Nilotpal Das And 8 Ors vs State Of Assam And Ors

Heard Mr. I. H. Saikia, learned counsel for the writ petitioners. I have also heard Mr. N. Sarma, learned Standing Counsel, Secondary Education

Department, Assam, appearing for respondent Nos.1 to 4.

The writ petitioners herein were all appointed against sanctioned Grade-IVposts on various dates in the year 1994. Initially their appointments were

for a period of four months but subsequently the period of appointment had been extended as a result of which all the writ petitioners have been

rendering their services in the aforesaid Grade-IV posts till today. Being inter-alia aggrieved by the inaction on the part of the respondents to

regularise their services, the writ petitioners have approached this Court seeking a direction upon the respondents to regularise their services.

It appears that after paying the salary to the petitioners for about two yearsfrom the date of their appointment, the authorities have stopped the

salary of the writ petitioners although they are regularly discharging their duties as peon in the respective schools where they were initially appointed.

Mr. Saikia, learned counsel for the petitioners, submits that although the writpetition was instituted seeking a number of reliefs, yet, at this stage the

petitioners are only praying for a direction to regularise their services and to pay them the current and arrear salaries as per the applicable rules. In

support of his argument, Mr. Saikia has also relied upon paragraph 53 of the decision of the Hon’ble Supreme Court in the case of Secretary,

State of Karnataka and others vs. Umadevi (3) and others, reported in (2006)4 SCCÂ 1, to contend that the petitioners having been in continuous

service for more than 10 (ten) years on being appointed against sanctioned posts, their services ought to have been regularised by the department in

view of the law laid down by the Hon’ble Apex Court in the aforesaid decision.

Mr. Sarma, learned Standing Counsel, Education Department, has submittedthat he has no instruction on the plea raised in the writ petition and

therefore, is unable to make any submission before this Court.

In this case, as noted above, the writ petitioners were all appointed way backin the year 1994 and the present writ petition had also been instituted in

the year 2012. The order of appointment of the petitioners brought on record prima facie go to show that they were appointed on adhoc basis but

against sanctioned posts. The order by which the appointment of the writ petitioners were extended is also available on record. From a perusal of the

materials on record I am of the prima facie view that the petitioners have continued in service against sanctioned posts continuously for a period of

more than 20 years without the assistance of any court order.

In the case of Umadevi (3) and others (supra) the Hon’ble Apex Court has made the following observations in paragraph 53 :-

“53.    One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.

Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarjan (supra), and referred to in paragraph 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 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 onetime 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 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. We also clarify that regularization, if any already made, but

not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and

regularizing or making permanent, those not duly appointed as per the constitutional scheme.â€​

From the aforesaid decision of the Supreme Court it is apparent that theservice of such candidates, who have rendered continuous services for

more than ten years against sanctioned posts and without the aid of any court order, would be entitled for regularisation as a onetime measure even

if such appointments were irregular. Under the circumstances, it is apparent that the claim of the petitioners deserve appropriate consideration at the

hands of the authorities.

Since the learned departmental counsel has not been able to render any assistance to this Court due to want of instruction, I dispose of this writ

petition with a direction upon the respondent No.2 to examine the respective cases of the writ petitioners and on such examination, if it is found that

the petitioners had been appointed against sanctioned posts and they have been rendering continuous service since the date of their respective

appointments till today without the assistance of any order from a Court or Tribunal then in that event, their cases will be processed for regularisation

as per the law laid down by the Hon’ble Supreme Court as contained in paragraph 53 of the decision in the case of Umadevi (3) and others

(supra). If it is found that the petitioners have been continuously rendering their services in the aforesaid Grade-IV posts, their arrear and current

salary shall also be paid in accordance with the rules. The aforesaid exercise shall be carried out and completed within a period of three months from

the date of receipt of a certified copy of this order.

With the above observation, this writ petition shall stand disposed of.

  No order as to cost.