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Pranjit Kumar Das / v. State Of Assam & Others
Judgment Summary — S.N. Phukan, J.
Factual and Procedural Background
This appeal challenges the Single Judge's order dated 13.6.1994 in Misc. Case No. 406 of 1994 arising out of Civil Rule No. 1932 of 1993. The Misc. Case was brought by private respondents under clause (3) of Article 226 of the Constitution seeking modification/alteration/cancellation of two interim stay orders of 16.7.1993 and 17.9.1993 in the main Civil Rule. Those interim orders had restrained ousting of ten writ petitioners from service until further orders.
The Single Judge vacated both interim orders and observed that the persons selected by the Public Service Commission (PSC) ought to be duly appointed in accordance with rules, while sympathetically suggesting possible absorption of the ten writ petitioners. The present appeal was filed against that Single Judge order.
This Court, after interim directions on 15.6.1994 concerning production of records and permitting appellants to continue in service subject to appointment letters conditioning appointments on the outcome of the appeal, agreed with counsel to proceed to decide the main Civil Rule (Civil Rule No. 1932/93) along with Writ Appeal No. 232/94. The Court heard counsel for appellants, the State, the PSC and private contesting respondents and received the departmental and PSC records.
Substantively, the appellants were initially appointed to the post of Senior Inspector of Handloom & Textile under the Assam Public Service Commission (Ad-hoc) Appointment Rules, 1986 (Rules of 1986) in 1990 on a temporary ad-hoc basis following advertisement and interview. Their ad-hoc appointments were temporary, limited by rule 5 of the Rules of 1986 to one year. The Rules of 1986 were later repealed (18.5.1992) and the appellants' appointments were converted to appointments under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 (Regulation of 1951), initially for four months and subsequently extended.
Meanwhile, the PSC issued a fresh advertisement dated 9.10.1991 and held interviews of 72 candidates (including some of the appellants). A merit list of 16 candidates and a waiting list were prepared and communicated to the State. The PSC-selected candidates included three colleagues of the appellants; the appellants did not qualify in the PSC selection.
The appellants challenged lack of regularisation and sought relief in the writ petition, asserting entitlement to regularisation either under the Rules of 1986 or because their appointments had been continued under Regulation 3(f) of 1951. The private respondents sought vacation of the stay on the basis that the PSC select list validity was limited and the stay impeded appointment of selected candidates. The Single Judge vacated the interim stay; this Court ultimately heard and decided the substantive dispute.
Legal Issues Presented
- Whether persons appointed on an ad-hoc basis under the Assam Public Service Commission (Ad-hoc) Appointment Rules, 1986 (or whose appointments were subsequently converted under Regulation 3(f) of the Assam Public Service Commission Regulation, 1951) acquire a legal right to regularisation of service—without undergoing the regular selection process conducted by the Public Service Commission—by virtue of the length of their service or by operation of those rules.
- Whether the select list prepared by the Public Service Commission and the appointments of candidates recommended by it can be frustrated or delayed by continued interim orders restraining appointment of the PSC-selected candidates.
Arguments of the Parties
Appellants' Arguments
- The appellants were appointed after advertisement and interview under the Rules of 1986 and, having served for a substantial period, are entitled to regularisation of their appointments.
- Alternatively, after the Rules of 1986 were repealed and their appointments were converted to appointments under Regulation 3(f) of the Regulation of 1951 with extensions, they should be regularised without undergoing a fresh selection with candidates who applied to the PSC.
- The appellants relied on Dr. Shashi Kama Mishra v. State of Bihar (1987 Supp SCC 495) to support relief related to delayed action by the Public Service Commission in other circumstances.
Private Respondents' and State's Arguments
- The Rules of 1986 and Regulation 3(f) of the Regulation of 1951 do not confer any right on ad-hoc appointees to be regularised; they impose duties on the department and the PSC but do not create a vested right in the incumbents.
