1988 Supreme(Gau) 26

GAUHATI HIGH COURT
K.N.Saikia, J.M.Srivastava, JJ.
Hemanta Kumar Pegu: Dulal Azam Sarkar: Siddhartha Dutta: Pradip Kumar Roy: Md.Abdul Quadir: Nakib Saikia: Atfur Rahman: Md.Yoynal Ali and Ors. -Appellant
Versus
State of Assam -Respondent
Civil Rule Nos. 150, 7, 28-44, 46-48, 52, 56, 57, 69-71, 79-84, 93-98, 100-102 and 171 of 1986
Decided On : 25-02-1988

Regularization of an appointment under Regulation 3(f) does not connote permanence and is meant to cure procedural irregularities and defects in the appointment process. Regularization refers to the recruitment process and not to the appointment itself.

Headnote:

APPOINTMENT - REGULARISATION - AGE LIMIT - EXPERIENCE - TRAINING - PUBLIC SERVICE COMMISSION - CONSULTATION - DISCHARGE - VALIDITY - WRIT PETITION - MAINTAINABILITY - PROMISSORY ESTOPPEL - APPLICABILITY - SERVICE JURISPRUDENCE - AD-HOC AND CASUAL EMPLOYEES - RIGHTS AND OBLIGATIONS - CONTRACTUAL OBLIGATION - STATE GOVERNMENT - DUTY - APPOINTMENT UNDER REGULATION 3(F) - NATURE - TEMPORARY OR PERMANENT - DISCHARGE ORDERS - VALIDITY - NATURAL JUSTICE - OPPORTUNITY OF HEARING - ARTICLE 311(2) OF THE CONSTITUTION OF INDIA - APPLICABILITY - DISCHARGE ORDERS - PENAL IN NATURE - MISTAKE - CORRECTION - NOTICE - NECESSITY - WRIT PETITION - AMENDMENT - DISCHARGE ORDERS - CHALLENGE - MAINTAINABILITY - PROMISSORY ESTOPPEL - APPLICABILITY - SELECTION - VALUE AND WEIGHRAGE TO EXPERIENCE AND TRAINING - OVER-AGED PETITIONERS - REMEDY - SALARY AND ALLOWANCES - PAYMENT - INTERIM ORDERS - MERGER.

Fact of the Case:

The petitioners, Block Development Officers (BDOs), appointed under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951, challenged the advertisement issued by the Assam Public Service Commission (Commission) for filling up the posts of BDOs, alleging that it did not provide for relaxation of the upper age limit and did not require experience in the work. They also challenged the discharge orders issued by the State Government and sought a direction to regularize their appointments.

Finding of the Court:

1. The appointments under Regulation 3(f) are temporary appointments created in a service and are not permanent in nature. 2. Regularization of an appointment under Regulation 3(f) does not connote permanence and is meant to cure procedural irregularities and defects in the appointment process. 3. Regularization refers to the recruitment process and not to the appointment itself. 4. The Commission is required to be consulted in all matters relating to methods of recruitment, suitability of candidates, and disciplinary matters, as per Article 320(3) of the Constitution of India. 5. Consultation with the Commission is necessary for appointments under Regulation 3(f) if the post is not temporary or if it is likely to last for more than 4 months. 6. The experience and training acquired by the petitioners during their service as BDOs cannot be totally ignored, but it should not be given undue weightage as to disqualify fresh recruits. 7. The discharge orders issued by the State Government without giving the petitioners an opportunity of being heard are invalid and contrary to the principles of natural justice. 8. The petitioners are entitled to continue in service until appointments are made to their posts on the basis of selection made by the Commission. 9. The Commission is free to give such value and weightage to the petitioners' experience and training as it deems best, other things remaining equal. 10. The petitioners who are selected by the Commission and appointed by the State Government thereafter shall have such rights and obligations as the law envisages.

Issues: 1. Whether the impugned advertisement issued by the Commission was valid and in accordance with the law. 2. Whether the discharge orders issued by the State Government were valid and justified. 3. Whether the petitioners were entitled to regularization of their appointments. 4. Whether the experience and training acquired by the petitioners during their service as BDOs should be considered by the Commission in making the selection. 5. Whether the petitioners were entitled to any relief in light of the discharge orders.

Ratio Decidendi: 1. The impugned advertisement issued by the Commission was valid and in accordance with the law. The Commission was not required to provide for relaxation of the upper age limit or to require experience in the work, as these were not mandatory requirements under the Regulations. 2. The discharge orders issued by the State Government were invalid and unjustified. The petitioners were entitled to continue in service until appointments were made to their posts on the basis of selection made by the Commission. The discharge orders were issued without giving the petitioners an opportunity of being heard, which was a violation of the principles of natural justice. 3. The petitioners were not entitled to regularization of their appointments as regularization does not connote permanence. However, the Commission was required to consider their experience and training in making the selection. 4. The experience and training acquired by the petitioners during their service as BDOs could not be totally ignored, but it should not be given undue weightage as to disqualify fresh recruits. The Commission was free to give such value and weightage to the petitioners' experience and training as it deemed best, other things remaining equal. 5. The petitioners were entitled to relief in light of the discharge orders. They were entitled to continue in service until appointments were made to their posts on the basis of selection made by the Commission. They were also entitled to be paid the usual salary and allowances for the periods they had served by virtue of the interim orders.

Final Decision: The petitions and the Rules were disposed of with the following directions: 1. The discharge orders issued by the State Government were set aside. 2. The petitioners were deemed to have continued in their posts being appointed under Regulation 3(f) until appointments were made to these posts on the basis of selection made by the Commission. 3. The Commission was directed to consider the petitioners' applications along with those of the fresh recruits and give such value and weightage to the petitioners' experience and training as it deemed best, other things remaining equal. 4. The selections made by the Commission were to be forwarded to the State Government according to law. 5. The petitioners were to continue in service until appointments were made. 6. The petitioners who were selected by the Commission and appointed by the State Government thereafter were to have such rights and obligations as the law envisaged.