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2022 DIGILAW 864 (GAU)

State Of Assam v. Ajit Gogoi

2022-08-09

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Heard Mr. R Mazumdar, learned counsel for the review petitioners and Mr. UK Nair, learned senior counsel assisted by Ms. K Devi, learned counsel for the respondents in the review petitions, meaning thereby the writ petitioners of the respective writ petitions, against the judgments of which, the review petitions have been filed. 2. We are taking up all the review petitions in a common hearing and to be given its consideration by a common judgment and order from the point of view that the legal issue involved and urged upon in the review petitions are same. 3. All the writ petitions were filed raising a common grievance, amongst others, that the respective writ petitioners were appointed during the period 1993 to 1995 or in certain cases may be a little earlier or a little later against various posts of Grade-III and Grade-IV in the provincialised schools in the State of Assam. The petitioners claimed that the procedure adopted in making their appointments were in conformity to the due procedure of selection under the Rules whereas the review petitioners in the Education Department disputes to the extent that all such appointments may not have been by following the due procedure of selection. But, considering the nature of the issue involved in this batch of review petitions, we are not required to go into the issue as to whether the writ petitioners were appointed by following the due procedure of law or as contended by the review petitioners Education department that they were not. 4. In the writ petitions, a common stand had been taken that all the writ petitioners were appointed against sanctioned vacant posts at the relevant point when they were appointed. We have perused one such writ petition being WP(C) No. 7485/2015, wherein in paragraph 5, a specific stand had been taken that the appointments were made against sanctioned vacant posts and they are continuing in service. 5. Paragraph 5 of the writ petition WP(C) No. 7485/2015 had been countered by the review petitioners in the Education department in paragraph 8 of the affidavit in opposition of the Joint Director of Secondary Education, Assam, wherein a stand had been taken that the writ petitioners were appointed on ad-hoc basis without following the due procedure of law and therefore, their salaries were stopped by the Government. It was also stated that the appointments of the writ petitioners were in excess and hence the retention of their posts were also stopped by the Government. 6. The very stand that the appointments of the writ petitioners were in excess of the available posts has to be understood to be a stand of the review petitioners in the Education Department that the writ petitioners were not appointed against sanctioned vacant posts. Be that as it may, writ petitions similar to that of WP(C) No. 7485/2015 were instituted by others raising the same contention that the writ petitioners therein were appointed against sanctioned vacant posts and being appointed against sanctioned vacant posts, they are entitled to the benefits provided in paragraph 53 of the Judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka and others –vs-Uma Devi (3) and others, reported in (2006) 4 SCC 1 . 7. The other writ petitions being WP(C) No. 2921/2015 and others were given a final consideration by the judgment and order dated 30.09.2015. In WP(C) No. 7485/2015, the final consideration was given by the judgment and order dated 22.02.2017, which in fact was delivered following the earlier judgment dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions. This batch of review petitions are against the judgment and order dated 22.02.2017 in WP(C) No. 7485/2015 as well as the judgment and order dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions. 8. In the judgment and order dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions, in paragraph 7 thereof, a conclusion was arrived at that on a comparative reading of the pleadings of the parties, it would be revealed that there was no dispute about rendering of service by the writ petitioners therein in the various posts by way of ad-hoc appointments for more than 15 years. There was a further conclusion arrived that there was also no dispute between the parties that the writ petitioners were appointed on ad-hoc basis against sanctioned vacant posts as on those days the system of ad-hoc appointment was prevalent. A third conclusion was also arrived at that there was no dispute that the writ petitioners were qualified for the posts against which they were appointed. 9. A third conclusion was also arrived at that there was no dispute that the writ petitioners were qualified for the posts against which they were appointed. 