- The PSC conducted a fresh selection; three colleagues of the appellants were selected while the appellants failed to qualify in that selection, and therefore they are estopped from challenging the PSC's select list and appointments.
- The PSC's select list had a limited period of validity, and continuing the stay would prevent appointment of duly selected candidates.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hemanta Kumar Pegu v. State of Assam, 1988 (1) GLJ 383, (1989) 1 GLR (NOC) 7 | Interpretation of Regulation 3(f) of the Assam Public Service Commission Regulation, 1951: Regulation 3(f) provides mode of appointment to temporary posts and does not itself supply a source of power to create permanence; 'regularisation' requires selection and does not automatically follow from ad-hoc appointment. | The Court followed the ratio in Hemanta Kumar Pegu, holding that conversion of ad-hoc appointments to appointments under Regulation 3(f) does not confer a right to regularisation; regular appointment must be by selection on the PSC's recommendation. |
| Dr. Shashi Kama Mishra v. State of Bihar, 1987 Supp SCC 495 | Illustration of the Supreme Court directing the PSC to complete selection/examination procedures and communicate names to the State where the PSC had failed to act in compliance with court orders. | The Court considered the authority but held it not relevant to the facts: unlike that case, the record here showed the State had requested regularisation but the PSC considered there was no provision for such regularisation; thus the Shashi Kama Mishra decision was not applied to grant relief. |
Court's Reasoning and Analysis
The Court's analysis proceeded by close textual examination of the Rules of 1986 and Regulation 3(f) of the Regulation of 1951 and by application of the precedents cited.
First, the Court examined the Rules of 1986, in particular:
- Rule 3 (sub-rule (1)) permits ad-hoc appointment by direct recruitment to a temporary post if immediate appointment is necessary in the public interest and reference to the Commission would cause undue delay.
- The proviso to sub-rule (1) and clause (c) of sub-rule (2) place an obligation on the administrative department to review ad-hoc appointments within four months and, where a post is likely to continue beyond four months, to send a requisition and draft advertisement to the PSC for recommendations to make appointments on a regular basis.
- Rule 5 caps any appointment under the Rules of 1986 at one year, after which the appointment shall automatically stand terminated unless earlier terminated.
From those provisions the Court concluded that the Rules of 1986:
- Were intended to provide a temporary, limited mechanism to fill posts immediately by ad-hoc recruitment while ensuring that if posts were to continue the PSC is engaged to make regular appointments.
- Do not confer on an ad-hoc appointee a substantive right to regularisation merely by reason of holding an ad-hoc post or by length of service; rather, they impose duties on the administrative department to consult the PSC and seek regular appointments through the PSC's process.
Second, the Court considered the effect of conversion of the appellants' appointments to appointments under Regulation 3(f) of the Regulation of 1951 after repeal of the Rules of 1986. The Court relied on the Division Bench decision in Hemanta Kumar Pegu which interpreted Regulation 3(f) as not providing a source of power for regular appointment but only a mode for temporary appointments, and held that regularisation requires selection. The Court adopted that ratio as sound and applicable.
Third, the Court addressed the appellants' reliance on Dr. Shashi Kama Mishra. It observed that the apex court in that case directed completion of selections where the PSC had failed to act despite prior directions. However, the present record showed that the State had requested regularisation but the PSC was of the view that there was no provision to regularise the incumbents; accordingly Shashi Kama Mishra was found inapposite and not a basis to grant relief here.
The Court also noted the factual point that the appellants did not qualify in the PSC's 1991 selection while some of their colleagues did qualify, which supported the view that appellants could not be deprived of appointments of duly selected candidates by continuation of the stay.
On that combined statutory and precedential analysis, the Court concluded that neither the Rules of 1986 nor Regulation 3(f) of the Regulation of 1951 conferred a right on the appellants to be regularised without undergoing the PSC's selection process.
