High Court · 2009

Heard Mr. D.K. Saikia, learned counsel for the petitioner as well as Ms R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam.

2. By means of this writ petition, the petitioner has prayed for a directio n to the respondents to regularize his service as Junior Accounts Assistant on t he basis of the policy decision of the Government contained in various circulars . The further prayer made in the writ petition is to suspend the regular proces s of selection, for which viva-voce test was scheduled to be held on 19.3.2008. While entertaining the writ petition, it was provided that one post of Junior A ccounts Assistant shall be kept aside from the purview of the selection. The petitioner was appointed on casual basis in the year 1996 on creatio 3. n of the Nazira Sub-Divisional Office, Nazira. It is the case of the petitioner that ever since his such appointment, he has been rendering uninterrupted servi ce. In the year 2002, the service of the petitioner was attached with the Sub-Tr easury Office in the same terms and conditions vide Annexure-5 order dated 10.4. 2002. The case of the petitioner for absorption and/or regularization was proces sed and accordingly, the Treasury Officer, Nazira Treasury vide his Annexure-6 l etter dated 23.12.2003 addressed to the Deputy Commissioner, Sibsagar requested to consider the case of the petitioner for absorption as Junior Accounts Assista nt.

4. The Deputy Commissioner, Sibsagar issued an advertisement dated 7.3.2007 (Annexure-7 to the writ petition) inviting applications from the intending elig ible candidates for filling up 5 (five) posts of Junior Accounts Assistant in th e district Treasury establishment. The petitioner also offered his candidature and appeared in the written test held in November 2007. However, he could not qu alify in the written test and accordingly, he was not called for oral test. It w as in that context, the writ petition was filed.

5. In the counter affidavit filed by the respondents, it is their stand tha t the petitioner could secure only 30 and 20 marks respectively in General Engli sh and General Mathematics and 55 marks in General Knowledge as against the qual ifying/cut-off-marks of 40 each for General English and General Mathematics. Th us, according to the respondents, the petitioner having failed to qualify in the written examination could not be called for in the viva voce test.

6. As regards the prayer for regularization of services of the peti tioner, the respondents have referred to the Full Bench decision of this Court i n Jiten Kalita v. State of Assam & Ors, reported in (2006) 2 GLT 654. By the sa id Full Bench decision, the policy decision on which the petitioner has placed r eliance has been held to be not a valid policy decision. It has been held that t he casual employees cannot claim automatic regularization. Mr. D.K. Saikia, learned counsel for the petitioner submits that since t 7. he petitioner has rendered by now uninterrupted about 13 years of service, he de serves special consideration in terms of the decision of the Apex Court in Secre tary, State of Karnataka v. Umadevi (3) & Ors, reported in (2006) 4 SCC 1. In p aragraph 53 of the judgment, it has stated thus :- (cid:28)53. ointments (not illegal appointments) as explained in S.V.Narayanappa : State of Mysore v. S.V.Narayanappa: (1967) 1 SCR 128 :AIR 1967 SC 1071, R.N.Nanjundappa : R.N.Nanjundappa v. T.Thimmiah, : (1972) 1 SCC 409 : (1972) 2 SCR 799 and B.N.Na garajan : B.N.Nagarajan v. State of Karnataka : (1979) 4 SCC 507 : 1980 SCC (L& S)4 : (1979) 3 SCR 937 and referred to in para 15 above, of duly qualified perso One aspect needs to be clarified. There may be cases where irregular app ns in duly sanctioned vacant posts might have been made and the employees have c ontinued 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 s uch employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this ju dgment. In that context, the Union of India, the State Governments and their ins trumentalities should take steps to regularise as a one-time measure, the servic es 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 va cant sanctioned posts that require to be filled up, in cases where temporary emp loyees 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 a lready made, but not sub judice, need not be reopened based on this judgment, bu t there should be no further bypassing of the constitutional requirement and reg ularising or making permanent, those not duly appointed as per the constitutiona l scheme. (cid:29) 8. Mr. Saikia, learned counsel for the petitioner has also placed r eliance on a decision of the Apex Court in U.P. State Electricity Board v. Poora n Chandra Pandey & Ors, reported in (2007) 11 SCC 92 in which referring to the aforesaid decision in Umadevi (3) (supra), the Apex Court observed thus:- We are constrained to refer to the above decisions and principles contai (cid:28)16. ned therein because we find that often Umadevi (3) case 1 is being applied by co urts mechanically as if it were Euclid’s formula without seeing the facts of a p articular case. As observed by this Court in Bhavnagar University : (2003) 2 SCC 111 and Bharat Petroleum Corpn Ltd : (2004) 8 SCC 579 : AIR 2004 SC 4778, a lit tle difference in facts or even one additional fact may make a lot of difference n the precedential value of a decision. Hence, in our opinion, Umadevi (3) cas e 1 cannot be applied mechanically without seeing the facts of a particular case , as a little difference in facts can make Umadevi (3) case 1 inapplicable to th e facts of that case.

17. In the present case the writ petitioners (the respondents herein) only w ish that they should not be discriminated against vis-à-vis the original employe es of the Electricity Board since they have been taken over by the Electricity B oard (cid:28)in the same manner and position (cid:29). Thus, the writ petitioners have to be de emed to have been appointed in the service of the Electricity Board from the dat e of their original appointments in the Society. Since they wee all appointed in the Society before 4.5.1990 they cannot be denied the benefit of the decision o f the Electricity Board dated 28.11.1996 permitting regularisation of the employ ees of the Electricity Board who were working from before 4.5.1990. To make a co ntrary view would violate Article 14 of the Constitution. We have to read Umadev i (3) case 1 in conformity with Article 14 of the Constitution, and we cannot re ad it in a manner which will make it in conflict with Article 14. The Constituti on is the supreme law of the land, and any judgment, not even of the Supreme Cou rt, can violate the Constitution.

18. We may further point out that a seven-Judge Bench decision of this Court in Maneka Gandhi v. Union of India : (1978) 1 SCC 248 : air 1978 SC 597 has hel d that reasonableness and non-arbitrariness is part of Article 14 of the Constit ution. It follows that the Government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Kgabd hi case is a decision of a seven-Judge Bench, whereas Umadevi (3) case 1 is a de cision of a five-Judge Bench of this Court. It is well settled that a smaller Be nch decision cannot override a larger Bench decision of the court. NO doubt, Man eka Gandhi case does not specifically deal with the question of regularisation o f government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application.

19. In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years’ service and it will surely not be rea sonable if their claim for regularisation is denied even after such a long perio d of service. Hence apart from discrimination, Article 14 of the Constitution wi ll also be violated on the ground of arbitrariness and unreasonableness if emplo yees who have put in such a long service are denied the benefit of regularisatio n and are made to face the same selection which fresh recruits have to face. (cid:29)

9. The petitioner has been continuing in his service without any interrupti on. The respondents, while considering the case of the petitioner, may bear in mind the aforesaid observations of the Apex Court. As regards the claim of the p etitioner for regularization in terms of the impugned selection, same cannot be granted for the simple reason that the petitioner failed to qualify in the writt en examination. The stand of the respondents in paragraph 9 of the counter affi davit regarding failure of the petitioner to qualify in the written examination has not been dealt with in the affidavit-in-reply. The only case is that he havi ng continued in the service for long 13 years, his service should be regularized .

10. Writ petition is disposed of providing that the respondents may consider the case of the petitioner for regularization in terms of the aforesaid two dec isions and pass appropriate order in accordance with law. The interim order pass ed on 17.3.2008 stands vacated.