Mukul Saikia &
Ors. Vs. State of Assam & Ors. [2008] INSC 1971 (18 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6690 OF 2008 [Arising
out of S.L.P. (C) No.21315 of 2006] Mukul Saikia & Ors. ..... Appellants
Versus State of Assam & Ors. ..... Respondents
Lokeshwar Singh
Panta, J.
1.
Leave
granted.
2.
This
appeal is directed against the common judgment and order dated 15.09.2006
passed by a Division Bench of the 2 High Court of Gauhati, dismissing Writ
Appeal Nos. 471/2003 and 08/2005 filed by the appellants herein against the
common judgment and order dated 14.08.2003 of the learned Single Judge in WP
(C) No. 2026/2001, WP (C) No.2036/2001 and WP (C) No.4932/2001 whereby the
learned Single Judge has dismissed the said writ petitions.
3.
Briefly
stated the facts of the case are as follows:- The Assam Public Service
Commission (hereinafter referred to as "APSC") had issued an
advertisement dated 19.08.1997 for filling up 27 posts of Child Development
Project Officer (hereinafter referred to as "CDPOs"), pursuant
whereupon a selection process was held. Finally, a select list dated 17.07.2000
containing the names of 64 candidates far in excess of the notified vacancies
was prepared and published by the APSC. The names of the appellants who are 13
in number before this Court appeared in the select list below 27 persons who
were appointed on merit by the State Government.
4.
The
appellants filed two separate writ petitions before the High Court of Gauhati,
inter alia, challenging the Cabinet 3 Memorandum dated 16.06.2000 circulated
by the Commissioner and Secretary, Government of Assam, Social Welfare
Department under Rule 17 of the Assam Rules of Executive Business relating to
the regularization of 18 CDPOs/ Probation Officers who were appointed under
Regulation 3 (f) of the Assam Public Service Commission (Limitation of
Function) Regulation, 1951 (for short "Regulation 1951") and praying
for a direction to the State- respondent to appoint the appellants in the
vacant/newly created posts of CDPOs/ Probation Officers. The appellants also
challenged the policy decision taken by the State to regularize the services of
the private respondents herein, who were initially appointed temporarily under
Regulation 3 (f) of Regulation of 1951 and could not succeed in the selection
process conducted by the APSC. The appellants contended before the High Court
that giving benefit of regularization of service to the private respondents to
the posts of CDPOs was contrary to the recruitment rules and the action of the
State Government would amount to giving backdoor entry to the unsuccessful
candidates into the State Services.
5.
The
stand of the respondent-State before the High Court was that 27 advertised
vacant posts meant for direct recruitment quota, were filled up by the State
Government on merits out of the select list prepared by the APSC dated
17.07.2000. The select list having thus exhausted, the appellants, whose names
figured below the 27 selected candidates in the select list, therefore, could
not claim to be appointed in excess of the advertised vacancies of CDPOs; and
that if any future vacancies which arose after the publication of the
advertisement, were to be filled up out of the left out candidates of the select
list, the said appointment would amount to depriving other persons who, in the
meantime, would have become eligible for selection and appointment. It was also
submitted that as soon as the posts advertised were filled up or the validity
of the select list expired, whichever event was earlier in point of time, the
candidates whose names appeared in the select list could not thereafter claim
appointment as the select list got exhausted. It was stated that the appellants
have neither challenged the policy decision taken by the Government on the
basis of the Cabinet decision 5 nor the Notification issued pursuant thereto
by the State Government regularising the service of 18 CDPOs/ Probation
Officers. It was also stated that the decision to regularize 18 CDPOs, who were
initially appointed under Regulation 3 (f) of Regulation, 1951, was taken by
the State in view of the fact that they had already rendered more than four
years of service satisfactorily and their continuation in service was necessary
to implement the time-bound scheme of the Government of India for which ICDS
Project was created in the State of Assam. It was categorically stated that 18
CDPOs were regularized by the State Government to the posts meant for
promotees.
6.