Holding and Implications
Holding: The Court dismissed the writ petition and the appeal and vacated the stay order. The Court directed that the parties bear their own costs.
Implications:
- The direct effect of the decision is that the appellants have no enforceable right to regularisation of their appointments merely by virtue of having been appointed ad-hoc under the Rules of 1986 or by conversion to Regulation 3(f) appointments; regular appointment requires selection on the PSC's recommendation.
- The PSC's select list and appointments made pursuant to that selection process are not to be frustrated by continued interim stays; the validity period of the PSC list and the ability to appoint the selected candidates is a relevant consideration.
- The Court applied and followed existing precedent (Hemanta Kumar Pegu) rather than announcing a novel principle; accordingly the decision enforces the established interpretation that ad-hoc/Regulation 3(f) appointments do not in themselves create a right to regularisation without selection.
- No broader new legal principle or binding new precedent was created beyond the Court's affirmation of the cited ratio; the decision resolves the dispute between the parties and clarifies that statutory duties to consult the PSC do not equate to a substantive right for incumbents to be regularised without following the PSC's selection process.
Order: Dismissal of the writ petition and the appeal; stay vacated; parties to bear their own costs.
S.N Phukan, J.:— This appeal is directed against the order of the learned Single Judge dated 13.6.94 passed in Misc. Case No. 406 of 1994 arising out of Civil Rule No. 1932 of 1993. The above Misc. Case was registered on a petition filed by the private respondent under clause (3) of Article 226 of the Constitution of India for modification/alteration/cancellation of the stay orders passed on 16.7.93 and 17.9.93 in the main Civil Rule. By the above two interim orders the learned Single Judge directed that the 10 (ten) writ petitioner shall not be ousted from service until further orders and by order dated 17.9.93, it was directed that the above order dated 16.7.93 shall continue.
2. The learned Single Judge by the impugned order relying on the relevant law as well as decisions of the apex court vacated both the above two interim orders passed in the main Civil Rule and observed that the persons viz private respondents selected by the Public Service Commission shall be duly appointed in accordance with rules. The learned Single Judge also observed that the ten writ petitioners may be absorbed in the department if possible by sympathetically considering their cases as they were serving in the department for about 4 years. Against the above interim order, the present appeal has been filed. This court on 15.6.94 after hearing the learned counsel for the parties directed the Commissioner-cum-Secretary of the Handloom and Textile Department to produce the original records and furnish informations as stated in the said order. It was also made clear that appellants would be allowed to continue in service and however State Govt. may issue appointment letters in favour of the persons who have been selected by the Assam Public Service Commission inserting a condition in the appointment letters that the appointment is subject to the decision in the present appeal. It was agreed to by the learned counsel of all the parties that instead of deciding the interim order passed by the learned Single Judge, the main Civil Rule may be taken up by this court for final disposal. Accordingly, as per direction of this court, both the State Govt. and the Public Service Commission produced the records before this court. We, accordingly proceed to decide both the Civil Rule viz Civil Rule No. 1932/93 as well as Writ Appeal No. 232/94 after hearing Mr. D.N Choudhury for the appellants-writ petitioners. Mr. D.P Chaliha, Govt. advocate, Mr. P. Prasad counsel for the Public Service Commission and Mr. D.C Mahanta, counsel for the private contesting respondents.
