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Judgment
Both these Writ Petitions being connected wherein the parties are also identical, the same are being taken up together for disposal by this common
Judgment & Order.
Before going to the issue at hand, it would be convenient to state the facts of the case in brief.
The petitioners who are 7(seven) in numbers had participated in a recruitment process for filling up the post of LDA-cum-Computer Operator
under the Assam Electricity Grid Corporation Limited (herein after the AEGCL). The petitioners were sponsored by the concerned Employment
Exchange and in the selection so held, they were amongst 44(forty four) numbers of selected candidates. Accordingly to the petitioners, the AEGCL
had appointed 22(twenty two) numbers of candidates and the rest were left out. However, during the validity of the select list, the petitioners were
offered appointment to the said post which was however temporary in nature and was for a particular duration.
It is the case of the petitioners that their appointments were extended from time to time and there is no break in their services. It is the further case
of the petitioners that there is no blemish whatsoever in the services rendered by them. The case for regularization of the services of the petitioners
was under active consideration and in this regard, the Board of Directors of the Company in its 60th meeting held on 29.03.2017 took a resolution
against Item No. 12 to the following:
“Item No. 12. Approval of regular appointment of fixed pays LDA cum “Typist who were engaged from selected merit list.
After discussion, the Board approved for regular appointment of 10(ten) numbers fixed pays LDA cum Typist who were engaged from
selected merit list only after receipt of performance appraisal reports from the concerned authority.â€
Since the Company was not implementing the said resolution, the first Writ Petition in WP(C) No. 7589/2017 was instituted with a prayer to regularize
the services of the petitioners pursuant to the resolution dated 29.03.2017.
During the pendency of the said Writ Petition, the respondent- Company had taken another resolution being Resolution No. 19 in the 64th meeting
of the Board of Directors held on 15.12.2017 whereby the earlier Resolution No. 12 dated 20.03.2017 was rescinded. It was however resolved that in
case of fresh recruitment, preference would be given to the incumbent who formed the rest of 44(forty four) candidates who were not given
appointment in the recruitment process of the year 2011. The petitioners being aggrieved by the said resolution had instituted the second Writ Petition
which has been registered at 7790/2018.
I have heard Shri B.D. Goswami, learned counsel for the petitioners whereas Shri T. J. Mahanta, learned Senior Counsel assisted by Ms. P.
Bhattacharya, learned counsel has represented the AEGCL. Ms. Bhattcharya, learned counsel for the Corporation has also produced the records of
the case which have been carefully examined.
Shri Goswami, the learned counsel for the petitioners at the outset submits that amongst the petitioners, one Santanu Changkakoty was absorbed in
the respondent-Corporation in a subsequent recruitment process and he does not have any existing cause of action. But so far as the other petitioners
are concerned, the learned counsel submits that the inaction on the part of the authorities to regularize their services is absolutely unreasonable and
arbitrary. The learned counsel further submits that there was no occasion for the Board of Directors to adopt the impugned Resolution dated
15.12.2017 without any reason inasmuch as the early resolution dated 20.03.2017 to regularize the services of the petitioners was taken after
threadbare discussion and taking all the relevant materials and factors into consideration. The learned counsel has argued that the case for
regularization, as projected in the Writ Petition would not fall within the exceptions laid down by the Hon’ble Supreme Court in the case of
Secretary, State of Karnataka & Ors. vs. Umadevi & Ors. reported in (2006) 4 SCC inasmuch as the initial entry into the service was after a duly
constituted selection. Further, the number of post not being specific, it would be wholly unreasonable on the part of the Corporation to deny regular
appointment to the petitioners in spite of they being amongst the 44(forty four) numbers of selected candidates. By making a specific reference to the
select list which was prepared after the petitioners had undergone written test, viva-voce and computer test, there is no indication with regard to the
number of vacancies and there is nothing on record to show that only 22(twenty two) numbers of vacancies had to be filled up. The select list also
does not mention anything like waiting list and by their empanelment in the said select list, the petitioners have a right to be considered for appointment
as has been done to the other 22(twenty two) numbers of candidates who have been offered the appointment. Shri Goswami, learned counsel further
submits that by now, the petitioners are in service for a suitable length of time of about a decade and if their services are not regularized, irreparable
loss and injury would be suffered as in the meantime most of they have also crossed the age of entry into Government Service. The learned counsel
for the petitioners has also placed reliance on the agenda note before taking the resolution dated 29.03.2017 which shows that relevant factors like
completion of 2(two) years of unblemished service and experience gathered were taken into consideration along with existence of vacancies where
their services could be regularized were taken into consideration. In the backdrop of such consideration, the learned counsel submits that impugned
resolution dated 15.12.2017 is absolutely unreasonable and appears to have been taken in a mechanical manner without any application of mind. The
learned counsel accordingly prays for setting aside the subsequent impugned resolution dated 15.12.2017 and for a direction to the respondent
authorities to implement the resolution dated 29.03.2017 against item no. 12.