9. The aforesaid three circumstances were carved out by the Court in its judgment and order dated 30.09.2015 on the premises that the aforesaid three conditions are the conditions precedent as provided by the Hon’ble Supreme Court in its judgment in Uma Devi (3) (supra) in paragraph 53 thereof. In the judgment in Uma Devi (3) (supra), a proposition of law had also been laid down that if the aforesaid three conditions are satisfied and the incumbents therein had continued in service without the aid of any interim order of the Court, they would be entitled to a process of regularization of their service as a onetime measure. In the judgment dated 30.09.2015 in WP(C) No. 2921/2015 a reference also was made to an Office Memorandum dated 27.06.2013 of the Finance Department of the Government of Assam, wherein a decision was conveyed for regularization of the services of those employees as a onetime measure who satisfies the aforesaid three conditions as well as remained in service without the aid of any interim order of any Court. 10. Having arrived at such conclusion in paragraph 7 of the judgment and order dated 30.09.2015, reference was made to the proposition laid down in Uma Devi (3) (supra) and accordingly, in paragraph 8 of the said judgment, it was concluded as extracted:- “8. In the case at hand also, the petitioners were initially appointed against vacant posts of Grade – IV on ad hoc basis in various High and Higher Secondary Schools of Sivasagar district. It is not the case of the respondent authorities that they are not qualified for the posts. The petitioners have also rendered more than ten years of continuous service in their respective posts without the benefit or protection of the interim order of any court or tribunal except after 04-10-2012 (by which time they had already completed more than ten years of continuous service). Under the circumstances, in my judgment, the time has now come for the State respondents to take a one time measure to regularize the services of the petitioners against the posts in they are hitherto working. In the view that I have taken, the impugned decision contained in the circular dated 5-5-2015 cannot be sustained in law. Under the circumstances, in my judgment, the time has now come for the State respondents to take a one time measure to regularize the services of the petitioners against the posts in they are hitherto working. In the view that I have taken, the impugned decision contained in the circular dated 5-5-2015 cannot be sustained in law. In fact, the Government of Assam in the Finance Department has issued the Office memorandum dated 27- 6-2013 with the following instructions consistent with the decisions of the Apex Court: “2. The State Government will now like to take the “One time measure” the regularization of those workers as referred to in paragraph 53 of the orders in Uma Devi’s case read with Kesari’s case, whereby exception was craved out to regularize all employees who fulfill the following three conditions:- (i) Who have been working continuously for 10 years or more as on 10.04.06 i.e. the date of passing of the judgment in Uma Devi’s case without the benefit or protection of the interim order of any court or Tribunal. (ii) Who have been engaged against sanctioned vacant posts. (iii) Who have requisite qualification to hold the post 3. It is therefore necessary to undertake One time exercise to regularize those W.C..M.R. and similarly placed workers who have fulfilled all the above three conditions for due compliance of the direction passed by the Hon’ble Supreme Court of India in the above mentioned cases. 4. In view of above, all the Departments shall undertake One time exercise for regularization of services of those employees who fulfill all the three conditions as mentioned in para 2 strictly in compliance of the orders of the Hon’ble Supreme Court of India and then place the proposal before the Cabinet towards regularization of services of those employees who were engaged against vacant sanctioned posts in which they are continuing since their appointment”. 11. 11. A reading of the proposition laid down in paragraph 8 of the judgment and order dated 30.09.2015 in WP(C) No. 2921/2015 would makes it discernible that by following the proposition of the Office Memorandum dated 27.06.2013 of the Finance Department of the Government of Assam as regards regularizing such employees who fulfil the aforementioned three conditions and remained in service without the aid of any interim order of the Court, there was a decision and direction that in respect of the petitioners who fulfil the required qualification, a onetime measure to regularize their service be taken. 12. This batch of review petitions are instituted on the ground that the presumption arrived at by the Court in its judgment dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions in paragraph 7 that there is no dispute between the parties that the writ petitioners were appointed on ad-hoc basis against sanctioned vacant posts, is an incorrect acceptance of a fact by the Court. Reference is made that although there may have been an assertion by the writ petitioners in the writ petitions that they were appointed against sanctioned vacant posts, but there is also a counter contention by the authorities in the Education department that the writ petitioners were not appointed against sanctioned vacant posts. 13. In view of the assertions and counter assertions, there was a requirement of a factual determination as to whether the petitioners were appointed against sanctioned vacant posts. But in the judgment under review dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions which was also followed in the judgment dated 22.02.2017 in WP(C) No. 7485/2015, no such factual conclusion had been arrived that the writ petitioners were appointed against sanctioned vacant posts and there is merely an assumption that there is no dispute that they were appointed against sanctioned vacant posts. 