Namrangbuing Jeme vs The State Of Assam And 3 Ors
2022 Latest Caselaw 1910 Gua

                                                                          Page No.# 1/9

GAHC010290262019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/8983/2019

            NAMRANGBUING JEME
            S/O- LT MIREILIANG JEME, R/O- VILL- P.PEISIA, P.O. AND P.S. MAHUR,
            DIST- DIMA HASAO, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, PUBLIC
            WORKS ROADS DEPTT., DISPUR, GHY-6

            2:NORTH CACHAR HILLS AUTONOMOUS COUNCIL
             REP. BY THE PRINCIPAL SECY.
             P.O. HAFLONG
             DIST- DIMA HASAO
            ASSAM

            3:THE SUPERINTENDING ENGINEER
             PWD (R AND B)
             HAFLONG CIRCLE
             HAFLONG

            4:THE EXECUTIVE ENGINEER
             PUBLIC WORKS DEPTT. (R AND B)
             HAFLONG DIVISION
             HAFLON

Advocate for the Petitioner   : MR. D P BORAH

Advocate for the Respondent : SC, P W D
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                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 01-06-2022

Heard Mr. D.P. Borah, learned counsel for the petitioner as well as Mr. B. Gogoi, learned standing counsel for the PWD and Ms. J. Gogoi, learned standing counsel for the NC Hills Autonomous Council representing respondent nos.2, 3 and 4.

2. The case of the petitioner, in brief, is that by an office order No.8/1995 dated 10.04.1995, the petitioner was appointed temporarily as Work-charge Chainman in the resultant vacancy due to the death of one Karunamoy Nath. Subsequently, by order dated 11.02.1999, the service of the petitioner was terminated.

3. Aggrieved by the order of termination, the petitioner had approached this Court by filing a writ petition, and this Court by order dated 25.11.2004, passed in WP(C) 4140/1999, directed as follows:

"In the aforesaid fact situation, I am of the considered opinion that the ends of justice will be met if the respondents, more particularly the Superintending Engineer, PWD (R&B), Halflong Circle, Haflong is directed to consider the case of the petitioner. If works are available under the respondents, the services of the petitioner can be considered even without regularization as per the Government's later circular. The respondents shall consider the case of the petitioner on the basis of availability of works and necessity of the respondents.

The entire exercise shall be carried out within three months from the date of furnishing a certified copy of this order along with a copy of the writ petition with its enclosures.

With the above direction, writ petition stands disposed of."

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4. It is claimed that under similar circumstances, the service of 11 persons were terminated. Thereafter, pursuant to the order dated 25.11.2004, passed by this Court in WP(C) 4140/1999, while forwarding the names of persons for re-engagement, the name of the petitioner was dropped and therefore, while 10 other similarly situated persons have been engaged in the establishment of the Executive Engineer, PWD (R&B), Halflong Division, the name of the petitioner was left out.

5. Thereafter, the Executive Engineer, PWD (respondent no.4) had moved the respondent no.3 with a request to move the matter to NC Hills Autonomous Council to take positive action in the matter of appointment of the petitioner.

6. Thereafter, by letter dated 24.07.2006, the Principal Secretary, NC Hills Autonomous Council had raised a query with the Executive Engineer (respondent no.4). Thereafter, the petitioner had once again made a prayer before the respondent no.4 for his appointment by letter dated 03.10.2016 and his application was forwarded to the Principal Secretary, NC Hills Autonomous Council by a forwarding letter dated 11.11.2016. By a letter dated 04.03.2017, approval for SIU was sought for appointment of the petitioner as Section Assistant.

7. Thereafter, the Principal Secretary, NC Hills Autonomous Council by letter dated 06.07.2017, sought for a detailed report and brief history in respect of the petitioner and the Executive Engineer (respondent no.4), by letter dated 03.08.2017 submitted that the case of the petitioner is found to be fit for Page No.# 4/9

appointment as Section Assistant immediately as per the direction of the order of this Court and as per the Govt. Memorandum of the Assam Finance Budget Department (Assam).

