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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)
NANI TAGIA, J.
Tanyang Sai Skilled Contingent Typist, DRDA Ziro – Appellant
Versus
The Union of India and Ors. – Respondents
WP(C) 350 of 2021
Decided on : 02-08-2023
Constitution of India,1950 - Article 14 & 16 – Service Law - Appointed as Skilled Contingent Typist – Seniority – Respondent authorities in the instant case is found to be required to first determine the manner and method by which post of LDC is to be filled up in the Department along with the minimum eligibility criteria required for the post of LDC in DRDA. Para 15
Finding of Court : In absence of any norms for filling uppost of LDC in DRDA, as discussed hereinabove, manner in which respondent no. 7 has been appointed as LDC in Department by impugned order dated, issued by Deputy Commissioner-cum-CEO, District Rural Development Agency, Lower District,cannot receive judicial approval from this Court - As appointment of respondent no. 7 as LDC has been set aside on grounds stated hereinabove, second prayer of petitioner for regularisation of her service from date respondent no. 7 was appointed as LDC, can also be not granted by this Court as there exists no Rules or Guidelines to indicate that petitioner is eligible and qualified to be appointed as LDC in DRDA for want of Recruitment Rules or any Guidelines to that effect.
Result : Writ petition stands disposed of
JUDGMENT :
Heard Mr. T. Omo, learned counsel for the petitioner. Also heard Mr. N. Sora, learned counsel for the respondent no.1; Mr. I. Riram, learned Additional Senior Government Advocate for the respondent no.2; Mr. B. Picha, learned Standing counsel for the Rural Development Department, representing the respondents no. 3, 4, 5 & 6 and Mr. S. K. Deori, learned counsel for the respondent no. 7.
2. This writ petition is directed against the order, dated 1st September, 2021, issued by the Deputy Commissioner-cum-CEO, District Rural Development Agency, Lower Subansiri District, Ziro, vide Memo No. DRDA/ESTT/2000/1141-44, whereby, the respondent no. 7 has been appointed as Lower Division Clerk (LDC)
3. The facts leading to filing of the present writ petition, briefly stated, are as follows:
The petitioner was appointed as Skilled Contingent Typist by order dated 28th July 2009, issued by the Deputy Commissioner-cum-CEO, District Rural Development Agency, Lower Subansiri District, Ziro, vide Memo No. DRDA/ESTD-27/94, for a period of 6 (six) months, w.e.f. date of her joining. The service of the petitioner as such was extended thereafter, from time to time and the petitioner is still continuing as such in the Department. The respondent no. 7 on the other hand was appointed on 24.11.2016 as Technical Assistant (MIS) on contract basis for a period of one year from the date of joining, vide order dated 24th November 2016, issued by the Deputy Commissioner-cum-DPC, District Rural Development Agency, Lower Subansiri District, Ziro, vide Memo No. DRDA/ESTT/MGNREGA/15/2015-16 and the respondent no. 7 is also stated to be continuing as such in the Department.
The petitioner, therefore, contends that, the petitioner being senior to the respondent no. 7 in the Department, the petitioner should have been appointed as LDC in place of the respondent no. 7. Since, the respondent no. 7 has been appointed as LDC superseding the seniority position of the petitioner in the Department vis-à-vis the respondent no. 7, the petitioner, has filed this writ petition for setting aside of the impugned order of appointment dated 1st September, 2021, issued by the Deputy Commissioner-cum-CEO, District Rural Development Agency, Lower Subansiri District, Ziro, vide Memo No. DRDA/ESTT/2000/1141-44, whereby, the respondent no. 7 has been appointed as LDC and with another prayer that the petitioner, should also be regularised as LDC from the date, the respondent no. 7 was appointed as LDC by the appointment order, dated 1st September, 2021.
4. The respondents no. 3, 4, 5 & 6 have filed the counter-affidavit, wherein, it has been stated that the petitioner has no right to be appointed as LDC from the post of Skilled Contingent Typist. Appointment to the post of LDC on temporary basis from either Skilled Contingent Staff, which the petitioner is, or Technical Assistant (MIS), which the respondent no. 7 is, is made in the wisdom of the employer. It has been further stated that the seniority is not the only criteria, but it is the employer, who has to decide which of the employee is suitable for the post on temporary basis. It has been further stated that both the petitioner as well as the respondent no. 7 had applied for the post of LDC and on consideration of the applications submitted by both the petitioner as well as respondent no. 7, the respondent no. 7 has been appointed on being found to be more efficient, suitable and productive.
5. The respondent no. 7 in the counter-affidavit filed, has submitted that as one post of LDC was lying vacant, the respondent no. 7 had applied for the said post and as he was found to be qualified for appointment in the post of LDC, the respondent authorities have appointed the respondent no. 7 as LDC.
6. Though the pleaded case of the petitioner in the writ petition is for setting aside of the impugned order of appointment of the respondent no. 7 as LDC, on the ground that the appointment of the respondent no. 7 as LDC in the Department h
Point of Law : There is neither any Rules nor any Guidelines bestowing such discretion upon the employer to fill the post of LDC in the DRDA as per the wisdom of the employer.
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