High Court · 2012

t Guarantee Act (for short hereinafter referred to as the MNREGA). We have heard Mr. J.I. Borbhuiya, learned counsel for the appellants, Ms. S. Sha rma, learned State Counsel for the official respondents and Mr. P.D. Nair, learn ed counsel for Respondent Nos.5 & 6. In both the appeals, the parties in the fray are admittedly Diploma Holders in C ivil Engineering. In response to an advertisement dated 19.12.2008 issued by t he Deputy Commissioner, Kamrup-cum-District Programme Coordinator, National Rur al Employment Guarantee Scheme, Kamrup for appointment to 140 posts of Accredit ed Engineer on contractual basis under all the Development Blocks/Gaon Panchayat areas of Kamrup District, the private respondents submitted their candidature and were eventually provided with contractual appointment by letters dated 27.0 8.2009 for a period of 6(six) months from the date of joining subject to the te rms of contractual engagement of their service and were accordingly placed at th e disposal of the authorities as mentioned therein. The letters of appointment, in specific terms mentioned that the contractual appointment would be governed by the terms of contractual engagement as envisaged therein. The contract agree ments were executed by and between the parties, Clause 2 whereof read as hereund er: Duration of contract: The engagement shall be purely on contract basis f (cid:28)2. or the period as mentioned in the Order for Contractual Engagement, unless termi nated earlier. The services of the contractual staff shall stand automatically terminated at the expiry of the contract period, unless terminated earlier, with out any necessity of the Agency giving any notice to the contractual staff and without any liability on the part of the Agency to pay any retrenchment or other compensation or other amounts to the contractual staff. The contract may also be terminated without assigning any reason before the contract period by either party subject to giving one month’s advance notice to the other party (cid:29). Noticeably, the period of contractual appointment as mentioned hereinabove was i n the face of a stipulation in the letter No.DRD-15/75/2008/18, dated 27.10.200 8 to the effect that the contractual engagement would be co-terminus with the NR EGA and in accordance with the provisions of Govt. of India Rules/Conditions fra med thereunder. Nevertheless, the advertisement dated 19.12.2008 soliciting app lications for appointment amongst others to the post of Accredited Engineer, in clear terms mentioned that the normal duration of contract would be 6(six) mont hs in the maximum. While the private respondents on being offered the contractual appointment as above, joined the respective posts and had been rendering their services, the Commissioner, Panchayat & Rural Development, Assam vide notification No.DRD-15/8 4/09/112 dated 19.05.2010 invited applications from eligible candidates to be en gaged as Accredited Engineer (Diploma holders) on purely contractual basis under MGNREGA. The educational qualification was prescribed to be Diploma in Civil E ngineering with the age limit between 18 years to 35 years as on 01.10.2010. Pe rceiving that the fresh process if accomplished, would spell their ouster from s ervice as by then, they, though, academically qualified had been rendered over a ged with the lapse of time, the private respondents approached this Court with t he two writ proceedings referred to hereinabove seeking its intervention. They , not only did seek annulment of the new process initiated by the impugned adver tisement dated 19.05.2010, they implored as well for a restraint on the State re spondents against dislodging them from their continuing engagement. A di rection to the State respondents to condone their over age was also prayed for. The Respondent No.4, Project Director, District Rural Development Agency, Kamrup District in his affidavit while admitting the facts bearing on the process lead ing to the appointment of the private respondents as Accredited Engineers on con tractual basis, emphasized that on the expiry of the initial term of six months they were re-engaged for another one month with a gap of one day in between. Ac cording to the answering respondent, the re-engagement of the private respondent s as Accredited Engineers stood automatically terminated on the completion of th e said period of one month and that this was communicated vide office letter No .KR/NREGA/36/2008-09/1745 dated 26.02.2010. It was highlighted as well in the affidavit that the performance of the most of the Accredited Engineers earlier e ngaged was not up to the mark due to lack of technical knowledge and skill as mo st of them were not diploma holders in Civil Engineering and that it greatly ham pered the progress of works under the MGNREGS which was a flagship programme of the Govt. of India. The answering respondent also indicated that in the comprehe nsion of the Panchayat and Rural Development, the works under the MGNREGS