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Judgment
Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. F.U. Borbhuiya, learned counsel for the petitioners. Also heard Mr. G.
Bordoloi, learned Govt. Advocate for respondent nos.1 and 5, Mr. B. Gogoi, learned standing counsel for the Finance Department and Mr. R.K.D.
Choudhury along with Mr. R. Dhar, learned standing counsel for the WPT&BC Department, respondent nos. 3and 4.
2) In the present case is hand, the issue regarding non-regularization of the petitioners to the post of driver in the Assam Tribal Development Authority
(respondent no.3) (hereinafter referred to as ‘ATDA’ for short) is involved. Therefore, as the case is ready as regards service and the
respondent nos. 3 and 4 have filed their affidavit-in-opposition, at the insistence of the learned counsel for all sides, the matter has been heard in the
‘admission’ stage.
3) The grievance of the three petitioners in WP(C) 956/2016 and the sole petitioners in WP(C) 1216/2016 is that WPT & BC Department had
arbitrarily rejected the proposals dated 14.07.1994, 05.04.2011 and 20.04.2015 submitted by the ATDA for creation of posts of driver to accommodate
the petitioners by regularising their services. In connection with both the said writ petitions, a common order dated 03.11.2017 was passedby this
Court. The relevant part of the said order is quoted below:-
“In view of such provisions of Section 12 of the Act, the reasons stated in order dated 21.12.2015 that the posts of Driver had not been
approved is inadequate to reject the claim of the petitioners for regularization of their services. In view of above, it is directed that the
WP(T) & BC Department shall take a decision as to whether the decision of the authority taken u/s 12 requiring the four posts of driver in
to be approved or not. In doing so, the Government in the WP(T) & BC Department shall give its own reason either accepting or rejecting
the case for approval. If the WP(T) & BC Department is of the view that the concurrence of the Finance Department or any other
department is required to be obtained, the same being an inter-departmental requirement for a correspondence, the Department shall do the
needful to arrive at its decision.
List the matter again on 05.01.2018 to enable the WP(T) & BC Department to take the appropriate decision.â€
4) Pursuant to the aforesaid order, the WPT & BC Department by a speaking order bearing No.TAB/BC/224/2011/219 dated 03.01.2018, rejected
the proposal for regularization on the ground that the appointments were sought to be made in the non-sanctioned and non-existing post and without
prior concurrence or approval of the State Govt. The three petitioners in W.P.(C) 956/2016 and the sole petitioner in W.P.(C) 1216/2016 have now
jointly filed WP(C) 2321/2018 in order to assail the herein before referred order dated 03.01.2018.
5) The learned senior counsel for the petitioners has submitted that in the present case in hand, previously there was no vehicle allotted to the ATDA.
However, subsequently, the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA.
Therefore, the petitioners were engaged in service as drivers. It is submitted that from time to time, communications were exchanged for sanctioning
the creation of the posts of drivers and to regularise the service of the petitioners and in this regard, reference is made to communications dated
14.07.1994, 30.01.2001, 26.06.2001, 26.06.2002, 03.06.2008, 08.01.2013 and 08.04.2015. It is submitted that in this case, instead of creating the posts
of drivers, the ATDA had extracted service from the petitioners. Accordingly, by placing strong reliance on the case of Nihal Singh Vs. State of
Punjab & Ors., (2013) 14 SCC 65, it has been submitted that as the petitioners are rendering service, this is a fit case for issuing a direction to the
respondents to regularise the service of the petitioners with retrospective effect by providing ex post facto sanction of the posts of drivers in the
establishment of the respondent no.3, i.e. ATDA in terms of communications dated 14.07.1994, 30.01.2001, 26.06.2001, 26.06.2002, 03.06.2008,
08.01.2013 and 08.04.2015. The learned senior counsel for the petitioners has further submitted that the petitioners are also entitled to monthly salary
from the month of December, 2017 onwards till date, after taking into account the due increments along with other financial benefits.
6) While the learned State counsel appearing for the respondent no.1 and the learned standing counsel for the respondent no. 2 have opposed this
application by submitting that the Government had not accorded sanction for creation of the posts of drivers, as such, the Government cannot be
burdened with the liability to pay monthly salary to the petitioners. The learned departmental standing counsel appearing for respondent nos. 3 and 4
has referred to the affidavit-in-opposition filed by the respondent nos. 3 and 4 and he had made his submissions thereby supporting the claim of the
petitioners. It is submitted that the respondent nos. 3 and 4 have repeatedly send proposals before the appropriate and competent authority of the State
for according sanction for creation of posts of drivers and to regularise the service of the petitioners.
7) The core issue for consideration of the Court is whether the petitioners, who claim to be initially appointed by respondent no.4 in the pay-scale of
Rs.420/- to 750/- per month, are entitled for a direction from the Court upon the respondents to regularise the service of the petitioners with
consequential benefits like pension, etc.
