Noklem Manham And 4 Ors vs State Of Arunachal Pradesh And 3 Ors

A.S. Bopanna, CJ

Heard Mr. U.K. Nair, learned senior counsel assisted by Mr. S.K. Deori, Mr. A. Boro, Mr. D.K. Deori and Ms. Somila, learned counsel for the appellants. Also heard Mr. Arun Chandran, learned Junior Government Advocate, Arunachal Pradesh for the respondents.

The appellants are before this Court assailing the orders dated 1.3.2019 passed by the learned Single Judge in the respective writ petitions through which the appellants herein were before the learned Single Judge. Since common issue arises in all these appeals, they are taken up together and disposed of by this common order.

For the purpose of narration of facts, the facts as arising in W.A. No.64 of 2019 relating to W.P.(C) No.634(AP) 2018 is taken note. The petitioners therein were issued with the show cause notice dated 16.11.2018 whereby they were asked to show cause as to why the orders dated 28.04.2017, 26.05.2017 and 20.06.2017 issued by the Joint Director of Accounts & Treasuries, Government of Arunachal Pradesh appointing the writ petitioners to the post of Lower Division Clerk contrary to the relevant Recruitment Rules, should not be cancelled. The learned Single Judge, while taking note of the challenge, was of the opinion that the writ petitions, as filed, is premature inasmuch as the petitioners at the outset are required to reply to the show cause notice whereupon the respondents would take appropriate decision in accordance with law. It is in that light the writ petitions were disposed of allowing the writ petitioners to respond to the impugned show cause notice individually before the authority concerned, if they had not yet responded.

In a normal circumstance, no further consideration will arise in the instant appeals since the appropriate course for the appellants is to reply to the show cause notice. However, in the instant facts, the learned senior counsel appearing for the appellants would refer to the order dated 20.6.2017 through which, at the first instance, the appointment of one of the appellants was made. From the said order, it is pointed out that the very appointment, as made, is on a temporary basis. But at that point, since the appellant concerned was not permitted to report, a subsequent order was made. In that regard, reference is made to the order dated 12.10.2017. Through the said order, the appellant concerned was permitted to join duties with prospective effect. In that light, it is pointed out that the very appointment, as made, is a temporary appointment and, as such, the contention that is sought to be put forth on behalf of the respondents that the same is contrary to the Recruitment Rules does not, in any event, arise. Having thus contended, the learned senior counsel would also point out that through the said process, the respondents are only seeking to replace the appellants herein by making other temporary appointments which is not permissible in law. It is contended that if regular process of appointment is undertaken, the appellants, in any event, would have the opportunity to participate in such process of selection and, until then, the appellants would be entitled to continue.

In the background of the said contentions, the learned Additional Advocate General, who had appeared on behalf of the respondents on the last occasion, was requested to secure instructions in the matter. Learned Junior Government Advocate, Arunachal Pradesh, who has appeared today on his behalf, with reference to the communication dated 14th March, 2019 received by him, would submit that no process is undertaken till this day to fill up the posts in question by way of regular appointment in the Directorate of Accounts and Treasuries, as against the posts to which the appointment of the appellants had been made.

Keeping that in view, at present, the contentions of the learned senior counsel for the appellants are taken note. It is necessary to clarify that even after reply to the show cause, if a decision is taken by the respondents against the appellants, it is made clear that the respondents shall not replace the appellants with another set of temporary appointees. This, however, will not be construed as an opinion as regards the decision to be taken by the respondents on due consideration of the reply of the appellants to the show cause notice. To that extent, it is clarified that the respondents may take note of the reply to the show cause notice and thereafter, take an independent decision in accordance with law. However, what is restrained through the order is making of temporary appointments replacing the appellants, who are already there as temporary appointees.

With the above clarification, the appellants are reserved with the liberty to put forth their reply to the show cause notice, which the respondents shall consider in accordance with law.

The appeals are disposed of accordingly.