Per contra, Shri Mahanta, the learned Senior Counsel for the respondent-Corporation submits that though it is a fact that the petitioners had
undergone a recruitment process, they were not amongst the selected candidates qua the numbers of vacancies available. He submits that since the
recruitment was carried out by directing the respective Employment Exchange to sponsor candidates, the number of vacancies could not be spelled
out in public. However, by producing the records more particularly, the minutes of discussion dated 27.07.2011, it appears that the number of
vacancies were 22(twenty two) and for this reason, as a norm, a select list of candidates double the number of vacancies was published. Shri
Mahanta, learned Senior Counsel further submits that after filling up of the vacancies, the selection process and the select list becomes otiose but
considering that the petitioners were in the select list, temporary appointments were offered to them which are continuing till date. The learned Senior
Counsel further submits that to ameliorate the difficulties and hardships of the petitioners, they were advised to participate in the subsequent
recruitment process with the assurance that weightage will be given to their experience of the long period of services rendered by them which only
one of the petitioner had availed of and was accordingly inducted as a regular employee. The petitioners choosing not to participate in the subsequent
recruitment process are not entitled to claim regularization on the basis of their appointment made pursuant to the recruitment process initiated in the
year 2011 where the petitioners were not amongst the first 22(twenty two) numbers of candidates.
Rejoining his submissions, Shri Goswami, the learned counsel for the petitioners submits that though fresh recruitment process was undertaken, the
posts were not of LDA-cum-Computer Operator and were different posts and therefore there was no occasion for the petitioners to take part in the
said recruitment process and thereby lose their seniority which they have gathered by serving for a long period.
The rival submissions made by the learned counsel for the parties have been duly considered and the records produced have been carefully
examined.
To deal with the issue at hand, it would be relevant to beneficial to refer the guidelines laid down by the Hon’ble Supreme Court in the case of
State of Karnataka vs. Uma Devi-3, more particularly those laid down in paragraph 53 thereof:
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.
Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 regularisation 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 regularise 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. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but
there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as
per the constitutional scheme.â€
The first criteria which is required to be fulfilled is that the initial induction into the services has to be against a valid sanctioned post. Though the
numbers of vacancies were not in public domain, the records shows that the recruitment process for the post of LDA-cum-Computer Operator
initiated in the year 2011 was for 22(twenty two) numbers of vacancies. It being an admitted case that the names of the petitioners though figured in
the select list was beyond Serial No.22, it cannot be said that the initial entry into the service of the petitioners was against a valid sanctioned post. In
fact, a bare look at the appointment letters of the petitioners would suggest that such engagement was on a temporary basis for a particular period.
Though the said engagement has been extended from time to time and the petitioners continued to serve, the same would not make their initial
appointment against valid sanctioned post. The basic criteria not having been fulfilled, the period of service rendered by the petitioners would not be of
much significance.
Shri Goswami, the learned counsel strenuously argues that the respondent authorities in its own wisdom had taken a resolution to regularize the
services of the petitioners and therefore, they cannot recind their decision causing prejudice to the petitioners. The resolution also noted that vacancies
were existing. Though it appears that the resolution which was taken in the interest of the petitioners was more out of sympathy, said resolution would
be de hors the law laid down by the Hon’ble Supreme Court in the aforesaid case of Uma Devi-3 and therefore this Court cannot find fault with
the subsequent impugned resolution dated 15.12.2017 by which the earlier resolution dated 29.03.2017 against item no. 12 was rescinded.
In that view of the matter, this Court is of the opinion that no indefeasible right for regularization has accrued upon the petitioner and consequent,
the writ petition cannot succeed. Having held so, it is directed that in the event , the petitioners participate in any subsequent recruitment process that
may be initiated for filling up similar nature of posts, the experience gained by them in the long period of service rendered would be a relevant factor
for such selection. It is also directed that since most of the petitioners would be in-house candidates, age bar if any, have to be condoned so far as the
petitioners are concerned. With the aforesaid observation, both the writ petitions stands closed.
Records are returned to the learned counsel for the respondent-Company.