Biswajit Gogoi and Others vs The State of Assam and Others

S.K. Homchaudhuri, J.

The facts and law points involved in these six petitions being common, the petitions are disposed of by this common Judgment and order.

All the Petitioners came to be appointed as Sub-Engineers in the year 1988 purely on Adhoc basis under the Adhoc Appointment Rules by the Director of Agricultural Engineering, Assam, khanapara. The Petitioners in Civil Rule Nos. 906/92, 148/92, 149/92, 151/92, 498/92, 499/92 were appointed on adhoc basis with effect from 9.7.88, 15.10.88, 1.7.88, 18.6.88, 27.7.88 and 18.6.88 respectively. Their adhoc appointments were extended from time to time. The A.P.S.C. made advertisement in the year 1989 for selection in order to fill of the posts of Sub-Engineers on regular basis in the establishment of Director of Agricultural Engineering, Assam and in response thereto these Petitioners offered their candidatures and they appeared in the selection test along with held by the A.P.S.C. The A.P.S.C. after holding selection test published the select list on 2.4.92. None of the Petitioners found place in the select list. Facing termination from service they approached this Court in this writ petitions. While issuing rule, ad-interim order were passed by this Court directing the Respondents not to oust the Petitioners from service till disposal of the rule and consequently have been continuing to hold the posts of Sub Engineers.

I have heard learned Counsel for the Petitioners and learned Govt. Advocate. Common submissions made by the learned Counsels on behalf of the Petitioners, is that Petitioners having appointed under the adhoc Appointment Rules rendered continuous service for about 4 years their case for regularisation appointment ought not to have been considered along with outsiders (candidates who were not in employment) and that their cases were to be considered by the Respondents on the basis of their performances in service. The Adhoc Appointment Rules speaks about regularisation of appointment of the persons who came to be appointed on adhoc basis and hot fresh selection by the A.P.S.C. In support of the contention, learned Counsel for the Petitioners placed reliance on the decision of the Apex Court in the case of State of Haryana and others Vs. Piara Singh and others etc. etc., It is, however, not the case of the Petitioners that they were appointed under the Adhoc Appointment Rules after their candidatures were sponsored by the Employment Exchange or after they were selected on the basis of open advertisement for the posts inviting applications.

Mr. B.L. Singh, learned Govt. Advocate on the other hand submits that the Petitioners were appointed on adhoc basis by way of stop gap arrangement pending filling up the posts on regular basis after selection made by the A.P.S.C. The A.P.S.C. within one year of the appointment of the Petitioners, invited applications from the candidates for selection and admittedy the Petitioners offered their candidatures and appeared before the A.P.S.C. in the selection test, but they could not qualify themselves. The Petitioners not being selected by the A.P.S.C., they have no right to hold the posts. Learned Govt. Advocate further submits that as a consequence of ad-interim order the Petitioners are holding the vacant posts for which they are not eligible for appointment on regular basis and the candidates who have been selected by the A.P.S.C. for regular appointment are being denied appointment. As such, there is no alternative but to terminate the service of the Petitioners to make room for the selected candidates in order of merit.

I have considered the submissions made on behalf of the Petitioners as well as on behalf of the Respondents, and have perused the materials on records. It is a fact that all the Petitioners by now have rendered about five years continuous service but their appointments were not preceded either by sponsoring their candidatures by the Employment Exchange or by selection on the basis of open advertisement inviting applications for the posts. Admittedly the A.P.S.C. made advertisement for the post in the year 1989 and the Petitioners in response thereto offered their candidatures but they have not been selected by the A.P.S.C. The Petitioners have never faced selection test save and except before the A.P.S.C. In the case of State of Haryana v. Piare Singh (Supra) in para 10 of the Judgment Apex Court amongst other held that:

Where a temporary or adhoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation

In para 12 (e) of the said Judgment the Apex Court also held that

Many appointments may have been made irregularly-as in this case-in the sense that the candidates were neither sponsored by the Employment Exchange nor were they appointed after issuing a proper advertisement calling for applications. In short, it may be a back door entry. A direction to regularise such appointments would only result in encouragement to such unhealthy practices

I find force in the submissions of the learned Govt. Advocate that the Petitioners have no right to hold the post and they cannot be allowed to block the appointment of the candidates who have been selected by the A.P.S.C.

For the reasons stated above, the petitions are without merit and are therefore, dismissed. I make no order to costs. The ad interim order passed by this Court directing the Respondents not to oust the Petitioners from service till disposal of these petitions, stand vacated.

However, before parting. I would like to observe that although the Petitioners appointments were irregular, they having rendered continuous service for about 5 years and in all probability have become overaged for fresh appointment in any other department of the Govt. against vacant posts. it is a fit case where the Respondents should consider the cases of the Petitioners for their absorption in the subsequent vacant posts of Sub-Engineers on the basis of their performances during the period they have rendered continuous service for about 5 years provided they possessed requisite qualification for appointment to the post at the time of their initial appointment on ad-hoc basis.