Gauhati High Court
WA/164/2021 on 22 December, 2022
GAHC010097732021
Judgment delivered on : 22nd December, 2022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.A NO.164OF 2021
Rajkumar Kachari
61 years, S/O Late Hareswar Kachari
Resident of Hengrabari Nabanagar, P.O. Hengrabari, P.S. Dispur,
District- Kamrup(M), Assam
2 Sri Biren Rabha
55 Years, S/O Late Tulsi Ram Rabha
Resident of Japorigogh, Krishnanagar,
P.O. Japorigogh, P.S.- Dispur,
District-Kamrup(M), Assam
3 Sri Ram Charan Rabha
52 Years, S/O Late Ganesh Rabha, Resident of Nichinpur,
P.O. Birpara, P.S.-Boko, District-Kamrup(R)
4 Fakaruddin Ahmed
51 Years, S/O Late Abdur Rahman,
Resident of Village- Sundarban Nagar, Nabaratna Path,
Dakhingaon, P.O.- Kahilipara, P.S.-Hatigaon,
District- Kamrup(M),
Guwahati-781019
........Appellants
-Versus-
The State of Assam,
Represented by the Commissioner & Secretary to the Govt. of
Assam, WPT & BC Department, Dispur, Guwahati-6
Writ Appeal No. 164/2021
Page 1 of 14
2 The Principal Secretary,
Finance Department, Govt of Assam, Dispur, Guwahati-6
3 The Assam Tribal Development Authority,
Represented by its Member Secretary, R.P. Road, Guwahati
4 The Chief Executive Office,
Assam Tribal Development Authority, R.P. Road, Guwahati-6
5 The Director,
WPT & BC Department, Assam,
Rukmininagar, Guwahati-6
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
Advocate for the appellants : Mr. H.R.A Choudhury, Sr. Counsel
Mr. F.U. Barbhuiya, Advocate
Advocate for the respondents : Mr. D. Nath, Sr. Government Advocate, Assam
Mr. R. Dhar, Standing Counsel, WPT&BC.
JUDGMENT AND ORDER
(Soumitra Saikia, J)
Heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by
Mr. F.U. Barbhuiya, learned counsel for the appellants. Also heard Mr. D.
Nath, learned Senior Government Advocate, Assam and Mr. R. Dhar,
learned Standing Counsel, WPT&BC for the respondents.
2. This appeal is directed against the common Judgment and Order
dated 09.06.2021 passed by the learned Single Judge in WP(C)
956/2016, WP(C) 2321/2018 and WP(C) 1216/2016. The present writ
appeal is filed by the appellants, who were the petitioners in WP(C) No.
Writ Appeal No. 164/2021
2321/2018. The writ petitioners and the other connected writ petitions
are not before this Court.
3. The facts which are revealed from pleadings on record are that the
appellants were engaged as Drivers under the Assam Tribal
Development Authority (hereinafter referred to as "ATDA"). Initially no
vehicles were allotted to the said authority, however, subsequently
under various schemes and for implementation thereof, the certain
vehicles were allotted to the ATDA and thereafter, the services of the
appellants were engaged as Drivers. A number of communications were
addressed between the ATDA and the Government requesting for
creation of the posts of Drivers and to regularize the services of the
appellants. However, by order dated 21.12.2015, the Department of
WPT&BC, Government of Assam rejected the proposal for regularization
of the appellants as Drivers on the ground that the appointments were
made in non-sanctioned posts and non-existent posts and without prior
concurrence or approval of the State Government. The appellants along
with other petitioners approached this Court by filing the two writ
petitions being W.P.(C) No. 956/2016 and W.P(C) No. 1216/2016
challenging the said order dated 21.12.2015. The prayers in these two
writ petitions were for regularisation of the services in the ATDA as
Drivers and to pay their current and arrear salaries. By way of an interim
order, the WPT&BC Department directed as to whether the decision of
the Authority taken was to be approved or not. Pursuant to the said
order, the WPT&BC Department vide order dated 03.01.2018 again
rejected the proposal/decision taken by the Authority proposing for
regularisation of the writ petitioners. Being aggrieved W.P.(C) No.