3. An advertisement was issued by the Commissioner-Cum-Secretary to the Govt. of Assam, Handloom & Textile & Sericulture Department on 29.7.89 calling for application for appointment in the post of Sr. Inspector of Handloom & Textile. All the pctilioners-appellants alongwith others were interviewed by a selection committee and a select list was prepared. Thereafter all the petitioners-appellants were appointed under the provisions of Assam Public Service Commission (Ad-hoc) Appointment Rules, 1986. The notification appointing the petitioners were issued on 24.3.90 and 23.5.90 vide Annexure-B & C to the Civil Rule. The appointment was purely temporary and under the above rules. By the first order only one person has been appointed, and by the subsequent orders, fourteen persons were appointed. Petitioners-appellants joined their posts at different places under the Director of Handloom & Textile, Respondent No. 2. It has been alleged by the petitioner-appellants that after joining their posts they were discharging their duties to the best of their abilities and that apart they were also sent for short term training on management of co-operative societies to the Co-operative Training College. However, after serving for one year their services were terminated with effect from 22.5.91 and they were re-appointed in the same post on the next date i.e 23.5.91 vide Annexure - I & J to the writ petition. It has been alleged that the Govt. of Assam by a letter dated 30.5.91 informed the Secretary, Public Service Commission, respondent No. 4 about the appointment of appellants-petitioners and requesting the Commission for taking necessary steps for regularisation of their posts. The grievance of the appellants is that no regularisation did take place. The letter of the State Govt. is at Annexure-K to the writ petition. Petitioners-appellants also filed representations for regularisation of their services without any result. The representations arc at Annexure-L, M and N to the writ petition.
4. The Assam Public Services (Ad-hoc) appointment Rules, 1986 was repealed by a Notification dated 18.5.92 and therefore, the earlier appointments of the writ petitioners were converted to appointments under regulation 3(0 of the Assam Public Service Commission Regulation, 1951, initially for a period of 4 months which was subsequently extended from lime to time and the petitioners-appellants are still continuing in the said post in view of the extension and subsequent stay orders passed by the court.
5. An advertisement was issued by the Public Service Commission which was published in the News Paper on 9.10.91 calling for applications from intending candidates for filling up the posts of Sr. Inspector of Handloom & Textiles which the petitioners-appellants are still holding. Petitioners-appellants also applied in response to the said advertisement and according to the petitioners-appellants it was so done due to compelling circumstances and in the fear of lossing their jobs. The Public Service Commission after holding interview of 72 candidates including the petitioners-appellants prepared a merit list for general category, as well as reserved categories of 16 candidates and also a waiting list of 16 persons for future vacancies. The list was duly sent to the State Govt. and is available at Annuexure-1 to the counter filed by the private respondents. In the affidavit filed by the private respondent for vacating the interim slay order, it has been stated that 3 colleague of the appellants-petitioners also applied for the post in response to the advertisement issued by the Commission and they were selected. But the present appellants-petitioners though interviewed could not quality and therefore, they are estopped from challenging the select list prepared by the Public Service Commission. We may state here that the private respondents filed the petition for vacating the slay order on the ground that the validity of the select list is going to expire on 11.10.94 and therefore, if the stay continue that would have no chance for being appointed though selected by the Commission.
6. As admittedly the petitioners-appellants could not qualify in the interview conducted by the Public Service Commission for the post they are holding, only point that needs our consideration as to whether under the relevant rules they have got right to claim regularisation by a separate procedure under the relevant rule. We extract below the relevant provisions of the Assam Public Services (Ad-hoc) appointment Rules, 1986, for short the Rules, 1986 and Regulation 3(0 of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951, for short the Regulation of 1951
7. For the present purpose sub-rule (1) of rule 3 and clause (c) of sub-rule (2) of rule 3 and rule 5 of the Rules of 1986 are relevant and are quoted below:
“3. Ad-hoc Appointment: (1) Notwithstanding anything contained in any service rules, ad-hoc appointment by direct recruitment to a temporary post created under the Govt. may be made, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay:”
(Commission has been defined in Rule 2 of the Assam Public Service Commission Regulation)
8. The proviso to said sub-rule runs as follows:
“provided that if the post has been sanctioned for or is likely to last for more than 4 months, the Commission shall as soon as possible be consulted for making the appointment on regular basis as provided for in clause (c) of subrule (2) of this Rule”
9. The said clause (c) of sub-rule (2) of this rule 3 runs as follows:—
“(c) A review of all ad-hoc appointment shall be made by the concerned administrative department within 4 months of initial appointment and whenever it appears that such posts are likely to continue in the public interest for a period exceeding 4 months then a requisition alongwith draft advertisement shall be sent to the Commission within 4 months of initial date of appointment with a request to furnish its recommendation for making the appointment on regular basis without causing undue delay”.