needed very active and dynamic incumbents and that with this objective in mind, the im pugned advertisement No.DRD-15/84/09/112 dated 19.05.2010 had been issued and a fresh process in terms thereof was initiated. The respondent authority however admitted that the private respondents, though had fulfilled the academic qualifi cation prescribed by the new advertisement, they were over aged. Admittedly, in the writ proceedings the appellants herein had not been impleaded. The learned Single Judge by the judgment and order impugned sustained the challe nge only on the ground that the appointments of the writ petitioners having been made under a scheme, those were co-terminus therewith and that the implied term ination thereof sought to be occasioned by the impugned advertisement and the re lated process was impermissible in law. The advertisement as a whole was interf ered with. The letter dated 07.05.2010 of the Joint Secretary, Panchayat & Rura l Development Department preceding the said initiative was also set aside. As meanwhile, the appellants herein had been selected in the new process and had been appointed as Accredited Engineers on contractual basis and detailed as wel l in their respective posts, they being aggrieved sought the leave of this Court to file the instant appeal which was granted to them. Mr. Borbhuiya in the above backdrop has argued that as the appointments of the private respondents on contractual basis were visibly for a fixed term of 6 mon ths and thereafter extended by one month terminable at the end thereof, the lear ned Single Judge erred in law and on facts in making it co-terminus with the sch eme, which had never been intended by the State respondents. According to the l earned counsel, as the administrative decision contained in the letter dated 07. 05.2010 culminating in the impugned advertisement had not been challenged in the writ proceedings, the annulment thereof is per se erroneous. Mr. Borbhuiya has urged that the private respondents/writ petitioners being not eligible in terms of the advertisement and it being specific stand of the concerned departmental authority that their performance was not up to the desirable standard, interfere nce with the fresh selection process and the appointment on the basis thereof do es not accord with public interest. Whereas, Ms. Sharma has endorsed the steps taken by the State respondents in ini tiating a fresh process and making appointments thereunder to promote the qualit y of performance to further the scheme, Mr. Nair with reference to the letter d ated 27.10.2008 alluded hereinabove, has maintained that the view taken by the l earned Single Judge is unassailable and therefore the appeals ought to fail. Co ntending that admittedly the private respondents at all relevant times were qual ified to be appointed under the new process as well, their request for condonati on of the overage having been declined, without any justification, any interfere nce with their continuation of the service as on date in the same posts would re sult in irreparable prejudice to them. We have duly extended our consideration to the pleadings and the documents avail able on record. The letter No.DRD-15/75/2008/18, dated 27.10.2008 referred to hereinabove deal w ith engagement of contractual staff under DRD for implementation of MNREGS. A pl ain reading thereof reveals inter alia that Accredited Engineers are to be appoi nted on contract basis vis-à-vis the implementation of the aforementioned scheme and that such purely contractual engagement would be co-terminus with the MGNRE A or any Govt. of India Rules/ Conditions framed thereunder. The advertisement d ated 19.12.2008 that followed however mentioned that normal duration of the cont ract would be for a maximum period of 6 months. As adverted to hereinabove, lett ers of appointment dated 27.08.2009 and the Clause - 2 of the contract agreement in no uncertain terms mentioned that engagement would be purely on contract bas is for the period as mentioned in the order for contractual engagement unless te rminated earlier. The authorities concerned reserved the right also to terminat e the contractual agreement even before the expiry of the period as specified without assigning any reason. To reiterate, the letters dated 27.08.2009 mentio n that the engagement on contractual basis would be for a period of 6 months fro m the date of joining and that the contractual engagement of the incumbent would be governed by the terms of contract agreement. A cumulative reading of the letters dated 27.10.2008, the letters of appointment dated 27.08.2009 and Clause - 2 of the contract agreement clearly evinces that the initial term of the engagement of the private respondents/writ petitioners a s Accredited Engineers was for 6 months. They had also accepted the appointment s as such without any demur. That the period of 6 months was thereafter extend ed by a timeframe of one month, on the expiry whereof, their engagement in the a forementioned capacity