2321/2018 was filed by the petitioners jointly challenging the order
dated 31.01.2018. All the three writ petitions were heard together and
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by the impugned common Judgment & Order, all the three writ petitions
were dismissed.
4. Before the learned Single Judge, it was urged that inspite of
several communications being exchanged between the ATDA and the
Government seeking creation of posts and subsequent regularization of
the services of the appellants/petitioners, but instead the proposals sent
for creation of posts and regularization of the services of the
appellants/petitioners were rejected. It was submitted that instead of
creating and regularizing the petitioners in such posts, the respondent
authorities as well as the Government merely extracted services from
the petitioners and thus their proposal for creation of posts and
subsequent regularisation have been wrongly rejected and the
impugned order dated 03.01.2018 passed by the Department was
accordingly required to be interfered with and quashed. The
appellants/petitioners had relied upon the Judgment of Nihal Singh Vs.
State of Punjab & Ors., reported in (2013) 14 SCC 65 in support of
their contentions and urging before the learned Single Judge to interfere
with and set aside and quash the impugned order dated 03.01.2018
whereby the proposal for creation of posts of Driver and the
regularisation of the appellants/petitioners in those posts were rejected.
It was further urged that the appellants/petitioners were also entitled to
monthly salary from the Month of December, 2017 onwards till date
after taking into account the due increments along with the financial
benefits.
5. The respondents counsel appearing for the State has opposed the
contentions of the appellants/petitioners contending that there is no
question of creation of any posts of Drivers and subsequent
regularisation of their services as claimed, in the absence of any
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sanction being obtained from the Government prior to engagement of
the services of the appellants/petitioner.
6. The standing counsel representing the ATDA, however, supported
the contentions of the petitioners and contended that the ATDA had
repeatedly sent proposal before the appropriate and competent
authority in the State for according sanction for creation of the posts of
the drivers for regularising of their services.
7. The learned Single Judge held the ratio of the Judgment rendered
in Nihal Singh (Supra) is not attracted to the facts of the present
proceedings. The learned Single Judge held that when a person has
entered into a service or an employment as a contractual or casual
worker and the said engagement is not based on proper selection as
recognised by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or
contractual in nature. The learned Single Judge referred to the law laid
down by the Apex Court in State of Karnataka Vs Umadevi,
reported in (2006) 4 SCC 1. Relying upon the Judgment of a Co-
ordinate Bench of this Court in State of Assam Vs. Upen Das,
reported in 2017 (5) NEJ 553, the learned Single Judge partly allowed
the writ petition with the following directions:
"a. The respondents would implement the welfare
schemes by enlisting the petitioners in Health and Accidental
and Death Insurance Scheme as envisaged in the herein before
referred case of Upen Das (supra).
b. In the event there is truth in the allegations made in
W.P.(C) 2321/18 that the petitioners have not been paid their
salary since the month of December, 2017, then the
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respondents shall release the arrear salary as per last pay scale
drawn within a period of 4 (four) months from the date of
service of a certified copy of this order upon the respondent
no.4.
c. The current salary shall be paid as and when due.
d. Save and except the reliefs as indicated above, all
other prayers made in these three writ petitions are refused."
