Mukul Saikia & Ors vs State Of Assam & Ors

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. 4

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.

28