8. Accordingly, the learned counsel for the petitioner has submitted that as the name of the petitioner was dropped from the list out of which all the 10 other persons were appointed, this was a fit and proper case for exercising jurisdiction under Article 226 of the Constitution of India for issuance of direction to the respondent authorities to take appropriate steps as indicated in the order dated 25.11.2004, passed in WP(C) 4140/1999, and offer suitable appointment to the petitioner and/ or for a direction upon the respondent authorities to take appropriate direction in terms of the detailed report dated 03.08.2017, submitted by the Executive Engineer, PWD (R&B).

9. Although the state PWD has not filed any affidavit-in-opposition but the learned standing counsel for the PWD has submitted that the petitioner would not be entitled for employment as Section Assistant without due process of law.

10. The learned standing counsel for the NC Hills Autonomous Council has referred to the statement made in para-8 and 9 of the affidavit-in-opposition, and it is submitted that as per the necessity of service, recommendation was made for appointment of the petitioner. It was also submitted that as the petitioner was appointed after 01.04.1993, there was no government policy to retain the personnel in work-charge employment after 01.04.1993.

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11. Having regard to the fact that the service of the petitioner was terminated by order dated 11.02.1999, the petitioner is not in service in the establishment of the respondent no.4 on and from the date when the order dated 11.02.1999 had become effective. Notwithstanding the direction of this Court by order dated 25.11.2004 in WP(C) 4140/1999, in view of the decision of the Supreme Court of India in the case of Secretary, State of Karnataka Vs. Uma Devi, 2006 (4) SCC 1. The petitioner is not found to any relief as prayed for. In this regard, the observations made in the following paragraphs of the case of Uma Devi (supra) are extracted below:

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. ...

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47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48. It was then contended that the rights of the employees thus appointed, under Page No.# 6/9

Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.

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53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128]: (AIR 1967 SC 1071); R.N. Nanjundappa [1972 (1) SCC 409]: (AIR 1972 SC 1767) and B.N. Nagarajan [1979 (4) SCC 507]: (AIR 1979 SC 1676) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above-referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be Page No.# 7/9

filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date....."

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55. ... In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.

56. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed."

12. This Court, being bound by the decision of the Supreme Court of India is unable to issue a direction to the respondent authorities to gainfully employ the petitioner.

13. An exception was carved out in the said decision that if a person had rendered service more than 10 years he would be entitled to one time Page No.# 8/9

consideration of his case for regularization, if such appointment was made without the intervention of an interim order of the Court or a tribunal.

14. It has been indicated in the affidavit-in-opposition filed by the Executive Engineer, PWD (R&B), Halflong (respondent no.4) that there was no government policy to retain any person in work charge after 01.04.1993, the Court would have no power to direct the respondent authorities to give gainful employment to the petitioner in the absence of any government policy to employ work charged employees.

15. The only relief which the Court can give to the petitioner is that in the event the petitioner applies for any employment under the Govt. of Assam or under the NC Hills Autonomous Council, if he is otherwise qualified, the petitioner would have the liberty to approach the competent authority for relaxation of his upper age for employment considering the fact that the petitioner was the beneficiary of an order dated 25.11.2004, passed by this Court in WP(C) 4140/1999 and that while regularizing the service of others, his name was dropped which is admitted by the NC Hills Autonomous Council.

16. In this regard, by the time the petitioner is granted liberty to produce a certified copy of the order to the competent authority to claim relaxation of age and the concerned authority shall consider the circumstances as indicated above and pass appropriate order thereon.

17. In connection with the statements made by the learned counsel for the petitioner that similarly situated other 10 persons had been gainfully engaged Page No.# 9/9

by the NC Hills Autonomous Council, this Court is of the considered opinion that after the decision of the Supreme Court of India in the case of Uma Devi (supra) the right to negative quality would not apply, being in violation of Article 14 of the Constitution of India. Hence, the petitioner would not be entitled to claim parity with the other similarly situated persons in view of the judgment rendered in the case of the Uma Devi (supra).

18. With the observation as indicated above, this writ petition stands disposed of.

JUDGE

Comparing Assistant