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138 paragraphs · 2,956 wordsD.N. Baruah, J.—The above writ petitions involve common questions of law and facts. Therefore, we propose to dispose of all the above
eight writ petitions by a common judgment. There are altogether 17 petitioners in all in the above Civil Rules.
In Civil Rule Nos. 1152 of 1990, 1259 of 1990, 1304 of 1990, 1327 of 1990, 1425 of 1990 and 1927 of 1990, there are ten petitioners.
These petitioners passed HSLC Examinations and thereafter some of them studied one or two years more. Some of them also obtained diploma in
English and Assamese typewriting. Due to their poor economic conditions, they could not prosecute further studies and were forced to search for
employment to maintain the members of their families. Some of them also registered their names in the local Employment Exchange.
In search of employment they found temporary employment. They worked temporarily on adhoc basis in various departments as Scribe, LD
Assistants and LDAcumMouza Assistants under the estsablishment of the second respondent. Their period of work ranges from seven months to
about two years with breaks.
Their case, inter alia, is that they worked in various departments under the establishment of the second respondent from time to time, with
breaks to the satisfaction of the authorities concerned. After having worked for some time these petitioners were asked to appear in a selection test
by the second respondent. Accordingly, these petitioners appeared in the test. However, their names did not appear in the final select list published
by the second respondent on 4.7.90. These petitioners, thereafter, filed repersentations to the authority concerned. In spite of that, these
petitioners were retrenched from service by orders dated 10.5.90 and 5.790 with effect from 13.5.90 and 17.7.90 respectively.
The petitioners submit that the second respondent being the appointing authority, appointed them to meet the urgent work. These appointments
were on permattent basis. Therefore, by virtue of their experience they deserve regularisation in the post they worked and they ought not fo have
been treated alike with the fresh candidates at the time of selection to the post of LD Assistants by the Selection Board constituted by the second
respondent. They further stated that their experience was totally ignored by the Selection Board which unreasonably dropped their names from the
select list. According to them the action of the respondents are arbitrary, unjust and unconstitutional. They further submitted that they, having
worked in various departments, have acquired valuable right to continue in the service in the post of LD Assistants. They ought not have been
ousted from their service in the name of fresh selection. They also stated that the second respondent, although he gave assurance to regularise ther
sei vices, totally ignored the assurance. It is further submitted that the second respondent adopted a hire a/nd fire policy in respect of the petitioners
and the actions of the second respondent are, therefore, contrary to law and violative of the principles of natural justice, The orders of
retrenchment dated 5.7.90 and 10.5.90 giving effect frojm 13.5.90 and 17.7.90 are, therefore, to be set aside and quashed.
The writ petitioners in Civil Rule N9S 3850 of 1991 and 3919 of 199t, numbering seven, moved this Court praying for issuance of a writ of
Mandamus or direction to the second respondent to appoint these petitioners and to regularise their services in the post of LD AssistantscumTypist
in the amalgamated establishment of the second respondent for which they were selected by him and also for a writ of Certiorari and/or any other
appropriate writ to quash or cancel the appointment oT respondents 5 to 15 (in Civil Rule No. 3850 of 1991) respondents 4 to 14 (in Ciyil Rule
Na 3919 of 199 J).
The writ petitioners in the abive two Civil Rules impleaded all the 10 petitioners in the aforesaid six Civil Rules as respondents 5 to 15 (in Civil
Rule No. 3850 of 1991) and respondentr4 to 14 (in Civil Rule No. 3919 of 1991). Their case, inter alia, is that the second respondent issued
advertisement No. DRE. 17/89/33 dated 27.5.89 inviting applications for filling up the posts of LD Assistants in the amalgamated establishment of
the second respondent. In pursuance of the said advertisement, these petitioners submitted their applications for the said posts to the second
respondent. They fulfilled all the requirements of the advertisement. They also appeared in the interview/test conducted by the Selection Board
constituted by the second respondent. Thereafter, the second respondent issued orders of appointment from time to time. By the said appointment
orders, all these petitioners were also appointed of the basis of a selection list prepared by the said Selection Board.
On being appointed, these petitioners worked for some time as LD Assistants under the establishment of the second respondent, but they were
retrenched by the second and third respondents. They further stated that at the time when they were working as LD Assistants as per the
appointment made by the second respondent, the Secretary, Assam Subordinate Services Selection Board, Guwahati, on 18.2.91 issued
advertisement inviting applications for filling up the posts of LDAcumTypist in the amalgamated establishment of the Deputy Commissioners of the
entire State of Assam. The process of selecting the candidates for the said posts in the office of the amalgamated establishment of the Deputy
Commissioner of the State had already started as per the advertisement dated 18.2.91. These petitioners apprehended that the process of
selection would be completed soon and the candidates selected by the said Subordinate Services Selection Board would be appointed detrimental
to the interest of these petitioners. Hence, they filed these two writ petitions.