was contemplated to stand terminated is apparent from the letter dated 26.02.2010 of the Project Director, District Rural Development Age ncy, Kamrup. On the date of the advertisement i.e. 19.05.2010 therefore, there was no subsist ing appointment/engagement of the private respondents as Accredited Engineers un der the aforementioned scheme. The impugned advertisement obviously emphasized on an upgradation of the academic qualification of the Accredited Engineers visu alized for the aforementioned scheme. Whereas, in the first process Diploma in Engineering (Diploma Holder in Engineering) was a desirable qualification, in th e new enterprise it was insisted upon to be an essential condition of eligibilit y. There is, however, no wrangle at the Bar that the private respondents/writ p etitioners satisfied this criterion of academic qualification though however on the relevant date of the advertisement i.e. 19.05.2010 they were ineligible bein g over aged. Mr. Nair has candidly admitted in course of the arguments in the writ proceeding s that no leave was sought for from the Court to enable the writ petitioners to participate in the impugned process after securing condonation of their over age . Admittedly, therefore, the private respondents/writ petitioners had not taken part in the new process. The Apex Court in MOHD. ABDUL KADIR AND ANOTHER versus DIRECTOR GENERAL OF POLIC E, ASSAM AND OTHERS (2009) 6 SCC 611 was seized a fact situation, where the app ellants therein, two ex-servicemen, had been employed under the Prevention of I nfiltration of Foreigners Additional Scheme, 1987 (PIF Additional Scheme) as Sub -Inspectors after undergoing a selection process therefor. The appointment lette rs issued to them mentioned clearly that the appointments were purely on ad-hoc and temporary basis and that they would be discharged without assigning any reas on or notice, in any contingency in future. No fixed term of such appointment w as however mentioned. The circular dated 17.03.1995 thereafter issued by the Inspector General of Poli ce (Border), Assam laying down the procedure for appointment/continuation of ex- servicemen as ad hoc border staff stipulated that all appointments shall be for a contract period of one year. Their appointment having been terminated in com pliance of the above clause, the appellants initiated writ proceedings before th is Court. Though, they met initial success before the learned Single Judge, a D ivision Bench of this Court reversed the determination. The matter, in this back drop reached the Apex Court. Their Lordships in the contextual facts observed that when the ad hoc appointmen t is under a scheme and is in accordance with the selection process prescribed t hereby, there is no reason why those appointed under the scheme should not be co ntinued as long as the scheme continues. It is precisely this observation that has been relied upon by the learned Single Judge to sustain the challenge of t he private respondents/writ petitioners. Having regard to the facts recited hereinabove, we are of the view that those ar e distinguishable from the one as obtained in the cited authority. In the case in hand, the contractual engagement was initially for a period of 6 months and t hereafter extended by one month. The letters of appointments of the writ petitio ners clearly mentioned this timeframe and was supplemented by the stipulations c ontained in the contract agreement executed by them without any cavil. There bei ng a conscious departure from the letter dated 27.10.08 qua the term of such app ointment and not objected to by the writ petitioners, they cannot be permitted b y resile from this express condition of appointment limiting the tenure thereof. Moreover, as indicated hereinabove, the contractual appointment/engagement of t he private respondents/writ petitioners which was for a fixed period of 6 months to start with was extended thereafter by one more month, whereafter, the same g ot automatically terminated. The evaluation of the departmental authority of the attendant facts and circumstances necessitating initiation of a fresh process f or upgrading the level of performance in the interest of better implementation o f the scheme is also an additional dimension, which can by no means be considere d as irrelevant or impertinent when viewed in the perspective of execution of a project of public interest. The analogy of the decision of the Apex Court in MO HD. ABDUL KADIR AND ANOTHER versus DIRECTOR GENERAL OF POLICE, ASSAM AND OTHERS (Supra) according to us cannot be drawn in the present facts and circumstances. We respectfully differ, therefore, from the conclusion arrived at by the learned Single Judge. In any view of the matter, the advertisement dated 19.05.2010 an d the letter dated 07.05.2010 could not have been set aside as a whole. The appeals have merit and are allowed. The impugned judgment and order is set aside. The State respondents would take necessary follow up steps without undue delay. No costs.