The
stand of the private respondents-appointees was that 27 advertised vacancies
were filled up by the State Government on the basis of merit list prepared by
the APSC on 17.07.2000 and as soon as those vacancies were filled up against
the direct quota, the select list got exhausted. They stated that the
appellants could not, as a matter of right, claim that they shall be appointed
against the unadvertised future vacancies, merely because their names are found
in the 6 select list prepared by APSC. The respondents-appointees submitted
that since they were not regularized against the posts advertised by the APSC
by means of advertisement dated 19.08.1997, the appellants could not claim that
they should be appointed against those posts pursuant to their selection when
18 vacancies in the cadre of CDPOs were meant to be filled up by way of
promotion. They submitted that the decision to regularize their services was
taken by the State Government by giving relaxation as contemplated under Clause
11 of the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994
(for short "the Service Order, 1994) and the said decision in fact has not
been challenged by the appellants/original writ petitioners either in the writ
petitions or in the writ appeals filed by them before the High Court.
7.
The
learned Single Judge of the High Court dismissed the writ petitions of the
appellants, inter alia, holding that no posts beyond 27 advertised vacancies
could be filled up from the select list and the appellants had challenged only
the Cabinet Memorandum dated 16.06.2000 without challenging 7 the Cabinet
decision taken on 13.10.2000 followed by the Notification dated 16.11.2000
issued by the State Government whereby the services of the private respondents
came to be regularized.
8.
Being
aggrieved thereby, the appellants filed the above- said two writ appeals (being
WP(C) 471/2003 and WP (C) 08/2005) which have been dismissed by the Division
Bench by common judgment and order dated 15.09.2006. Now, all the appellants
have preferred this single appeal challenging the impugned order of the High
Court.
9.
On
notice issued by this Court, Shri Joydeep Shukla, Extra Assistant Commissioner,
Government of Assam, has filed affidavit stating, inter alia, that the private
respondents have rendered highly satisfactory and dedicated service in
implementation of time-bound Integrated Child Development Scheme Projects
(ICDS) ever since they joined the services and their retention in service would
also be highly beneficial to the interest of the Project as well as the public
at large. It is stated that at the relevant point of time, there were 18 vacant
posts of CDPOs in the promotional category and another 10 8 additional
vacancies meant for the promotees had also arisen thereby making a total number
of 28 vacancies meant to be filled up by promoting departmental candidates as
per the requirement of Service Order, 1994. It is stated that the private
respondents submitted representations to the authorities praying for
regularization of their services which was duly considered by the Department of
Social Welfare, Government of Assam and taking into consideration the interest
of ICDS Projects, it was decided that regular absorption of the private
respondents against the promotional posts of CDPOs was in the best interest of
the Projects which are funded by the Central Government in the State for the
welfare of the general public. It is stated that a Cabinet Memorandum dated
16.06.2000 was circulated under Rule 17 of the Assam Rules of Executive
Business, after obtaining the approval of the Personnel (B) Department of the
State of Assam for regularizing the services of the private respondents in the
exceptional circumstances of the matter against 28 available vacancies meant
for promotees by invoking power of Rule 11 of the Service Order, 1994. On the
basis of the 9 Cabinet Memorandum dated 16.06.2000, a Cabinet decision was
taken on 13.10.2000 granting approval of regularization of services of the
respondents. The respondent-State also submitted that the appellants have not challenged
the one- time policy decision taken by the Cabinet nor the Notification dated
16.11.2000 issued pursuant to the Cabinet decision regularizing the services of
the private respondents have been challenged by the appellants before the
learned Single Judge or the Division Bench of the High Court and the High Court
has rightly dismissed the writ petition and appeals of the appellants, inter
alia, on the grounds that the appellants have no enforceable right to get
appointments to the posts of CDPOs against promotional quota merely because
their names had figured in the select list prepared by the APSC against the
direct quota.
10.