8. The submissions made before the learned Single Judge were re-
agitated before this Court. The learned counsel for the appellants relied
upon the Judgment of the Apex Court in Nihal Singh (Supra) to contend
that the Apex Court in the said Judgment directed absorption of the
appellants in the service of the State. The appellants therein were
appointed as Special Police Officers under Section 17 of the Police Act,
1861. The appointments of the said Special Police Officers (SPOs) were
made by the SSP in exercise of the powers under Section 17 of the
Police Act, 1861 and in the said appointment order, it was mentioned
that the appellants were entitled to all privileges under the Act and were
amenable to the disciplinary control of the State as in the case of any
other regular police officers. The only distinction was that they would be
paid daily wages by the Bank to whom their services were made
available. The Special Police Officers were assigned their duties of
providing securities to the Banks for which the financial burden was to
be borne by the Banks. The Superintendent of Police of the district
concerned was the Supervising Officer for discipline and control of the
said SPOs. The matter came before the High Court on the question of
regularisation of these SPOs which were appointed. The High Court
rejected the prayers of the appellants therein in respect of their claims
for regularisation. The matter travelled to the Apex Court and the Apex
Writ Appeal No. 164/2021
Court considered that the need for creation of posts is a relevant factor
in reference to which the executive Government is required to take a
rational decision based on the relevant consideration. In the facts of that
case, the Apex Court held that there was a need for creation of those
posts of SPOs because of the extra-ordinary law and order situation
prevailing in the relevant point in time in the State of Punjab. It was
held that the failure of the executive Government to apply its mind and
take a decision to create posts or stop extracting work from persons
such as the appellants herein for years together itself would be arbitrary
action on the part of the State. The Apex Court held that in the said
case creation of new posts would not create any additional financial
burden to the State as the various banks at whose disposal the services
of each of the appellants is made available have agreed to bear the
burden. The Apex Court directed the State of Punjab to regularise
services of the appellants by creating necessary posts within a period of
three months and upon such regularisation, the appellants would be
entitled to all the benefits of services attached to the post which are
similar in nature.
9. In the instant case, the Assam Tribal Development Authority
(ATDC) was set up by the Government of Assam by way of Assam Tribal
Development Authority Act, 1983.
Under Section 3(2), the Authority is body corporate with a
perpetual succession and common seal. The composition of the
Authority is specified under Section 4(1) of the said Act. Under the said
Section, the Chairman of the Authority is the Chief Minister of the State.
Under Section 11 of the said Act, the Government has the power
to fill up the vacancies in accordance with the provision of the Act. In
case of the vacancies arising due to resignation, removal or death or any
Writ Appeal No. 164/2021
other cause before the expiry of the term in the office of the Vice-
Chairman and other regular members.
Under Section 12 of the said Act, the Authority has been vested
with the power to have such staff, as may be decided by the Authority
with the approval of the Government.
10. A perusal of the various Sections of the Act reveals that the
Government of the State has deep and pervasive control over the
functions and activities required to be undertaken by the Authority.
Section 12 of the Act specifically provides that any staff that the
authority may have, as may be decided by the Authority, will be with the
approval of the Government.
11. As referred above, there were numerous communications
exchanged between the parties and the Government on the aspect of
grant of approval for the post of Drivers in which the appellants were
engaged. The petitioners/appellants No. 1, 2 & 3 also approached this
Court earlier by filing W.P(C) No. 2593/2011 seeking a direction to the
respondents Department to accord ex-post facto sanction to the posts of
the Drivers in the ATDA as per proposal submitted on 14.07.1994. This
Court vide order dated 08.09.2015 disposed of the writ petition with a
direction to the Commissioner and Secretary, Government of Assam,
WPT&BC Department to immediately take a decision on the proposal
submitted by the Authority on 14.07.1994, 05.04.201 and 20.04.2015
without any further delay, keeping in mind the provisions of the Assam
Tribal Development Authority Act, 1983 particularly Section 12 thereof.
The decision was directed to be taken within a period of three months
from the date of receipt of certified copy of this order. Till a decision was
taken, the respondents were directed to release the salaries of the
petitioners out of which budgetary allocation from March, 2015 onwards
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both current and arrears within 15 days from the date of receipt of the
certified copy of the order.
