Gauhati High Court
Simanta Rongson vs The State Of Assam And 4 Ors on 18 November, 2021
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GAHC010176872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5743/2021
SIMANTA RONGSON
S/O SRI KANDURA RONGSON, VILL- NARTAP AMGURI, P.O. AND P.S.-
NARTAP, DIST-KAMRUP(M), ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVT OF
ASSAM, HEALTH DEPARTMENT, DISPUR, GHY-6
2:THE PRINCIPAL COMMISSIONER AND SECRETARY
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GHY-6
3:THE DEPUTY COMMISSIONER
KAMRUP(M)
GHY-1
4:THE JOINT DIRECTOR OF HEALTH SERVICE
KAMRUP(M)
GHY-3
5:THE SUPERINTENDENT OF DISTRICT HOSPITAL
SONAPUR
KAMRUP(M
Advocate for the Petitioner : MR B KHAKHLARY
Advocate for the Respondent : SC, HEALTH
Page No.# 2/5
Linked Case : WP(C)/5850/2021
NABALATA DAS AND 2 ORS
W/O- LT. SANDI RAM DEKA
VILL- MOIRAKUCHI
P.O. DIGARU
P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 782401
2: PRANAB KALITA
S/O- SRI HOLIRAM KALITA
VILL- TATIMARA
P.O. CHANDRAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 781150
3: DEEPA TERON
D/O- LT. NAGA TERON
VILL- MITONI (KALIKAJARI)
P.O. MALOIBARI
P.S. KHETRI DIST.- KAMRUP (M) ASSAM
PIN- 782403
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY COMM. AND SECY. TO THE GOVT. OF ASSAM HEALTH DEPTT.
DISPUR
GHY-6
2:THE PRINCIPAL COMMISSIONER AND SECRETARY
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
KAMRUP (M)
GHY-1
4:THE JOINT DIRECTOR OF HEALTH SERVICE
KAMRUP (M)
GHY-3
5:THE SUPERINTENDENT OF DISTRICT HOSPITAL
SONAPUR
KAMRUP (M)
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Advocate for : MR B KHAKHLARY
Advocate for : SR. GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
18.11.2021
Heard Mr. B. Khakhlary, learned counsel for the petitioners in both the cases. Mr. D.P.
Borah, learned Standing Counsel, Health Department appears for the respondent nos. 1, 2
and 4. Ms. M.D. Borah, learned counsel appears for the respondent no.3 in both the writ
petitions.
2. The subject matter and issue in both the writ petitions being the same, both the writ
petitions are being disposed of by this common judgment and order.
3. The writ petitions have been filed by the petitioners as they have been released from
their continuous engagement w.e.f. 01.11.2021 vide "Notice Period" dated 24.09.2021. The
case of the petitioners is that they have been engaged as Cleaner, Office Assistant and
Computer Assistant since the year 2015 in the District Hospital, Sonapur, Kamrup(M).
However, pursuant to a resolution passed by the Governing Body of the District Hospital,
Sonapur, Kamrup(M) on 08.09.2021, it has been decided to release the petitioners from their
service w.e.f. 01.11.2021 and accordingly the "impugned period" dated 24.09.2021 was
issued by the respondent no.5.
4. The petitioners' counsel submits that the petitioners have been working diligently in
the hospital even on holidays and that they have got no other means of livelihood to look
after their families. He submits that the engagement of the petitioners in their respective jobs
should be regularized and the "Notice Period" dated 24.09.2021 should be set aside.
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5. Mr. D.P. Borah, leaned Standing Counsel for the Health Department submits that the
petitioners were engaged by the Hospital Management Society in the year 2015 and they
have been working since 2015. The remuneration given to the petitioners was out of the
money collected from the Registration Fees taken from patients and other charges paid by
the patients for investigation purposes. The Counsel for the Health Department submits that
as the Government has decided that there would be no more fees collected from the patients
for investigation purposes and as the money collected for Registration Fees was not enough
to pay the remuneration of the petitioners, the Management Committee of the Hospital were
of the view that the engagement of the petitioners should be discontinued. Accordingly the
Governing Body of the Hospital, in it's Resolution taken on 08.09.2021, released the
petitioners from their engagement w.e.f. 01.11.2021. In this respect the Counsel for the
Health Department has submitted the Minutes of the Governing Body Meeting held on
08.09.2021. The learned Counsel for the Health Department further submits that the
petitioners were not appointed as per the Rules and neither had any selection process been
conducted prior to the engagement of the petitioners.
6. I have heard the counsels for the parties.
7. The pleadings of the petitioners clearly show that no advertisement had been issued
by the respondents prior to engaging the petitioners in the year 2015 to work in the District
Hospital, Sonapur, Kamrup(M). It is also an admitted fact that no appointment orders were
issued to the petitioners. There was no selection process undertaken by the authorities and
no Recruitment Rules were followed while appointing the petitioners. In the case of State of
Orissa and Another v. Mamata Mohanty, reported in (2011) 3 SCC 436, the Apex Court has
held that appointment made in the absence of an advertisement would be violative of Article
14 and 16 of the Constitution. The Apex Court further held that when appointments are made
without advertisements, the appointed persons are not even entitled to the payment of
salary. Paragraph 35 and 36 of the judgment in the case of Mamata Mohanty (supra) states
as follows :
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"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, it 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. (Vide: Delhi Development Horticulture Employees' Union
v. Delhi Administration ; State of Haryana v. Piara Singh; Excise Superintendent v. K.B.N.
Visweshwara Rao; Arun Tewari v. Zila Mansavi Shikshak; Binod Kumar Gupta v. Ram Ashray
Mahoto; National Fertilizers Ltd. v. Somvir Singh; Telecom District Manager v. Keshab
Deb ; State of Bihar v. Upendra Narayan Singh and State of Madhya Pradesh v. Mohd.
Ibrahim)
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 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."
9. It is also seen that the petitioners were not appointed in terms of any Recruitment
Rules or Service Rules. In view of the reasons stated above, this Court does not find any
ground to exercise its discretion in the case. The writ petitions are accordingly dismissed.
JUDGE
Comparing Assistant
