Lalit Sarmah vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1979 Gua

                                                                  Page No.# 1/7

GAHC010018452014




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

                           Case No. : WP(C)/6091/2014

         LALIT SARMAH
         S/OLT. ANANDA SARMAH R/O BILTOTIA, P.O. MACHKHOAWA, P.S. and
         DIST. DHEMAJI, ASSAM.



         VERSUS

         THE STATE OF ASSAM and 4 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         HOME AFFAIRS, DISPUR, GUWAHATI-6.

         2:THE DEPUTY INSPECTOR GENERAL OF POLICE A

          ASSAM
          ULUBARI
          GHY.-7.

         3:THE SUPERINTENDENT OF POLICE

         DHEMAJI
         DIST.- DHEMAJI
         ASSAM.

         4:THE ADDL. SUPERINTENDENT OF POLICE

         DHEMAJI
         DIST.-DHEMAJI
         ASSAM.

         5:THE BRANCH-IN-CHARGE

          CRIME BRANCH
          OFFICE OF THE SUPERINTENDENT OF POLICE
          DHEMAJI
          DIST.-DHEMAJI
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            ASSAM

Advocate for the Petitioner   : MS.J M KALITA

Advocate for the Respondent :




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                         ORDER

Date : 06.06.2022

Heard Mr. M. Sarma, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned Additional Senior Govt. Advocate appearing for the respondents.

2. The case of the petitioner is that he was engaged as a contingency Menial and vide order dated 22.12.2004, and due to shortage of LDA-cum-Typist, he was engaged as Menial Typist in the Reader Branch of the office of the Superintendent of Police, Dhemaji. His service was extended from time to time by various orders. However, by virtue of the impugned order dated 14.10.2014, the petitioner was discharged from service, allegedly on the ground that the petitioner was an untrained Home Guard and was released from service w.e.f. 13.10.2014 due to completion of 6 (six) months tenure. Accordingly, by filing this writ petition, the petitioner has assailed the impugned release order dated 14.10.2014 with a prayer to set aside and quash the said order and further praying for a direction upon the respondent authorities for regularization of his service as Typist in the office of the respondent no.3.

3. The learned counsel for the petitioner has referred to the materials available on record and it is submitted that the petitioner was never appointed as a Home Guard and it is submitted that all throughout, the Page No.# 3/7

petitioner was made to work as a Menial Typist attached to the office of the Superintendent of Police, Dhemaji. Accordingly, it is submitted that the petitioner, having never been enrolled as untrained Home Guard, his discharged from service was illegal. It is also submitted that the respondent authorities have manufactured a false ground to discharge the petitioner as Home Guard. In this regard, reference is made to statement made in paragraph 4 of the affidavit-in-opposition filed by the respondent no.3, wherein it is stated that the petitioner was engaged by the then Superintendent of Police, Dhemaji as untrained Home Guard w.e.f. July, 2010, whereas, in the additional-affidavit filed on 07.11.2019, the respondent no.3 has stated that the petitioner was engaged as a Menial Typist on 15.07.2010 and was retained with split up wages of Home Guard. Accordingly, it is submitted that as the petitioner has rendered continuous service of more than 10 (ten) years, his case ought to be considered for regularization of service as a Typist in the office of the Superintendent of Police, Dhemaji.

4. The learned Additional Senior Govt. Advocate has opposed the prayer made in this writ petition and has relied on the affidavit-in-opposition filed by the respondent no.3, additional-affidavit filed by the respondent no.3 as well as the additional-affidavit filed by the respondent no.4 and it is submitted that the petitioner was engaged without any transparent recruitment process and for the payment of wages for the service rendered, the then Superintendent of Police Dhemaji, had shown the petitioner as an untrained Home Guard. It is submitted that owing to the Govt. notification dated 30.10.2001, and notification issued by the Assam Police Headquarter vide memo dated 24.06.2010, issued by the DIG (A), Assam, wherein it was provided that only casual employees appointed before 01.04.1993 would be entitled to get the wages, it is submitted that it was not possible to extend the service of the Page No.# 4/7

petitioner.

5. It is seen from the materials available on record that the petitioner was not appointed with due process of transparent recruitment process and that the appointment of the petitioner was made as contingency menial and was engaged as a Typist. Even assuming that the petitioner was never appointed as a Home Guard and he was continued to be engaged as a contingency menial, still in view of the ratio laid down in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 , in terms of discussion and decision made in para 43, 47, 48, 53, 55 and 56 of the said case, the Court being bound by the ratio laid down by the Constitution Bench of the Supreme Court of India in the said case, the petitioner would not be entitled to a writ of mandamus upon the respondent authorities to appoint him as a Typist in the establishment of respondent no.3.

6. It would be now appropriate to refer to the relevant paragraphs 43, 47, 48, 53, 55 and 56 of the case of Umadevi (supra), which is 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. ...

* * *

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 Page No.# 5/7

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 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 Page No.# 6/7

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 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."

7. Therefore, notwithstanding that the petitioner might not have been found to be engaged as a Home Guard by the State by following the procedure prescribed under the Assam Home Guards Act, 1947, it appears that Page No.# 7/7

in order to continue the service of the petitioner, the then Superintendent of Police, Dhemaji had shown the petitioner to be appointed as a Home Guard.

8. Although the appointment of the petitioner as Home Guard is not found sustainable, but as he has already been discharged from service, no interference is called for as the petitioner is not found entitled to the relief of being appointed in a regular basis in the establishment of the respondent no.3.

9. Be that as it may, as the petitioner has been found to have rendered more than 10 (ten) years of service, the Court is inclined to provide that in the event, the petitioner applies for any service under the State Govt., he would be at liberty to apply before the competent authority of the concerned department for condonation of his age and the said authority shall consider the representation of the petitioner and take decision thereon in accordance with law.

10. This writ petition stands dismissed, however, with observation and liberty as provided for in the foregoing paragraph, with no order as to cost.

JUDGE

Comparing Assistant