High Court · 2008

The petitioners, numbering 3 (three), are aggrieved by the order of term ination of their services. The order was passed on 17.12.1999, but they are cont inuing in their services on the strength of the interim order passed by this C ourt on 22.12.1999.

2. There is no dispute that the petitioners were appointed as Grade-IV emp loyees dehorse the recruitment rules. The orders of their appointment reflect t he same.

3. By order dated 29.12.1998, the petitioners No.1 and 2 were appointed as Seasonal Field Khalasi with effect from 2.1.1999. Thereafter, the petitioner N o.1 was appointed as Film Developer by order dated 7.5.1999. Similarly, the pet iioner No.3 was also appointed as Grade-IV employee with effect from 19.7.1999 against a transfer vacancy. The service of the petitioner No.1 as Film Develop er was dispensed with and thereafter, she was re-appointed as Zinc Corrector. B y yet another order dated 6.11.1999, the petitioner No.2 was temporarily appoint ed as Helper.

4. All the aforesaid appointments of the petitioners were temporary and deh orse the recruitment rules. Their services were terminated by the impugned Anne xure-’B’ series orders dated 17.12.1999. Being aggrieved, they filed the writ petition and presently, are continuing in their services on the strength of the interim order passed by this Court.

5. From the aforesaid fact, it is seen that the petitioners were so appoint ed purely on temporary basis for a limited duration. They did not even contin ue in their services for one year at the time of termination of their services but by now, have rendered 9/10 years of service on the strength of the interim order passed by this Court.

6. The respondents have filed their counter affidavit denying the contentio ns raised in the writ petition. Their stand is that the petitioners were illeg ally appointed dehorse the recruitment rules. On enquiry, it was found by the Go vernment that the appointments were made by the then Director of Land Records S hri J. C. Pegu without following the procedure and insisting on prescribed quali fication . Having noticed the same, the Government by its letter dated 7.9.199 9 issued direction for termination of such illegal appointments. Thereafter, the impugned order was issued terminating the services of the petitioners.

7. In the affidavit-in-reply, the petitioners have not denied the stand of the respondents that they were appointed illegally. What they have contended is that since they have been continuing in their services for all these years, the ir services are required to be treated as regular.

8. s Mr. U.K. Nair, learned Standing Counsel, Directorate of Land Records. I have heard Ms B. Bhuyan, learned counsel for the petitioners as well a

9. While Ms Bhuyan, learned counsel for the petitioner has placed reliance on the decision of this Court dated 28.2.2006 in WP(C) No.6458/1999 (Rajib Kakat i v. State of Assam & Ors), Mr. Nair, learned counsel appearing for the responde nts has placed reliance on the decision dated 10.2.2005 passed in WP(C) No.6515/ 1999 (Ms Ratnali Boro v. State of Assam & Ors).

10. Both the aforesaid decisions pertain to the same department concerning termination of services of the petitioners involved therein. In Rajib Kakati (su pra), the order of termination was set aside by this Court on the ground that t here was violation of principles of natural justice. The Court noticed that he p etitioners in the said writ petition were holding Grade-III and II posts and th ey were appointed pursuant to advertisement and selection. It was in that conte xt the Court found fault with the termination of their services.

11. Unlike the aforesaid case, in the instant case, the petitioners were appointed dehorse the recruitment rules for temporary duration. In Ratnali Boro (supra), the petitioners were aggrieved by same nature of termination orders im pugned in this writ petition. They were also the appointees like that of the pe titioners. In that case also, they were appointed dehorse the recruitment rule s. As in the instant case, in that case also, the petitioners were continuing in their services on the strength of the interim order passed by this Court. Ha ving regard to the said fact situation, this Court declined to interfere with t he orders of termination. However, it was provided that in the event of filli ng up the posts, the respondents should consider the case of the petitioners al ong with other similarly situated persons. It was further provided that in the e vent of finding that the petitioners are over-aged, the respondents would condo ne the age bar. The aforesaid decision in Ratnali Boro (supra) squarely covers this cas 12. e. The emphasis put by the learned counsel for the petitioners on the long co ntinuance of service of the petitioners, cannot be accepted. In the normal cou rse, the petitioners continued in their services barely for one year and even less than that, but they have been continuing in their services on the strength of the interim order passed by this Court. As has been held by the Apex Court i n the case of Secretary State of Karnataka v. Uma Devi (3) reported in (2006) 4 SCC 1, such (cid:28)litigious employment (cid:29) is of no consequence. The petitioners did no t continue in their services on the strength of merit of their case, but they ha ve continued in their services on the strength of the interim order passed by th is Court. In the said case, it has been held that wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perp etuating the illegality, irregularity or impropriety.

13. As regards the plea of violation of the principles of natural justice, s ame will have to be understood in the background of the fact situation involved in a case. When the very appointment of the petitioners itself is in question, a s has been held by the Apex Court in A. Uma Rani v. Registrar of Co-operative So cieties reported in (2004) 7 SCC 112 giving opportunity of hearing to the petiti oners would be a futile exercise. As has been held by the Apex Court in Madhya Pradesh Hasta Shilpa Vikas Nigam Limited. V. Davendra Kumar Jain reported in (19 95) 1 SCC 638, temporary services terminated without notice would not attract Ar ticle 311 of the Constitution of India. In the instant case, the petitioners we re appointed illegally by the then Director of Land Records. Learned counsel for the petitioners also emphasized on the humanitarian 14. aspect of the matter so as to contend that the matter needs sympathetic consider ation. As has been held by the Apex Court in Ahmedabad Municipal Corporation v . Virendra Kumar Jayantibhai Patel, reported in (1997) 6 SCC 650, the sympathy o r equality is out of place especially, where the selection is governed by stat utory rules. If the plea of the petitioner is to be accepted, it will be open fo r the department to favour any person or to appoint any person without followin g the procedure provided in the recruitment rules, which would also lead to nep otism and arbitrariness.

15. For all the aforesaid reasons, I do not find any merit in the writ pet ition and accordingly, it is dismissed. The interim order passed on 22.12.1999 s tands vacated. However, it is provided that in the event of initiating any regul ar process of selection as per the recruitment rules, it will be open for the p etitioners to sit in the said selection and as has been provided in Ratnali Bor o (supra), the respondents shall consider the condonation of the age bar of the petitioners if the same is required to be done.

16. Writ petition is dismissed leaving the parties to bear their own costs.