8) It is seen that in Section 12 of the Assam Tribal Development Authority Act, 1983 it is provided as follows:-
“12. The Authority may have such staff as may be decided by the Authority with the approval of the Government.â€
9) Therefore, there is no doubt that subject to approval of the State Government, the respondent no.3 had the power and authority to have such staff
as may be decided by the authority. Therefore, according to the opinion of the Court, the provisions of Section 12 of the Assam Tribal Development
Authority Act, 1983 envisages prior approval of the Government regarding creation of posts or appointment of staff before appointments are actually
made. The Court is unable to accept that the intent and purport of Section 12 is to enable the respondent nos. 3 and 4 to first make appointment and
then to seek post facto approval from the Government. On a perusal of the documents annexed to the writ petition, there is absence of materials to
show that the State Government had accorded sanction for creation of the post of ‘driver’ in the establishment of the respondent no.3, i.e.
ATDA. In the herein before referred order no. TAD/BC/224/ 2011/219 dated 03.01.2018, issued by Secretary to the Govt. of Assam, WPT & BC
Department, it has been specifically mentioned that the ATDA had appointed the following petitioners in W.P.(C) 2321/18, namely, (i) Rajkumar
Kachari (petitioner no.1), Biren Rabha (petitioner no.2), Ram Charan Rabha (petitioner no.3), and Md. Fakaruddin (alias Fakar Uddin Ahmed alias
Md. Fakaruddin Ahmed) (petitioner no. 4) over and above the posts created for the office of the ATDA. There is no material on record to controvert
the said position.
10) Moreover, from the documents annexed to the writ petition, it is seen that there is nothing on record to show that the respondent nos. 3 and 4 had
conducted any recruitment drive through transparent pubic process, inviting applications from the public for appointment to the posts of driver. Hence,
the only conclusion that can be drawn by the Court is that the petitioners were not regularly selected and appointed to the posts of driver in the
ATDA. Nonetheless, there is no dispute at the Bar that the petitioners have been rendering their services in ATDA as driver since the date of their
respective appointment till date and that the ATDA had extended to the petitioners the benefit of regular pay-scale. Moreover, as it is seen that the
petitioners have not been selected and appointed in sanctioned and vacant posts, the petitioners cannot be said to have the status of permanent
employee in the establishment of respondent no.3 i.e. ATDA. Thus, the petitioners may be said to have temporary, casual or contractual employment
for all intents and purpose, but not permanent employment in the absence of appointment to a sanctioned and vacant posts of driver.
11) In case of Nihal Singh (supra), the appellants therein were selected and appointed in exercise of power under Section 17 of the Police Act, 1861
as such, the appointments were held to be in consonance with the statutory provisions because the decision to resort to the procedure adopted was
taken at the highest level of the State by conscious choice. The appointments were made pursuant to a sanctioned selection process. The
appointments were found to be necessitated owing to need to obtain services of persons who had the experience and training in handling extraordinary
situation of dealing with armed miscreants. After selection, the selected persons were given training in use of arms. It is further seen that on
consideration that in the said case, the financial implication was not on the State but creation of new posts was found to create financial burden on
various banks who were utilizing services of the Special Police Officers, and under those circumstances the Supreme Court of India had issued
direction to the State of Punjab to regularise the service of the appellants by creating necessary posts and it was ordered that pursuant to
regularisation, the appellants would be entitled to all the benefits of services attached to the posts which are similar in nature already in cadre of the
police service of the State.
12) Fact situation similar to the case of Nihal Singh (supra), is not found to exist in the present case in hand. In this case, there was no selection
process, as such, the petitioners appear to be chosen arbitrarily in exclusion to other eligible persons. The appointment was not sanctioned by law as
no post of driver was sanctioned and created pursuant to the orders of the Government. In the absence of sanctioned and retained posts, the Court is
of the considered opinion that the State Government cannot be compelled to absorb the petitioners into the service of the State by paying salary and
other emoluments. Thus, the ratio of the case of Nihal Singh (supra), is not found to help the petitioners in any manner. Accordingly, the order no.
TAD/BC/224/2011/219 dated 03.01.2018, impugned in W.P.(C) 2321/2018 does not warrant any interference by the Court.
13) On a query by the Court, it has been informed that the respondent no.3 operates on the basis of grants provided by the State Government, and that
such grant is inclusive of money against salary payable to employees working in specific sanctioned and retained posts. Thus, when the Government
has not created posts of drivers for the establishment of ATDA, if any order is passed for regularising the services of the petitioners, there would be
additional financial implication on the State Government.