The
private respondents, in their counter affidavit filed before this Court have
stated that total number of notified vacancies of CDPOs were only 27, yet a
select list dated 17.07.2000 was published by the APSC wherein as many as 64
candidates were recommended. In order of merit, 27 10 selectees were appointed
out of whom 17 were appointed in the general quota and 10 from the reserved
category as per the rules. The names of the appellants appeared below 27
candidates who have been appointed; therefore, the appellants have no legal
right to claim appointment against the excess quota of the advertised
vacancies. The Secretary to the Government of Assam, Personnel (B) Department
by circular bearing No. 98/4 dated 18.12.1998 had requested the APSC to
recommend the candidates equal to the number of vacancies notified in the
advertisement. The contesting respondents stated that in the year 1996-97,
there were total number of 45 vacant posts of CDPOs and allied cadre in the
Department of Social Welfare including the backlog vacancies and as per Service
Order, 1994, 60 per cent of the vacancies are required to be filled up by way
of direct recruitment and the remaining 40 per cent by means of promotion of
suitable departmental candidates. Accordingly, only 27 (60 per cent) vacancies
of CDPOs were available at the time of issuing the advertisement notice dated
19.08.1997 for which selection was made by the APSC and on the basis of merit,
27 vacancies 11 were filled up by the State Government after complying with
the provisions of the rules including the reservation in favour of
SCs/STs/OBCs. The remaining 18 vacancies being 40 per cent of total 45
vacancies were to be filled up by eligible departmental candidates. In addition
thereto, 10 more vacancies were also available to be filled up by way of
promotion thereby making 28 total number of vacancies. The State Government
regularized the services of private respondents against 18 vacancies in the
cadre of CDPOs which were meant to be filled up by way of promotion from
departmental candidates and as such, the appellants who had applied against
direct quota have no legitimate right to be selected and appointed against
promotees quota.
11.
The
private respondents also submitted that they have been regularized on the basis
of the Cabinet decision dated 13.10.2000 and Notification dated 16.11.2000 in
deference to Rule 11 of the Service Order, 1994. They submitted that there was
an urgent need on the part of the Department to fill up all the vacant posts
for the purpose of proper and effective implementation of the time-bound
Projects of the State. It is 12 stated that, in view of the long services
rendered by the private respondents and having due regard to their past
satisfactory performance and also the service record, they have been
regularized against those promotional vacancies, purely in the interest of the
public. It is also submitted that subsequently by Notification No. 59
PSC/DR-41/1/2005-06 dated 20.04.2006, the APSC has also conveyed its approval
to the regularization of the respondents' services. They have stated that the
procedure for regularization of the respondents' services was a one-time measure
adopted by the State Government in the special circumstances and their
regularization has not, in any manner, caused any prejudice to the interest of
the appellants. The respondents also stated that the appellants have not
challenged the Cabinet Decision dated 13.10.2000 and subsequent Notification
dated 16.11.2000 issued by the State Government in the writ petitions filed by
them nor they have challenged the same before the Division Bench of the High
Court. In that view of the matter, the private respondents submitted that the
13 appellants had no locus standi to file the writ petitions under Article 226
of the Constitution of India.
12.
We
have heard learned counsel for the parties. Mr. A.K. Ganguly, learned senior
counsel appearing for the appellants, submitted that the private respondents
were appointed in the year 1995-96 only for four months on ad hoc basis in
terms of Regulation 3(f) of Regulation 1951, or till regular appointments in
accordance with the preference and recommendations were made by the APSC under
the Service Order, 1994, as such their continuance on ad hoc basis was de hors
the rules and they are illegally regularized on 16.11.2000 after they have put
in barely four years of service.
He submitted that in
identical cases, namely, Pranjit Kumar Das v. State of Assam & Ors. (1995)
1 GLR 229 and Dr. Anoop Kumar Das v. Dr. Sanjib Kakati & Ors. (2000) 2 GLR
479, the Gauhati High Court has held that any appointment under Regulation 3
(f) of Regulation 1951 is ad hoc in nature and de hors the rules, and
therefore, could not be sustained. He submitted that the Cabinet decision in
regard to the regularization of the private respondents was in 14 disregard to
the binding law as laid down in the above cited decisions. He submitted that
the appellants who were duly selected by the APSC could have been appointed
against the vacancies which subsequently arose in excess of 27 advertised
posts. In support of this submission, reliance is placed on decisions in
Virender Singh Hooda v. State of Haryana and Anr. [1999 (3) SCC 696], Suvidya
Yadav & Ors. v. State of Haryana & Ors. [(2002) 10 SCC 299] and Sandeep
Singh v. State of Haryana & Anr. [2002 (10) SCC 549]. Lastly, it was
contended that the regularization of the service of private respondents to the
posts of CDPOs after they remained unsuccessful in the test held by the APSC is
in violation of Articles 14 and 16 of the Constitution of India as well as in
derogation of the law laid down by a Constitution Bench of this Court in
Secretary, State of Karnataka and Ors v. Uma Devi & Ors. [(2006) 4 SCC 1].
