Back
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, J.
Dilip Kalita S/o Sri Gahin Kalita - Appellant
Versus
The State of Assam And Ors. - Respondent
WP(C) 3585 of 2018
Decided on : 02-11-2021
Assam Public Services (Preferential Appointment) Rules, 1986 - Rule 2 (a) - Assam Secretariat Subordinate Rules, 1963 -Constitution of India, 1950 - Article 226 - Regularization of service - Ad hoc employment - Determination of seniority - Territories in relation to which it exercise jurisdiction - Petitioner has put to challenge a decision of Cabinet - Petitioner is also prayed for setting aside gradation list and for a direction to grant regularization of ad hoc services of petitioner and to take into account such services while calculating interse seniority - Whether service rendered on ad hoc basis should be taken into consideration while calculating seniority.
Finding of the Court:
Petitioners would not be entitled to benefit of ad hoc period of service and seniority is to be reckoned with from date of regular appointment - Court to reopen issue which has already attained finality - He submits that along with petitioner, in total 26 nos. of persons were given benefit of Act and not a single one have been given benefit of seniority for ad hoc period of service rendered and therefore there is no case of any discrimination or violation of Article 14 of Constitution of India - As regards private respondents, some of them already expired and some have retired and therefore there is otherwise no live cause of action to be adjudicated - writ petition, petitioner, for sake of transparency and fairness ought to have annexed a copy of judgment - In any case copy of said judgment has been annexed in affidavit-in-opposition and in it has been clearly held that petitioners would not be entitled to benefit of ad hoc period of service while reckoning of his seniority - Court is of opinion that after such conclusive determination of same issue which petitioner had allowed to attain finality, petitioner is not entitled to reopen same only on basis of a liberty granted subsequently by Court to submit a representation - Fact that none of similarly situated 26 other incumbents have been given benefit of seniority would go to show that no case for discrimination has been made out.
Result: writ petition dismissed
JUDGMENT :
The extraordinary jurisdiction of this Court is sought to be invoked by filing this application under Article 226 of the Constitution of India whereby the petitioner has put to challenge a decision of the Cabinet dated 27.12.2017 and the consequential order dated 14.02.2018. The petitioner is also prayed for setting aside the gradation list dated 23.12.2002 and for a direction to grant regularization of the adhoc services of the petitioner and to take into account such services while calculating the interse-seniority.
2. To appreciate the issue involved, it would be convenient to put on record the basic
3. The present writ petition is the fourth round of litigation. In the year, 1986 the State facts of the case.
Government had promulgated a set of Rules known as Assam Public Services (Preferential Appointment) Rules, 1986 (hereinafter called, Rules of 1986). The object and purpose of the Rules was to give preference to victims of atrocities during the Assam Agitation mainly in the period from 1979 to 1985. The petitioner who claims to be eligible under the said Rules applied for appointment and vide order dated 29.01.1990, he was appointed on adhoc basis as Lower Division Assistant (LDA) in the Assam Secretariat, the said appointment was under Rule 16 of the Assam Secretariat Subordinate Rules, 1963. Subsequently, on 25.02.1992, the service of the petitioner was regularized.
4. It is the case of the petitioner that under the relevant statutes, there was no provision for appointment on adhoc-basis or even for regularization. A draft gradation list of the LDA was published on 23.08.2002 in which the petitioner was placed against Serial No. 429. Being aggrieved, the petitioner had submitted a representation for revision of the draft gradation list which was however rejected. Consequently, a final gradation list was published on 23.12.2002 wherein the petitioner was placed against Serial No. 418.
5. The said gradation list dated 23.12.2002 was the subject matter of challenge in WP(C)/4139/2003 in which this Court vide order dated 29.05.2012 disposed of the writ petition by directing the petitioner to make representation before the concerned authority. The petitioner has projected that the persons against Sl. Nos. 84 to 92, who were appointed by relaxation of the Rules as being retrenched employees of the Brahamputra Board were given the benefits of their initial period of appointments from 10.04.1990, which however was not given to the petitioner though he was appointed prior to the aforesaid incumbents. It is the further case of the petitioner that in the meantime, the services of nine incumbents, who were appointed in the similar manner and in the same year, were regularized.
6. As the grievance of the petitioner was yet to be redressed, he had filed another writ petition being WP(C)/3086/2015 praying for a direction to grant seniority, promotion and other consequential service benefits. The same was disposed of on 17.02.2016 by directing the Chief Secretary, Govt. of Assam to place the letter dated 02.02.2015 of the Personnel Department along with the letter dated 25.08.2015 of the Secretariat Administration Department and other connected documents before the Cabinet for its perusal and consideration/decision in its next meeting.
7. It is the case of the petitioner that while placing the relevant materials before the Cabinet, the letter dated 02.02.2015 of the Personnel Department was not placed. Subsequently, in the Cabinet in its meeting dated 27.12.2017 the matter was discussed followed by issuance of an order dated 14.02.2018 whereby the existing seniority of the petitioner which was fixed in the gradation list dated 23.12.2002 and maintain in the subsequent gradation list would continue. It is the case of the petitioner that the decision of the Cabinet was based upon irrelevant factors and the relevant factors were wholly overlooked. Accordingly, the present writ petition has been filed.
8. I have heard Shri K.N. Choudhu
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
