High Court
Case Details
WP(C) 1277/2012 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (CAV ) 21 petitioners have joined together and have filed the present petitio n under Article 226 of the Constitution of India for quashing of advertisement dated 1.3.2012 issued by the Project Director, District Rural Development Agency (DRDA), Nalbari relating to fresh recruitment of Computer Assistant . Petition ers further seek a direction to the respondents to allow them to continue their contractual service, discontinued temporarily on 21.12.2009. 2.
Legal Reasoning
Facts of the case may be briefly noted. 3. The Project Director, DRDA, Nalbari issued notice dated 25.11.2008 invit ing applications from intending candidates for engagement as contractual staf f in DRDA, Nalbari under NREGA Scheme. The post in question is the post of Com puter Assistant. By the said advertisement, 65 numbers of post of Computer Assis tant were advertised. The qualification prescribed was Higher Secondary (HSSLC ) pass possessing basic Computer and Internet skills. Age limit prescribed was between 21 years to 35 years as on 1.1.2008, relaxable by 5 years in case of r eserve category candidates. It was stated in the advertisement that the engage ments would be purely contractual and co-terminus with the NREGA Scheme. 1. Petitioners being qualified and eligible, applied for the post of Comput er Assistant pursuant to the said advertisement. Thereafter, selection was held following which select lists were published block-wise. All the petitioners were selected and recommended for appointment. The particulars of selection of the Block petitioners are as under :- Petitioner 1 2 21 3 4 6 10 5 7 11 17 8 20 9 16 19 12 14 18 13 15 Position in the select list Paschim Nalbari do do Madhupur do do do Borkhetri do do do Barbhag do Borigog Banbhag do do Pub Nalbari do do Tihu do 11 25 21 11 7 5 10 21 7 11 4 4 11 19 18 11 22 7 18 13 11 2. Petitioners, on being selected and recommended for contractual engagement as Computer Assistant, they reported for joining in the respective block offices . After executing agreements for their contractual appointments, petitioners joi ned on 1.10.2009. 3. While the petitioners were serving, the Project Director issued an order dated 21.12.2009 stating that to make a proper re-assessment o f the requirement of contractual staff and their utility/performance etc., all the contractual engagements under NREGA in Nalbari District were discontinued temporarily with effect from 24.12.2009. 4. The Project Director, thereafter,
Legal Reasoning
issued communication dated 11.1.2010 to all the Programme Officers under NRE GA, Nalbari stating that all the contractual staff engaged earlier should atten d his office for signing of fresh contract for their re-engagement. This was f ollowed by another communication on the next date i.e. on 12.1.2010 informing t hat a decision was taken to engage one Computer Assistant against 3 numbers of Gaon Panchayat. The Programme Officers were requested to inform the Computer A ssistants eligible as per merit list only to attend his office on 18.1.2010 for signing contract papers for their re-engagement. 5. But instead of re-engagin g the petitioners, the Project Director issued a fresh notice dated 1.3.2012 inv iting applications from eligible candidates for engagement as contractual sta ff in the DRDA, Nalbari under MGNREGA Scheme. Amongst the posts advertised, was 47 numbers of post of Computer Assistant, qualification and age limit being th e same as in the earlier advertisement. The fresh advertisement also stated tha t the engagements would be purely contractual and co-terminus with the MGNREGA S cheme. 6. Aggrieved, petitioners have filed the present writ petition seeking the reliefs as indicated above. 7. According to the petitioners, they were ap pointed on contractual basis as Computer Assistant following a selection proce ss. Their appointments were made co-terminus with the NREGA Scheme. The Scheme i s still operational. Therefore, there is no reason for disengaging them, which i n any case, was a temporary measure. Instead of re-engaging the petitioners, re spondents have gone for fresh advertisement, which is not at all justified in t he facts and circumstances of the case. 8. Respondent No.3 i.e. Project Direct or, DRDA, Nalbari has filed an affidavit. Stand taken is that being in contractu al engagement, the service of the contractual staff stands automatically termina ted on expiry of the contract period, unless terminated earlier. It is further stated that on a review made, it was decided to engage one Computer Assistant against 3 numbers of Gaon Panchyat as per merit list for which the eligible can didates were required to attend his office on 18.1.2010. It is further stated that no appointment letter was issued to the contractual staff and they were re quired to enter into monthly agreements with one day gap in between. It is fur ther stated that the contractual service of Computer Assistant and other contrac tual staff were discontinued temporarily with effect from 24.4.2009. 9. Respo ndent No.6 in his affidavit has stated that the Finance Department has nothing t o say in the matter, which is a matter entirely within the domain of the Project Director, DRDA, Nalbari. 10. Petitioners in their reply affidavit have reiter ated the statements made in the writ petition. 11. Heard Mr. D.Choudhury, lear ned counsel for the petitioners and Mr. B.J.Ghosh, learned Government Advocate, Assam. 12. Mr. D. Choudhury, learned counsel for the petitioners submits that work under NREGA Scheme is perennial in nature since the Scheme is in operati on. As per advertisement following which the petitioners were engaged, their c ontractual appointments were made co-terminus with the NERGA Scheme. Moreover, though the contractual engagement of the petitioners were temporarily disconti nued, authorities themselves decided to re-engage them. Therefore, in such cir cumstances, issuance of fresh advertisement is totally unjustified. In support of his submission, learned counsel for the petitioners places reliance on the decision of the Hon’ble Supreme Court in the case of Md. Abdul Kadir and Anr v s. Director General of Police and Ors. reported in (2009) 6 SCC 611. 13. Mr. B. J.Ghosh, learned Govt. Advocate, Assam appearing for the respondents submits tha t there is delay in the filling of the writ petition as the petitioners were dis engaged on 21.12.2009 whereas the writ petition was filed on 14.3.2012. He submi ts that petitioners being contractual employees, they cannot claim any right to continue beyond the contractual period. He places reliance on a Division Bench decision of this Court dated 29.2.2012 passed in Writ Appeal Nos.36 and 37/2012 ( Rubul Ali and Ors. Vs. The State of Assam & Ors) to contend that no relief can be granted to the petitioners. 14. Submissions made have been considered. 1 5. Before proceeding further, it may be noted that this Court by order dated 16 .3.2012 while issuing notice, had directed that appointment to the post of Comp uter Assistants should not be made pursuant to the advertisement dated 1.3.2012 without the leave of the Court. Subsequently, this Court by order dated 12.9.2 012 admitted the writ petition for hearing. 16. On the objection of the lear