13.
While
refuting the submissions of the appellants, Mr. P.P. Rao, learned senior
counsel for the State, on the other hand, submitted that the posts in which the
private respondents were regularized were promotional posts to be 15 filled up
by promotion from amongst the persons who have rendered 10 years' continuous
service in the feeder cadre and the appellants cannot have any claim to be
considered for appointment against promotional quota. He submitted that all the
27 advertised posts have been filled up on the basis of the select list
prepared by the APSC and the appellants cannot have any right to claim
appointment against the anticipated vacancies which were never advertised and
they have a right to be considered along with other eligible candidates as and
when posts are advertised for direct recruitment. He then contended that when
the regularization of the private respondents took place in the year 2000, the
law declared by this Court in State of Haryana v. Piara Singh [(1992) 4 SCC
118], was holding the field, which required the State Government to regularize
the services of ad hoc employees who have put in a few years of continuous
service. He submitted that the law laid down by a Constitution Bench of this
Court in Secretary, State of Karnataka's case (supra) relied upon by the
appellants in support of their case will be of no help and assistance to the
appellants as in the said 16 decision, this Court has clarified that the
regularization, if any, already made, but not sub judice, need not be re-opened
on the basis of the judgment.
14.
Mr.
P.S. Patwalia, learned senior counsel, appearing on behalf of the private
respondents in addition to the submission of Mr. P.P. Rao, learned senior
counsel, submitted that the appellants have no right that can be enforced in
the present proceedings, particularly, in view of the fact that admittedly
their names appeared in the select list dated 17.07.2000 below the persons who
have been appointed against the 27 vacancies. He submitted that the Rules
applicable to the present case do not permit inclusion of more number of
candidates in the select list in excess of the notified vacancies. In support
of this submission, reference is made to the decisions of this Court in Madan
Lal v. State of J & K & Ors. [(1995) 3 SCC 486], Shri Kant Tripathy
& Ors. v. State of U.P. & Ors. [(2001) 10 SCC 237], State of U.P. &
Ors. v. Raj Kumar Sharma & Ors. [(2006) 3 SCC 330] and Prem Singh v.
Haryana State Electricity Board [1996 (4) SCC 319]. He submitted that the
appellants have no locus 17 standi to file the writ petition under Article 226
of the Constitution of India before the High Court as the private respondents
would stand on a completely different footing as compared to the appellants. It
was also submitted that the decision to regularize the services of the private
respondents was taken by the Cabinet in its meeting dated 13.10.2000 pursuant
whereupon separate Notification dated 16.11.2000 was issued by the State
Government regularizing their services in deference to Rule 11 of Service
Order, 1994 by relaxing the rules. It was then contended that the Cabinet
decision as well as the subsequent Notification of the State Government have
not been challenged in the writ proceedings, the High Court has rightly
dismissed the writ petition and the appeals of the appellants.
15.
At
the outset it should be noticed that the select list prepared by APSC could be
used to fill the notified vacancies and not future vacancies. If the
requisition and advertisement was only for 27 posts, the State cannot appoint
more than the number of posts advertised, even though APSC had prepared a
select list of 64 candidates. The selection list got exhausted 18 when all the
27 posts were filled. Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to any vacancy in regard to which
selection was not held. The fact that evidently and admittedly the names of the
appellants appeared in the select list dated 17.07.2000 below the persons who
have been appointed on merit against the said 27 vacancies, and as such they
could not have been appointed in excess of the number of posts advertised as
the currency of select list had expired as soon as the number of posts
advertised are filled up, therefore, appointments beyond the number of posts
advertised would amount to filling up future vacancies meant for direct
candidates in violation of quota rules. Therefore, the appellants are not
entitled to claim any relief for themselves. The question that remains for
consideration is whether there is any ground for challenging the regularization
of the private respondents.