These petitioners further averred that the respondents (petitioners in the aforesaid six Civil Rules) also applied for the post of LD Assistants
against the advestisement dated 27.5.89 issued by the second respondent, but the said respondents could not come out successful in the written
test and as such their names were not in the select list prepared by the second respondent on 5.7.90. But the first to third respondents allowed
these respondents to work under the second respondent against regular sanctioned posts. This was in .violation of the Assam Ministerial
Establishment Services Rules, 1967.
These petitioners also stated that in the latter advertisement issued by the Secretary, Assam Subordinate Services Selection Board, the
requisite qualification was raised and in consequence thereof the petitioners were debarred from appearing in the examination. They also stated that
the second respondent should have regularised their service as per; the Government circulars but refused to regularise their service ignoring the said
circulars and instead appointed the respondents (petitioners in the above first six Civil Rules). Therefore, the action of the respondents are illegal
and malafide.
In the Civil Rule No. 3919 of 1991, the first to third respondents filed an affidavitinopposition, which was sworn to by the second respondent.
In this affidavit he denied the allegations made by the `petitioners. It is stated that the Annexure A to the writ petition is not an advertisement inviting
applications from the candidates, but it is only a letter addressed to the Deputy Director of the Employment Exchange, Dhubri, requesting him to
forward some names of the candidates to fill up 10 post of LD Assistants, lying vacant under the amalgamated establishment of the second
respondent during the financial year 198990. These appointments were temporary. It is further stated that on receipt of applications from the
Employment Exchange, examination was conducted and a select list was prepared wherein the names of the petitioners also appeared. This select
list was published on 4. 7. 90.
It is further stated that in 198990 there were only ten number of posts of LD Assistants lying vacant. Afterwards, some more posts fell vacant
due to promotion, retirement and there was sanction of some more post by* the Government for a limited period. These appointments were
necessary for census work, revision of electoral rolls, preparation of electroal rolls for the general election held in 1991. The second respondent
further stated that these appointments were purely temporary in nature and these were only for three months or till the completion of the above
mentioned work and1 it is also clear from the Annexure A to the writ petition in Civil Rule No. 3919 of 1991. He further stated that the petitioner
No. 3 was not appointed under the said appointment letter as there was no vacancy. The appointments of the petitioners 1 and 2 were not against
regular or sanctioned posts.
The respondents further stated that the validity of the select list having expired the petitioners have no right to claim appointment and as they
were not in service after retrenchment with effect from 31.7.91 the question of their regularisation also does not arise.
We have heard Mr. D. N. Choudbury, learned counsel appearing on behalf of the petitioners in Civil Rule Nos. 1152 of 1990, 1259 of
1990,1304 of 1990, 1327 of 1990, 1425 of 1990 and 1927 of 1990, and Mr. S. C. Das, learned counsel appearing on behalf of the petitioners in
Civil Rule Nos. 3850 of 1991 and 3919 of 1991. We have also heard the learned Government Advocate on behalf of the respondents 1 to 3.
From the facts stated above, it appears that the petitioners of the above six Civil Rules were appointed temporarily from time to time on adhoc
basis only to complete the census work, revision of electoral colls, preparation of electoral rolls for the general election. Their appointments were
not on regular basis or against sanctioned posts as would be apparent from the records and the facts stated above. The regular appointments are
to be made as per Rules and from the select list prepared by the Assam Subordinate Service Selection Board.
From the averments of the writ petitioners it appears that these petitioners were appointed on adhoc, temporary basis and they use to work
from time to time with breaks only to complete some additional work. Their claim that they were selected by second respondent who is the
appointing authority after following the procedure laid down for appointment is also not borne by records.
In the counter affidavit filed by the State Government in Civil Rule No 3919 of 1991, it appears that by Annexure A of the writ petition, the
second respondent only made a request to the Deputy Director of Employment Exchange, Dhubri, to forward the names of ten persons to fill up
some posts in Election Branch due to the ensuing election. This was not for regular appointment inasmuch as, as per the procedure laid down, the
regular appointment to the posts can be made only by the second respondent on the basis of a competitive examination to be held at the beginning
of the year, unless otherwise directed by the Government. Therefore, the selection made on the basis of the Annexure A letter cannot be regarded
as selection for regular appointment.
The tea petitioners in the above first six Civil Rules were merely appointed on adhoc basis from time to time. The total period of appointment
of these petitioners varies from seven months to two years. The other seven petitioners in Civil Rule No. 3850 of 1991 and 3919 of 1991 were
appointed on the basis of the requisition made by the second respondent purely on temporary basis to meet the emergent situation that arose due
to census work and general election at the relevant time. Their appointments cannot be said to be regular appointment as will appear from the
counter affidavit filed by the first to third respondents. As stated, the Annexure A to the Civil Rule No. 3919 of 1991 was only a request to the
Employment Exchange and as per the Rules the regular appointment can only be made on the basis of a competitive examination held by the
second respondent. By no stretch of imagination the selection made by the second respondent on the basis of the Annexure A letter can be said to
be regular selection. Besides, the Assam Ministerial Establishment Rules, 1967 lays down the minimum educational and other qualification for
appointment to the post of LD Assistant.