12. Thereafter, the Government of Assam in WPT & BC Department
vide order No. TAD/BC/224/2011/142 dated 21st December, 2015
passed a speaking order rejecting the proposal for issuance of sanction
to the post of Drivers in which the appellants were engaged. The
Department was of the view that the appointment made to the post of
Drivers by the ATDA were without availability of any sanctioned vacant
posts and were without any approval of the State Government.
According to the Government, any decision taken by any authority with
financial implication for the State Government must have prior
concurrence of the State Finance Department. Accordingly, the proposal
for accommodating or regularising services of any persons appointed by
ATDA against non-sanctioned and non-existent post without prior
approval of the State Government cannot be considered by the State
Government and accordingly, the proposal was rejected. Being
aggrieved, three of the appellants filed W.P(C) No. 956/2016 and one
appellant filed W.P(C) No. 1216/2016 challenging the order dated
21.12.2015 passed by the Government rejecting their proposals for
regularisation. This Court by order dated 03.11.2017 had directed the
WPT&BC Department in respect of the decision taken by the Authority
under Section 12 of the ATDA Act requiring the four post of drivers and
the WPT&BC was directed to give its own reasons either accepting or
rejecting the case for approval. It was directed that if the WPT&BC
Department was of the view that the concurrence of the Finance
Department or any other department is required, the same being an
inter-departmental requirement for correspondence, the department was
directed to do the needful to arrive at its decision. Pursuant to the said
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order passed by this Court in W.P(C) No. 956/2016 and W.P(C) No.
1216/2016, the department for WPT&BC, Government of Assam by a
speaking order No. TAD/BC/224/2011/219 dated 3rd January, 2018
passed the order that no proposal for creation of the post can be
considered by the State Government in WPT&BC Department for
accommodating and regularising the service of any person appointed by
ATDA against the non-sanction and non-existent posts as the
appointments were made by the ATDA without complying the laid down
provision of obtaining prior approval of the State Government and the
proposals were accordingly rejected. This order dated 03.01.2018 came
to be assailed by the appellants who had joined together as writ
petitioners in W.P(C) No. 2321/2018. The said writ petition together with
W.P(C) No. 956/2016 and W.P.(C) No. 1216/2016 came to be heard and
disposed of by the Judgment and order dated 09.06.2021 passed by the
learned Single Judge and which is impugned in the present proceedings.
13. It is seen from the pleadings that there is no dispute that the
appellants were appointed in the post of Drivers by different
appointment orders issued by the ATDA without there being any
selection process. It is also not in dispute that no posts of drivers had
initially been created when the appellants were appointed.
Subsequently, when vehicles were allotted to the ATDA, post of drivers
were felt necessary and accordingly, a decision was taken by the ATDA
to appoint the Drivers. It is also seen that ex-post facto approval was
accorded by the ATDA for four numbers of post of drivers against four
numbers of vehicles and the proposal was moved before the concerned
department for according sanction to the said post. It is seen that the
proposals were moved for regularising the drivers in the post of peon
which were four numbers of post of peons, which were lying vacant.