14) In light of observations made in paragraph 47 of the case of Secretary, State of Karnataka Vs. Umadevi & Ors., (2006) 4 SCC 1 [also referred to
as Umadevi (3)], it can be culled out that when a person enters a temporary employment or gets engagement as a contractual casual worker and the
engagement is not based on a proper selection as recognized by the relevant Rules or procedure, he is aware of the consequences of the appointment
being temporary, casual or contractual in nature and that such a person cannot invoke the theory of legitimate expectation for being confirmed in the
post when an appointment to the post could be made only by following a proper procedure for selection. In light of the law laid down by the Supreme
Court of India in the case of Umadevi (3), the Court is constrained to hold that the petitioners are not found entitled to any order from the Court for
regularisation of their respective services.
15) Accordingly, as the petitioners have rendered their services to the respondent no.3 authority since their respective dates of joining as drivers, as
already indicated herein before, by treating the petitioners as temporary, casual or contractual employment for the purpose of this order, this appears
to be a fit case to apply the principles laid down by the Division Bench of this Court in the case of State of Assam Vs. Upen Das, (2017) 5 NEJ 553,
this Court had observed as follows in para-22 and 23:-
“22. It is, however, heartening to learn that the State Government has agreed not to terminate the Muster Roll, Work Charged and
similarly placed employees working since last more than 10 years (not in sanctioned post) till their normal retirement, except on disciplinary
ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and
Death Insurance Scheme, which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State
Government taken as welfare measures for the betterment and security of the employees, in question. We, accordingly, direct the State
Government to implement the measures without further delay. Besides this, we, in the light of decision of the Supreme Court in State of
Punjab v. Jagjit Singh, (2017) 1 SCC 148, also direct the State Government to pay minimum of the pay scale to Muster Roll workers, Work
Charged workers and similarly placed employees working since last more than 10 years (not in sanctioned post) with effect from 1.8.2017.
For these reasons, we are of the view that in the fact situation of the case, Muster Roll workers, Work Charged workers and Casual
workers are not entitled for regularization of their services with consequential benefits, such as, pension etc. We, accordingly, subject to
our direction in paragraph 22 of the judgment, allow the appeal and set aside the impugned judgment and order dated 20.12.2013 passed
by the learned Single Judge.â€
16) In the present case in hand, the petitioners are not found entitled to regularization of their services with consequential benefits such as pension, etc.
Accordingly the prayer for regularization is refused. However, in order to ensure welfare measures to the petitioners, who have rendered long years
of service to the respondent no.3 i.e. Assam Tribal Development Authority, in a non- sanctioned post, the Court by following the decision rendered in
the herein before referred case of Upen Das (supra), is inclined to direct the State Government to implement the welfare schemes by enlisting the
petitioners in Health and Accidental and Death Insurance Scheme. Besides, in the present case in hand. Moreover, as the petitioners are presently
being paid their salary as per their pay-scale, and considering that that the letter of appointment of the (i) petitioner no.1 was issued on 27.09.1985
(stated to have already been superannuated on 30.11.2020), (ii) petitioner no.2 was issued on 12.02.1986, (iii) petitioner no.3 was issued on 27.02.1989,
and (iv) petitioner no.4 was issued on 05.01.1996, and since then they have rendered service in a non- sanctioned post, the Assam Tribal Development
Authority (respondent no.3), being the authority functioning under the Welfare of Plain Tribes and Backward Classes Department, are directed to
continue to pay to the petitioners their salary as per their last pay scale. In the event the claim made in W.P. (C) 2321/18, that the petitioners have not
been paid their salary since the month of December, 2017 is true, the respondents shall release the arrear salary as per last pay scale drawn within a
period of 4 (four) months from the date of service of a certified copy of this order upon the respondent no.4. The current salary shall, however, be
paid as and when due.
17) Before parting with the records, it is made clear, that this order shall not stand as an impediment for the respondents to take lawful steps to
regularize the services of the petitioners, if so permitted in accordance with the law holding the field.
18) The petitioners are not found entitled for quashing of the order dated 03.01.2018, impugned in W.P.(C) 2321/18, or to any order from the Court for
regularisation of their respective services, as such, the writ petition stands partly allowed to the extent as indicated herein below:-
a. The respondents would implementthe welfare schemes by enlisting the petitioners in Health and Accidental and Death Insurance Scheme as
envisaged in the herein before referred case of Upen Das (supra).
b. In the event there is truth in theallegations made in W.P.(C) 2321/18 that the petitioners have not been paid their salary since the month of
December, 2017, then the respondents shall release the arrear salary as per last pay scale drawn within a period of 4 (four) months from the date of
service of a certified copy of this order upon the respondent no.4.
c. The current salary shall be paid as and when due.
d. Save and except the reliefs as indicated above, all other prayers made in these three writ petitions are refused.
19) These writ petitions are disposed of.