High Court · 2009

I have heard Mr. K.K. Mahanta, learned Sr. Advocate assisted by Mr. A.S. Choudhu ry, learned Advocate for the petitioner and Mr. B. Goswami, learned Standing Cou nsel, Flood Control Department, Govt of Assam for the respondents. The rival pleadings ought to be outlined in brief. The petitioner who claims he rself to be a member of the Scheduled Caste community, vide order dated 30.10.19 98 of the Executive Engineer of the aforementioned establishment was appointed a s a work charged employee on fixed pay for a period of 89 days. The term of her engagement as above, was thereafter extended from time to time and by the offic e order dated 21.06.1999 of the said authority, she was made to continue until f urther orders. Subsequent thereto, vide order dated 08.09.1999, the petitioner was allowed to work as Typist in the Divisional Office of the same organisation. While the matter rested at that by the impugned letter dated 18.01.2002 her se rvices were terminated with effect from the same date. This Court while issuing Rule on 04.02.2002 in the interim restrained the offici al respondents from giving effect to the impugned order of termination. The wri t petition was dismissed for non-prosecution on 02.01.2008, only to be restored later on. On 08.09.2008, the interim order was also revived. By order dated 06 .01.2009 this Court required the Department to disclose its stand with regard to the implementation of the Finance Department’s Circular dated 31.10.2001 with a special emphasis on the fact as to whether termination of employees in terms th ereof had been as a matter of policy by the State Government. By the order date d 13.03.2009 this Court required the learned Standing Counsel, Water Resources D epartment(Flood Control Department having been renamed as such) to produce the appointment order of persons named in the Paragraph - 10 of the writ petition. According to the writ petitioner, though similarly situated persons had been all owed to continue in services, she had been terminated. The Executive Engineer, Palashbari Water Resources Division, Mirza in his affida vit, in substance, while admitting that the petitioner had been initially engage d as a fixed pay employee for a period of 90 days, which thereafter was extended from time to time, has pleaded that the termination of her services had been pu rsuant to the notification No.FC(III) 24/92/pt/78 dated 30.10.2001 and Memo No.C E.FC(E) 124/95/51 dated 31.12.2001. While admitting that the incumbents named i n the Paragraph - 10 in the writ petition had been appointed as regular staff by the deponent’s predecessor in office in exercise of his discretionary power, th e answering respondent has sought to contend that as the petitioner had been app ointed as a fixed pay employee on temporary basis, that too after 01.04.1993, he r services were rightly terminated in conformity with the decision conveyed in t he notification dated 30.10.2001. The petitioner in her affidavit-in-reply has reiterated that appointment of the persons named in Paragraph - 10 of the writ p etition had been without any selection and that they, as well had initially star ted as work charged employees in the same establishment. In his additional affidavit, the Secretary to the Govt. of Assam, Water Resource s Department has maintained that the termination of the employees in terms of th is notification/circular dated 30.10.2001 has been a matter of policy of the Sta te Government as is applicable in the case of Muster Roll/Work Charge employees engaged after 01.04.1993. Mr. Mahanta, has emphatically urged that as admittedly persons similarly situate d like the petitioner amongst others named in Paragraph - 10 of the writ petitio n had been allowed to continue in service, her ouster is an act of hostile discr imination and therefore it is a fit case where the impugned order of termination ought to be interfered with in the interest of justice. Mr. Goswami has submitted that even assuming that the incumbents referred to in the writ petition have been recruited illegally, the same per se would not confe r any right on the petitioner to continue in service in the face of the governme nt policy contained in the notification dated 30.10.2001. On a plain reading of the pleadings of the parties, it is more than apparent tha t the initial engagement of the petitioner had been as a work charge employee on a fixed pay for a limited term of 89 days. This term, as the records reveal wa s enlarged from time to time and eventually was extended until further orders. There is no denial of the fact that she as a fixed pay employee was also utilize d as a Typist in the Divisional Office of the said establishment. The existence of the office memorandum dated 30.10.2001 containing the norms for continuing t he Muster Roll/Work charge employees engaged after 01.04.1993 is also not disput ed. In terms thereof, any Muster Roll worker/ Work charge employee engaged after 01.04.1993 and had completed five years of continuous service as on 24.01.2001 was construed to be eligible to be continued in their respective capacity subjec t to proper verification of his/her engagement by the respective authority. On simple arithmetic as on 24.01.2001, the petitioner not having completed five yea rs of continuous service was not eligible to be continued in service. If the te rmination of the petitioner’s services can be traced to be valid in terms of the office memorandum, in the opinion of this Court the impugned action cannot be f aulted with. The appointments of the persons named in Paragraph - 10 of the writ petition, in the face of the nature thereof, as admitted by the concerned State authority ha s to be unhesitantly held to be illegal and not in accordance with the constitut ional scheme of appointment to public office. Though, on the basis of the copie s of the appointment orders produced by Mr. Goswami in course of arguments an en deavour has been made to demonstrate that the persons concerned were appointed a gainst regular substantive posts and that therefore they cannot be construed at par with the petitioner, this Court does not feel persuaded to lend its concurre nce to the manner of their induction in service. Be that as it may, there being no other unimpeachable evidence on record to hold that these appointments are nothing but stray acts of indiscretion of the autho rity concerned, it is difficult to conclude these are valid though in departure from the government policy as evidenced by the office memorandum dated 30.10.200 1. It would be up to the State respondents to do the needful in this regard. The Apex Court in SECRETARY, STATE OF KARNATAKA AND OTHERS -Vs- UMADEVI (3) AND OTHERS, (2006) 4 SCC emphasised on the uncompromised observance of the constitut ional scheme of appointment in public office in unequivocal terms and discourag ed and disapproved ad-hocism in this regard. Directions on equitable considerati ons for regularization of such ad-hoc/casual employees in contravention of the c onstitutional imperatives in this regard was also discountenanced. Having regard to the nature of the engagement of the petitioner, which admittedl y was not in consonance with the procedure prescribed by law for appointment in public post, it is obvious that thereby she had not been vested with any unassai lable right to continue in service. The termination of her services having been claimed to have been made in conformity with the government policy contained in the office memorandum dated 30.10.2001, there being nothing on record to conclu de to the contrary, her challenge to the impugned order cannot be sustained. Th e appointment of the persons named in Paragraph - 10 in the writ petition in the manner so done, per se in the opinion of this Court does not evidence a valid d eparture from the government policy as conveyed by the office memorandum dated 3 0.10.2001. The same by no means would entitle the petitioner to continue in serv ice. The plea taken on her behalf in this regard, therefore fails. In view of the negation of the challenge of the petitioner with regard to the t ermination of her services, this Court is not inclined to attend to the conseque ntial prayer as made by her. In the result, the petition is dismissed. No cost s.