14. This batch of review petitions are instituted on the aforesaid ground that for an appropriate adjudication of the writ petitions, there was also a necessity to arrive at a factual conclusion as to whether the writ petitioners were appointed against sanctioned vacant posts. 15. The question as to whether an employee is appointed against a sanctioned vacant post is always a question of fact. 15. The question as to whether an employee is appointed against a sanctioned vacant post is always a question of fact. An employee can be said to have been appointed against a sanctioned vacant post, if at the time of the appointment vacant sanctioned posts were available in that particular organization where the concerned employees were appointed. A conclusion as to whether an employee was appointed against sanctioned vacant post would be a person specific conclusion as to whether the particular employee was appointed against a sanctioned vacant post and it cannot be a question of a general proposition in a joint writ petition filed by several persons that they were in fact appointed against sanctioned vacant posts. 16. Considering the limited grievance raised in this batch of review petitions, we are inclined to allow the review petitions to the limited extent that there is a requirement under the law to arrive at an individual factual satisfaction as to whether a given writ petitioner was appointed against sanctioned vacant post, which again would depend solely on the facts and circumstances of each individual appointment. Otherwise, as regards the general proposition accepted in the judgments under review dated 30.09.2015 in WP(C) No. 2921/2021 and other writ petitions and 22.02.201 in WP(C) No. 7485/2015, we are agreeing with such proposition that if the three aforementioned conditions are satisfied and the petitioners concerned continued in service beyond the period of ten year as on 21.04.2016 without the aid of an interim order of any Court, such petitioners would be entitled to a consideration for regularization as a onetime measure as per the proposition laid down by the Hon’ble Supreme Court in paragraph 53 of Uma Devi (3)(supra). 17. But to have the benefit of the aforesaid proposition, there also have to be an individual factual conclusion to be arrived that the person concerned amongst others, was appointed against a sanctioned vacant post. 18. In the circumstance, we require the individual writ petitioners to make an application before the Secretary to the Government of Assam in the Secondary Education Department stating in detail the dates of appointment, the names of the institutions where they were appointed, the procedure adopted for such appointments, the posts to which the appointments were made as well as the post creation number, if available. Upon the individual applications being submitted, the Secretary to the Government of Assam in the Secondary Education Department shall call for the individual records from the respective schools where the writ petitioners were appointed. From the records, the Secretary shall verify as to what was the number of sanctioned posts in respect of the posts where the individual petitioners were appointed and also to find out as to whether on the day when the appointments were made, any of the sanctioned posts, if available, were vacant. 19. If the answer is in the affirmative, it has to be understood that irrespective of the manner of appointment of the writ petitioners, they were appointed against sanctioned vacant posts. If the conclusion arrived at would be contrary that no sanctioned vacant posts were available on the day the appointments were made, the conclusion may be arrived at that the persons concerned were not appointed against any sanctioned vacant post. If the conclusion arrived at is that the persons concerned were appointed against the sanctioned vacant posts, the provisions of the two judgments dated 30.09.2015 in WP(C) No. 2921/2015 and other writ petitions and 22.02.2017 in WP(C) No.7485/2015 requiring their regularization as a onetime measure would be applicable and also be complied with. 20. In respect of those writ petitioners where the conclusion arrived is that they were not appointed against the sanctioned vacant posts, it would be for the authorities in the Secondary Education Department to take any appropriate decision against them as may be available under the law. 21. The review petitions are partly allowed only to the extent indicated above and the conclusion that there was no dispute that the writ petitioners were appointed against sanctioned vacant posts is recalled and substituted by the requirement of this order to make a factual verification in respect of the individual writ petitioners. 22. Mr. R Mazumdar, learned counsel for the review petitioners states that the aforesaid exercise can be initiated and completed within a period of three months from the date of receipt of a certified copy of this order. 23. Let it be so. The review petitions are partly allowed as indicated above.