Mr. D. N. Choudhury, the learned counsel for the petitioner has placed reliance on the following decisions : (i) 1991 (1) SCC 662, Mohinder
Singh Garg vs. State of Punjab; (ii) AIR 1967 SC 1071, State of Mysore vs. S. V Narayanappa; (iii) 1988 (3) SLR 346/347, (iv) 1988 (3) SLR
285 (MP), (v) 1985 (4) SCC 43, Ratanlal vs. State of Haryana and (vi) 1984 SCC (Snppl) 212. Mr. Choudhury has also referred to some
circulars issued by the Government regarding appointment on compassionate ground.
In Rabindra Narayan Mohapatra vs. State of Orissa, 1991(2) SCC 599, the Supreme Court dealt with the matter regarding granting of relief
to the members of the teaching community who were being exploited for years together by keeping them in short spells of service of 89 days with
one day break and in the process denying them their rightful dues and other service benefits. The requirement of services of these teachers were
not temporary and their services were still needed. These teachers were appointed for `89 days with short breaks only to deprive them of their
dues and other service benefits. In this case the Supreme Court held that""An appointment on 89 day basis with one day break which deprives a
teacher of his salary for the period of summer vacation and other service benefits, is wholly arbitrary and suffers from the vice of discrimination"". In
that case it was not that their services were necessary for a specific temporary purpose. The Apex Court while deciding the ease found that the
services of these teachers were actually needed but they were denied the benefit of their salary during vacation. Therefore, the Apex Court held
that such action of the State Government cannot .be said to be proper and justified.
In Mohinder Singh Garg vs. State of Punjab 1991 (1) SCC 662, the Supreme Court dealt with altogether a different subject matter and that
(has no relevance in the instant case.
In Jocob M. Pothnparambil vs. Kerala Water Authority, AIR 1990 SC 2228, the Supreme; Court observed that temporary appointment can
be made to serve emergent situation which cannot brook delay. But such temporary appointment cannot be made on long term basis. In this
decision, the Supreme Court only held that temporary appointment should not be on long term basis.
In Ratanlal vs. State of Haryana, 1985 (4) SCC 43, the Supreme Courtdealt with the matter regarding appointment of teachers. The Court
held that if the teachers were appointed regularly, they would be entitled to the benefits of summer vacation alongwith the salary and allowances
payable in respect of that period and to all other privileges such as casual leave, medical leave, maternity leave, etc. available to other Government
servants. Break in service effected so as to deny them the salary for the summer vacation and other benefits to which regular teachers are generally
entitled. These adhoc teachers were unnecessarily subjected to an arbitrary `hiring and firing'' policy and hence the Supreme Court deprecated the
policy of the State Government under which adhoc teachers are denied the salary and other benefits.
Ram Lakhan vs. Union of India, 1988 (3) SLR 346, and other decisions relied upon by the learned counsel for the petitioners also similarly
held that the employees should not be deprived of the benefit due to regular permanent employees if their services are actually needed
permanently.
In the case in hand, from the averments made in the writ petitions and in the affidavitinopposition and also from the records produced before
us, it appears that the appointments of the petitioners were on purely, temporary adhoc basis only to complete the extra work necessary in
connection with census, revision of electoral rolls etc. for the last general election. These writ petitioners were never intended to be appointed on
regular permanent basis and, therefore, they are not entitled to claim regularisation of their employment only because they worked for some time.
Considering the period they worked it cannot be said that because of the service rendered during this period with breaks they are entitled to
get regularisation, without going through the process of regular selection by the Board as per Rules. However, the case of the first petitionerSmti
Subhraja Dutta in Civil Rule No. 1152 of 1990, is different in view of the fact that her father who was an employee in the Police Department died
in harness and her claim stands on a different footing. As per the scheme of the Government the appoint a son or daughter of the Government
servant, who dies in harness. Scheme of such appointment is based on compassionate ground. We, therefore direct the respondents to consider
the case of the first petitioner in Civil Rule No. 1152 of 1990 and appoint her in any vacant post, preferably in Police Department if there is any
vacancy and if not in any other department, preferably in the same place, subject to her being otherwise eligible and qualified.
Regarding other petitioners before us, we direct that the first and second respondents should ensure they are also considered for selection to
be conducted in pursuance of the advertisement dated 18.2.91 alongwith other applicants. In case any of the petitioners herein have not applied in
response to the advertisement, they shall do so within one month from today.
With the above direction, we dispose of the above eight petitions. No order as to costs. Copies of this order shall be sent to first and second
respondents.