Decision
ned Govt. Advocate that the challenge in the writ petition has been made belated ly and, therefore, the Court should not invoke its jurisdiction under Article 22 6 of the Constitution of India, documents placed on record reveal that contractu al service of the petitioners were discontinued temporarily on 24.12.2009. By s ubsequent letters of the authority, all the contractual staff were informed tha t they had to sign fresh contract agreements for their re-engagement, meaning th ereby that they would be re-engaged on contractual basis. In such circumstanc es, there was no reason or necessity for the petitioners to have approached t he Court at that stage. They had to approach the Court only when the Project Di rector issued the impugned notice on 1.3.2012, which was immediately put to chal lenge by filing the present writ petition on 14.3.2012. In view of above, the objection of the learned Govt. Advocate that there was delay in filing the writ petition is of no substance and is, accordingly, rejected. 17. Coming to the claim of the petitioners, it is clear from the advertisement dated 25.11.2008 t hat the contractual engagement of the petitioners would be co-terminus with the NREGA Scheme. The contractual appointments were temporarily discontinued with effect from 24.12.2009 to enable the authority to make a re-assessment of the a ctual need of contractual appointees. It appears that on a review made by the a uthority, it was decided that there should be one Computer Assistant for 3 num bers of Gaon Panchayat. Accordingly, the contractual staff including the Comp uter Assistants, whose services were temporarily discontinued, were asked to a ttend the office of the Project Director for signing fresh contracts for their re-engagement. In the affidavit of the Project Director, he has clearly stated that no appointment letter was issued to the contractual staff and that the pe titioners were required to enter into monthly agreements with one day gap in b etween. It is also admitted that discontinuance of the contractual appointments was a temporary measure. 18. It is, therefore, clear that there was no fixe d contractual period of appointment of the petitioners though they had to ente r into monthly agreements with a day’s break in between. The advertisement da ted 25.11.2008 had made it very clear that the contractual appointments would be co-terminus with the NREGA Scheme. It is not the case of the respondents that NREGA scheme has been withdrawn or has become in-operational. It is also not t he case of the respondents that the performance of the petitioners were not sat isfactory or that their services were required to be dispensed with on discipl inary ground. On the other hand, as can be seen from the documents on record, the contractual engagements were discontinued only as a temporary measure to en able the authority to make re-assessment of the number of contractual staff ac tually required. On completion of the said exercise, the authority has arrived at an assessment that there should be one Computer Assistant for 3 numbers o f Gaon Panchayat. Accordingly, the petitioners were called upon to enter into fr esh agreements for their re-engagement. Therefore, in such a situation, the Cour t is of the view that calling for fresh advertisement is not at all justified. 19. In the case of Md. Abdul Kadir and Anr (Supra), the Hon’ble Supreme Court was considering the adhoc appointment of the appellants of that case under t he Prevention of Infiltration of Foreigners Scheme for Assam. There also the app ellants were appointed following a selection process. However, their adhoc app ointments were continued on yearly basis with artificial termination in between. In the contextual facts of that case, the Hon’ble Supreme Court held that whe n the adhoc appointment is under a Scheme and is in accordance with the selecti on process prescribed by the Scheme, there is no reason why those appointed un der the Scheme should not be continued as long as the Scheme continues. The Ape x Court directed that the appellants should be continued as long as the Scheme continues but only on adhoc and temporary basis, co-terminus with the Scheme. T he practice of resorting to artificial breaks and thereafter making re-appoint ments every year was frowned upon and to that extent, the circular providing for such appointments was quashed. 20. The case relied upon by learned Govt. Advocate i.e. Rubul Ali and Ors( Supra) is distinguishable in facts. In that ca se, the petitioners were provided contractual appointment as Accredited Engin eers (Diploma Holder) by issuing appointment letters. As per the appointment le tters, the appointment period was for six months. After expiry of the term of six months, the petitioners were re-engaged for another one month with a gap of one day in between. Thus the contractual engagement was initially for a period o f 6 months and thereafter extended by one month. Thereafter, advertisement was i ssued following which fresh appointments were made. Therefore, in the facts of that case, the Hon’ble Division Bench reversed the decision of the learned Single Judge in quashing the subsequent advertisement, which in any case, coul d not have been set aside as a whole. 21. As already noticed above, the facts of the present case are entirely different from the facts in Rubul Ali and Ors( Supra). 22. On an overall assessment of the facts and circumstances of the p resent case, the Court is of the view that discontinuance of the contractual en gagements of the petitioners is not justified. Accordingly, respondents, more particularly Respondent No.3 i.e. Project Director, DRDA. Nalbari, are directed to continue with the contractual engagements of the petitioners in terms of ad vertisement dated 25.11.2008. To that extent, the advertisement dated 1.3.201 2 in respect of the 47 posts of Computer Assistant shall stand quashed. 23. Writ petition is accordingly allowed. 24. However, parties are left to bear their own cost.