16.
At
the time of issuing the advertisement dated 19.08.1997, the total number of
vacancies available in the cadre of CDPOs in the year 1996-97 was 45 out of
which 27 vacancies, being 60 per cent of the total number of vacancies 19 were
available for being filled up by way of direct recruitment as per Service
Order, 1994. The Joint Secretary, Personnel (B) Department, circulated the
Cabinet Memorandum under Rule 17 of the Assam Rules of Executive Business. It
was made clear in the said Cabinet Memorandum that the private respondents
could not pass the APSC written examination, but they have gathered sufficient
experience under Social Welfare Department and the performance of the officers
was also found satisfactory. It was stated that their services were not
terminated and they were allowed to continue in their respective posts and in
the interest of the public service, the State Government had decided to
regularize their services and to absorb them under Social Welfare Department
against posts held by them. The Commissioner and Secretary to the Government of
Assam, Social Welfare Department on 16.06.2000, concurring with the proposal of
Joint Secretary, Personnel (B) Department, as a special case sought the
approval of the Cabinet for regularization of appointment of 18
CDPOs/Superintendents/ Home Probation Officers who were appointed in terms of
Regulation 3 (f) of APSC and in 20 accordance with the method as provided in
Clause 5(c) by invoking discretion of relaxation under Clause 11 of Service
Order, 1994. The Cabinet in the meeting held on 13.10.2000, decided to
regularize the services of the private respondents in the special circumstances
that they have been working against the posts of CDPOs for the last more than
four years and their performance was found satisfactory and their continuity in
the existing posts was also needed for effective implementation of the
time-bound scheme of the Government of India for which ICDS Projects were
provided in the State of Assam. Pursuant to the Cabinet decision, Notification
No. SWD 34/99/104 dated 16.11.2000 was issued by the Commissioner and Secretary
to the Government of Assam, Social Welfare Department by which the services of
the appellants were ordered to be regularized with effect from the date of
their joining the Social Welfare Department. Indisputably, the appellants have
challenged only the Cabinet Memorandum dated 16.06.2000 in the writ petition
before the High Court while the Cabinet decision dated 13.10.2000 was taken on
the basis of the said Memorandum and the subsequent 21 Notification
regularizing the services of the appellants issued by the State Government on
16.11.2000 had remained unchallenged. The Cabinet took the decision dated
13.10.2000 in exercise of the powers under Rule 17 of the Assam Executive
Business Rules which was subsequently notified by the State Government on
16.11.2000 as a one-time measure to regularize the services of the private
respondents.
It appears that the
appellants were not serious in regard to challenging the regularization of the
private respondents but were only interested in pursuing their own claim for
appointment as CDPOs against the vacancies reserved for direct quota. In the
circumstances and the facts of the present case, the appellant cannot maintain
any claim whatsoever in respect of the 18 vacancies of CDPOs against which the
private respondents were regularized. The appellants and the private
respondents stand on a completely different footing. The services of the
private respondents have been regularized against the vacancies meant for
promotees and the source of legal right of the appellants and the private
respondents being from two different and distinct sources, 22 their relative
rights cannot be compared with each other and, therefore, there cannot be any
violation of fundamental rights under Article 14 of the Constitution of India
as a consequence of the regularization of the services of the respondents.
17.
We
have gone through the Service Order, 1994 issued by the Government of Assam,
Social Welfare Department dated 01.08.1994. Clause 3 of the Service Order
classifies the class and cadre of the services. The post of Child Development
Project Officer is in Class II cadre. Clause 5 thereof envisages method of
recruitment and promotion. The relevant portion of Clause 5 reads as under:-
"5 Recruitment to the Cadre of the service shall be made in the following
manners:- (a) xxx xxx xxx (b) xxx xxx xxx (c) In the order of District SWO/
CDPO/ Special Home/ Principal Balbhawan VTRC/ Probationary Officer/ PWO/
Liaison Officer/ Vice Principal, Jorhat, Blind Institute. The posts shall be
filled up by direct recruitment through the Commission as per norms fixed
jointly with Ministry of Welfare, Government of India by the Social Welfare
Department."
