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Wp(C) 1144/2015

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Wp(C) 1144/2015 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No.1144/2015 Sri Bhupen Talukdar Son of Late Kabin Talukdar Resident of Superintendent of Industries & Commerce, Sarihajan,Bbokajan, P.O.Sarihajan PS Bokajan Distrcit Karbi Anglong, Assam …….Petitioner -Versus- 1.The State of Assam Represented by the Commissioner and Secretary to the Government of Assam, Department of Industries and Commerce, Dispur, Ghy-06. 2.The Additional Director of Industries and Commerce, District Industries and Commerce Centre, Karbi Anglong, Diphu, Assam 3.The Assistant Director of Industries and Commerce, District Industries and Commerce Karbi Anglong, Diphu, Assam 4. The Assistant Director of Cottage Industries and Commerce, Hamren, Assam 5. The Superintendent of Industries & Commerce, Sarihajan, Bokajan District Karbi Anglong, Assam 6. The Executive Member/ Secretary I/C Department of Industries and commerce, Karbi Anglong Autonomous council, Diphu District Karbi Anglong, Assam ……. Respondents Page 1 of 6 2 BEFORE THE HON’BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. KK Phukan, Advocate. For the Respondents : Ms.M Bhattacharjee, A.S.G.A Mr. J Chutia, Standing Counsel, KAAC Date of Hearing :12.05.2017 Date of Judgment :12.05.2017 JUDGMENT AND ORDER( ORAL) Heard Mr. KK Phukan, learned counsel for the petitioner as well as Mr. J Chutia, learned Standing Counsel for the Karbi Anglong Autonomous Council who are arrayed as respondent Nos. 2 to 6. Respondent No. 1 is represented by Ms. M Bhattacharjee, learned Additional Senior Government Advocate. 2. The case of the writ petitioner in brief is that he was appointed as Officiating Chowkidar in the office of the Assistant Director of Industries, North Cachar Hill, Halfong against a leave vacancy of the serving incumbent vide order dated 9.1.1992 (Annexure-1 series). Thereafter the petitioner was engaged as Work Charge Office peon w.e.f. 2.3.1992 to 10.4.1992 in the establishment of the General Manager, District Industries Centre, Halflong on fixed pay of Rs.750/- per month. The petitioner continued to work in different capacities until he was appointed as a W.P( C) No.1144 of 2015 Page 2 of 6 3 Skilled worker and allowed to officiate in the Decorative Textile Training Centre, Hamren vide order dated 25.8.1994 issued by the Assistant Director of Industries, Diphu, Karbi Anglong (Annexure-2). Against such appointment, the petitioner continued in various capacity and his services were continued under the Industries and Commerce Department of the Karbi Anglong Autonomous District Council. However, the petitioner after receiving his salary for the month of April, 2009, further salaries were stopped by the authorities of the Industries and Commerce Department. 3. The petitioner therefore submitted his representation on 3.9.2009 (Annexure-5 series) to the Additional Director of Industries & Commerce, Diphu praying for release of his salary from the month of May, 2009. Following the said representation, petitioner made several representations to the authorities concerned. But since the petitioner was not given his salary nor regularized in service, the petitioner has filed the instant writ petition. 4. The learned counsel for the petitioner submits that as the petitioner was appointed by the respondent authorities as far back on 26.8.1994 as Skilled worker with a certain pay scale and thereafter having continued to serve under the respondents concerned, the service of petitioner ought to have been regularized and at the same time his due salaries be given. He further submits that in fact the respondent authorities duly prepared the service book of the petitioner with all necessary particulars and details and therefore the petitioner ought to have been regularized in service. But instead the respondent authorities have withheld his salary since the month of April, 2009. W.P( C) No.1144 of 2015 Page 3 of 6 4 5. He also submits that as the petitioner has been serving continuously without any break, non-sanctioning of the post to which he was appointed as well as for non-payment of his monthly salary by the respondents amounts to depriving the petitioner of his fundamental rights as guaranteed by the Constitution of India. He thus prays that a suitable direction be issued to the respondent authorities to regularize him in his service and to pay him salary that is due to him since the month of May, 2009. 6. Appearing for the respondent Nos. 2 to 6, Mr. J Chutia submits that the respondents concerned have filed their affidavit-in-opposition in the matter on 9.6.2015 whereby they have contended that there is no sanction post of Skilled worker in the establishment of the Superintendent of Industries & Commerce, Sarihajan and the appointment of the petitioner was for a specific duration as temporary and stop-gap arrangement. He submits that any appointment under the Karbi Anglong Autonomous Council has to be routed through due process after obtaining approval and sanction of the autonomous council and by way of open selection. In the instant case, petiotner has been appointed without any prior sanction and that too without the approval of the Autonomous council. Such appointment on the other hand as earlier submitted can only be termed as stop gap arrangement if not otherwise an irregular appointment. The respondent authorities therefore vide communication dated 15.6.2009 informed the petitioner that there was no post of Skilled worker under the establishment of the Superintendent of Industries & Commerce, Sarihajan and therefore he is not entitled to any further salary besides what has been paid to him. He submits that in fact the petitioner is duly aware of his status that he was appointed on officiating basis and allowed to discharge his duty against which there was no post sanctioned. W.P( C) No.1144 of 2015 Page 4 of 6 5 In such circumstances, even if a service book had been opened in favour of the petitioner, same does not entitle the petitioner any right to continue in the post, much less regularization against the same. The learned counsel for the respondent Nos. 2 to 6 further submits that there is no scheme made by the respondents concerned for regularization of temporary employees and therefore there is no scope for considering the case of the petitioner for regularization even if the same was found to be warranted. 8. I have considered the rival submissions of the parties and have also perused the materials available on record. It can be seen that the petitioner was initially appointed on officiating basis against leave vacancy by the authorities concerned under the North Cachar Hills and thereafter in the year 1994, he came to be appointed under the Karbi Anglong Autonomous Council and that too on officiating basis against non- sanctioned post. The petitioner continued as such in various capacities and he continued to be paid his salaries upto April, 2009. However, after April, 2009, the authorities discontinued his monthly salary and informed him that his appointment was not against any sanctioned post and in that view of the matter there was no question of paying him further salaries. 9. The law in this regard is well settled that appointments made without routing the proper process and sanction cannot be sustained. In the case of Uma Devi –vs- State of Karnataka –vs- Uma Devi reported in (2006) 4 SCC 1 , it has been held that irregular employment cannot be allowed to continue unless the same is made as per the scheme of the Constitution. Apparently, in the instant case as well, the petitioner was appointed without any process of law without selection and against a post for which there was no sanction and therefore although the petitioner may have continued his service since the year 1994 without any break the W.P( C) No.1144 of 2015 Page 5 of 6 6 same does not entitle him regularization when the post itself is not sanctioned. In that view of the matter, I do not find any merit in the instant writ petition and the same is dismissed. 10. However, having observed that the petitioner has been serving since the year 1994 under the respondent authorities, it is hereby provided that as and when there exist a regular vacancy in the Grade-III post under the respondent authorities, the petitioner shall be considered for appointment by the said authority keeping in mind his experience in view of service rendered in various capacities under the respondent authorities. It is also noticed that as he has already crossed the maximum age limit to seek employment under the Government establishment and therefore it is hereby provided that the respondent authorities while considering the petitioner against such vacancy shall consider relaxing his age as a one time measure in view of his past experience. 11. With the above observation, the writ petition is accordingly disposed of. JUDGE Nivedita W.P( C) No.1144 of 2015 Page 6 of 6 .
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