Mamata Mohanty, (2011) 3 SCC 436 and specific reference has been made to the propositions in paragraphs 36 and 37 thereof. For an appropriate understanding of the propositions of the Supreme Court, paragraphs 36 and 37 are extracted as below: “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 of India. 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 appointments is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with 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. 37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competency of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at an initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” 7. If an order at an initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” 7. In paragraph 36, the Supreme Court had provided that no person can be appointed even on a temporary or ad-hoc basis without inviting applications from eligible candidates and the persons employed in violation of such provisions, are not entitled to any relief including the salary. In paragraph 37, it has been provided that it is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. 8. We are in agreement with the aforesaid proposition laid down by the Supreme Court, but reading of paragraphs 36 and 37 of the judgment of the Supreme Court does not make it discernible that a proposition of law had been laid down that if the authorities are of the view that an enquiry is required to be initiated for arriving at the acceptability of the appointment of an employee, from such stage itself the salary would be stopped. 9. The factual background in Mamata Mohanty (supra) is that certain persons were appointed as Lecturers without advertisement and without having the minimum eligibility of 54% marks in the Masters course. In the matter before the Supreme Court, the Lecturers involved therein took the stand that the Utkal University had condoned the deficiency by passing condonation orders from time to time. In such circumstance, the High Court had gave a direction for payment of the UGC scale to such Lecturers and the Supreme Court took a contrary view by arriving in its satisfaction that in the absence of any statutory provisions conveying competence upon the University to condone the deficiency of the minimum qualification, the view of the High Court was also unacceptable in law. 10. Another reference is made to the propositions of the Supreme Court in State of Bihar and Others vs. Devendra Sharma, (2020) 15 SCC 466 , wherein in paragraph 9 thereof certain propositions had been laid down in respect of termination of service of employees whose appointments were illegal. 11. 10. Another reference is made to the propositions of the Supreme Court in State of Bihar and Others vs. Devendra Sharma, (2020) 15 SCC 466 , wherein in paragraph 9 thereof certain propositions had been laid down in respect of termination of service of employees whose appointments were illegal. 11. The proposition of law laid down in Devendra Sharma (supra) would also be inapplicable in the present case inasmuch as, here is a case which is at a stage where the authorities had initiated an enquiry on the alleged appointment of the petitioner whereas in Devendra Sharma (supra) the stage was where the services were terminated as because the appointments were found to be illegal after completion of the proceedings. 12. In any view of the matter, the aforesaid propositions relied upon by Mr. P. Sarma, learned counsel for the respondents in the AFDC does not refer to any propositions that it would be open for the authorities to stop the salary of an employee merely because an enquiry had been initiated on the acceptability of their appointments. From such point of view, we direct the authorities in the respondents AFDC to pay the salary of the petitioners till such time the enquiries are conducted against the petitioners are brought to their logical end. It is further clarified that any enquiry or proceeding that may have been initiated against the petitioners may be brought to its logical end and any observations made in this order shall have no effect in such enquiry or proceeding. 13. The writ petition is allowed to the extent as indicated above.