23 Clause 11 of the
Service Order deals with relaxation. It reads:- "Where the Governor is
satisfied that the operation of any of the provisions of these orders has
caused undue hardship in any particular case, he may dispense with or relax the
requirement of that provision to such extent and subject to such condition as
he may consider necessary for dealing with the case in a just and equitable manner.
Provided that the
case of any Government servant shall not be dealt with in any manner, less
favourable to him than that provided in these orders."
18.
Annexure-1
attached to Service Order, 1994 contains class of posts, cadre of posts, cadre
strength, scale of pay and qualifications & experience for the service. At
serial No. 3, in Class II the total cadre strength of CDPOs has been shown as
68 in the pay scale of Rs.1635-3950/-. Column 6 of Annexure I prescribes that
40 per cent of the posts of CDPOs have to be filled up by promotion from
amongst the persons who have rendered 10 years of continuous service in the
cadre of 24 ACDPOs/Assistant Superintendent Homes and Allied Cadre and 60 per
cent by direct recruitment. The private respondents, no doubt, were appointed
on ad hoc basis and admittedly they have not completed 10 years of continuous
service in the cadre of ACDPOs, but the State of Assam, with the approval of
the Cabinet, decided to regularize the services of the appellants as a special
case by giving relaxation under para 11 of the Service Order. Therefore, the
decision of the Cabinet pursuant whereof the State Government issued
Notification cannot be held to be arbitrary and irrational. The appellants fall
in different categories and they have no enforceable right to challenge the
regularization of the private respondents who have been regularized against the
vacancies meant for promotional quota. In their writ petition, they have prayed
for their appointment because their names were included in the select list by
the APSC against the direct quota. The State Government appointed 27 persons in
order of merits out of the select list prepared by the APSC, as such the
appellants being selectees cannot claim appointment as a matter of right in
excess to the advertised vacancies. It is 25 well settled law that filling up
of the vacancies over and above the number of vacancies advertised would be
violative of Articles 14 and 16 of the Constitution of India. Mere inclusion of
the appellants in the select list of the direct appointees does not confer any
right on them to be appointed against the vacancies reserved for promotees. The
decision of the Cabinet and the Notification issued by the State Government
pursuant thereto in our view, are both in consonance and in conformity with
Clause 11 of the Service Order to save the services of the private respondents
from being thrown out of the job which otherwise would cause extreme hardship
and injury to them and to the members of their families.
19.
In
the facts and circumstances of the present case, we find that the High Court
has rightly held that the appellants do not have any enforceable right of being
appointed to the post of CDPOs against the quota meant for promotees and more
particularly against the decision of the State Government regularizing the
services of the private respondents. The Cabinet decision was taken as a
one-time measure having regard to the special circumstances of the 26 case,
the satisfactory performance rendered by the private respondents and their past
service record which was found to be unblemished by the Government as well as
in the exigencies of the Scheme of the Central Government which were to be
operationalised in a time-bound manner and also keeping public interest in
mind. In these circumstances, the High Court is right in holding that the
appellants have no locus standi to challenge the regulation of private
respondents against the vacancies meant for the promotional quota the
appellants who appeared in the interview held by APSC as direct candidates
could not have any grievance against their regularization against 40 per cent
promotional posts.
20.
In
the backdrop of the above stated facts and the relevant provisions of rules, we
do not find any error or infirmity in the impugned judgment and order passed by
the High Court which would warrant any interference by this Court in this
appeal. None of the contentions raised by the appellants merits acceptance. The
law laid down by the Constitution Bench of this Court in Uma Devi's case
(supra) in the present set of facts and circumstances will be of no help 27
and assistance to the appellants. The decision of the Gauhati High Court in the
cases cited at Bar by the learned senior counsel for the appellants will turn
on the facts and circumstances of the said cases and the ratio laid down
therein cannot be made binding on the peculiar facts of the present case.
21.
For
the above-stated reasons, the appeal fails and it is accordingly, dismissed.
In the facts and
circumstances, the parties are left to bear their own costs.
........................................J.
(R. V. Raveendran) .
.......................................J.
(Lokeshwar Singh Panta)
New
Delhi,
November
18, 2008.
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