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14. A careful perusal of the proposals and the communications
exchanged between the ATDA and the Department reveal that no
specific proposal for creation of the post of Drivers was sent. The
proposals were essentially sent for filling up and regularising the services
of the appellants in four numbers of post of peons which were lying
vacant. In the case before the Apex Court in Nihal Singh (Supra), the
appointments of the Special Police Officers were issued by the SSP of
the concerned districts and there was a need for appointment of such
Special Police Officers due to the prevailing law and order situation in
the State of Punjab in the relevant point in time. The facts in the present
proceedings are entirely different. It is the pleaded case of the
appellants and not opposed by the ATDA that there are no vacant posts
or sanctioned posts for appointment of Drivers. Although under Section
12 of the Act, the ATDA has been vested with the power to have such
staff as may be decided by the authority with the approval of the
Government. Initially when the ATDA had taken decision under the
powers vested under Section 12 of the Act for appointment and
recruitment of staff, there was no posts for drivers as there were no
vehicles available at that point in time. It is only subsequently that some
vehicles were allotted under different schemes to enable its
implementation that the need of drivers was felt. There is nothing on
record to show that any such decision was taken by the authority under
the powers vested under Section 12 of the Act to create posts of drivers
as per its requirements. No such prior sanctioned is available on record
from the Government in respect of creation of posts for drivers as is
required under provisions of Section 12 of the Act. The proposals which
have been repeatedly forwarded to the WPT&BC and other departments
are in respect of filling up of four posts of peons by the four appellants
and to regularise their services in the said posts. It is not in disputed
Writ Appeal No. 164/2021
that the appellants are engaged as drivers and not as peons. In the
report accompanying the proposals put up by the ATDA before the
WPT&BC Department, a justification has been submitted for filling up
the posts of peons and not for the post of drivers. Therefore, it would
not be correct to say that the proposals for regularisation of the
appellants have been rejected. What instead has been forwarded
through the proposal is for regularising the appellants as peons and
when they are engaged in services as drivers. Such a course of action is
contrary to the norms and procedures application for obtaining approval
in respect of filling up of vacant sanctioned posts and/or regularisation
in such vacant sanctioned posts as earmarked. Even assuming that the
four posts of peons as shown to be necessary as per the report
accompanying the proposal forwarded by the ATDA, the said vacant
posts, if accorded, approval by the competent authority in the
appropriate Government, will have to be filled up in the manner
prescribed which is by calling for open advertisement and holding a
selection process. In the face of such facts presented, we are of the
view that the learned Single Judge has rightly rejected the prayer for
regularisation of the appellants.
15. The Judgment of the Apex Court rendered in Nihal Singh
(Supra) does not come to the aid of the appellants as the facts in the
present proceedings are different from those in Nihal Singh (Supra). The
Apex Court in Nihal Singh(Supra) had held that there was a necessity of
appointment of the SPOs which necessity was reflected in the
Government decision. In the present proceedings, it is seen that
although in the proposals forwarded by the ATDA, the filling up of the
vacant post of peons were shown neither to be justified nor in order to
accommodate the appellants. The fact remains that the appellants are
Writ Appeal No. 164/2021
functioning as drivers not as peons. The nature of works of Drivers and
Peons are entirely different as is understood in respect of any
administrative works. Merely because four post of peons are left vacant
and unfilled, the attempt by the ATDA to forward a proposal for
regularising the appellants in these four posts of peon could not have
been approved by the authority without the necessary approval of
and/or sanction of the relevant departments in the Government.
Creation of posts requires a certain procedure mandated under the rules
to be followed. When the four post of peons are already in existence
and as per the proposal, justification is shown that these posts of peon
are required to be filled up, then it is expected that the ATDA should fill
up these posts of peon by candidates whose services should be availed
of as peons in the ATDA office. If the ATDA is of the view that the post
of drivers are required to be filled up then proper proposal for filling up
the post of drivers showing its necessity will have to be sent to the
concerned department in the Government after such decision is taken by
the appropriate authority within the ATDA. The pleadings does not
reflect that any such decision has been taken by the authority justifying
the requirement for creation and for filling up the posts of drivers by
way of regularising of the appellants. Under such circumstances, there
can be no occasion to interfere with the impugned order passed by the
department declining to accord approval/sanction for
regularisation/filling up of the post of drivers as proposed by the ATDA.
16. Relying upon the decision of the Co-ordinate Bench of this Court
rendered in Upen Das(Supra), the learned Single Judge has directed for
implementation of the welfare schemes in the Health and Accidental and
Death Insurance Schemes as well as release of arrear salary since
December, 2017 as well as the current salary. We find no merit in the
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appeal to interfere with the view of the learned Single Judge and allow
the other prayers made in the writ petition regarding regularisation of
the appellants.
17. In view of the above discussions, the appeal being found to be
devoid of merit, the same is hereby dismissed. No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal No. 164/2021