10. Rules 5 of the said rules of 1986 runs as follows:—
“5. Term of Appointment:— Any appointment made under these rules shall not be continued beyond a period of one year from the date of initial appointment. Such appointment shall automatically stand terminated on the expiry of the said period of one year unless terminated earlier.”
11. The Regulation 3(f) of the Regulations of 1951 runs as follows:—
“3. It shall not be necessary for the Commission to be consulted in matters relating to methods of recruitment to civil services and posts or the suitability of the candidates for such appointment, in the following cases, viz.:—
(a) ………………………………………
(b) ………………………………………
(c) ………………………………………
(d) ………………………………………
(e) ………………………………………
(f) When an appointment is to be made by direct recruitment to a temporary post created in a service if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay provided that if the posts has been sanctioned for or is likely to last for more than 4 months, the Commission shall, as soon as possible be consulted in all matters mentioned in sub-clause (3) of Article 302 of the Constitution.”
12. The Commission has been defined in Regulation No. 2 of the Assam Public Service Commission.
13. The first point that has been urged by the learned counsel for the appellants is that the appellants were appointed after due advertisement and interview under the provisions of the Rules of 1986 and therefore, they are entitled to be regularised in view of the fact that they have put in service for a long period in terms of the said rules. In the alternative it has been urged that even though their appointment were converted after rules of 1986 were repealed to appointment under Regulation 3(f) of the Regulation of 1951 and they have been given extension from time to time, they are entitled to be regularised without going through the process of selection alongwith the fresh candidates by the Public Service Commission. On the other hand, it has been urged on behalf of the private respondent that rules of 1986 and Regulation 3(1) of the Regulation, 1951 do not give any right to the present appellants for regularisation and as such they cannot deprive appointments of duly selected persons by the Assam Public Service Commission, more particularly, as the present appellants also appeared before the Public Service Commission and they have failed though their three colleagues were selected. Therefore, this court has to consider the question whether rules of 1986 though repealed and Regulation 3(f) of Regulation, 1951 under which the appellants where subsequently appointed give any right to the present appellants to gel themselves regularised without going through the regular selection process alongwith oilier candidates who applied in response to the advertisement in question issued by the Public Service Commission.
14. The intention of framing rules of 1986 is clear, inasmuch as, the authorities concerned wanted that in case of even ad-hoc appointments by direct recruitment to a temporary post all eligible candidates are given equal chance to be selected by a committee consisting of officers mentioned in the said rule viz the Secretary of the Administrative department, a nominee of the Personnel Department, and a senior officer nominated by the Secretary of the Administrative Department. Such ad-hoc appointment is of purely temporary nature and the maximum period fixed in term of rule 5 of the Rules of 1986 is one year. This rule 5 is very emphatic that after the end of one year such appointment shall automatically stand terminated. In fact, in the case in hand also after the period of one year, the services were terminated though re-appointed again.
15. Reading proviso to sub-rule (1) of rule 3 and clause (c) of sub-rule (2) of the said rule 3, we are of the definite opinion that if the posts against which a person is appointed on ad-hoc basis is likely to continue for more than 4 months, the Public Service Commission shall be consulted for making appointment on regular basis and for this purpose a review of all ad-hoc appointment by the concerned department has to be made within a period of 4 months and if it appears that the posts is likely to continue for more than 4 months it is obligatory on the part of the department to send a proper requisition with draft advertisement to the Public Service Commission with a request to furnish the recommendation of the Commission for making appointment on regular basis. In other words, the above provision of the rule do not confer any right on the person who were appointed under the rules on ad-hoc basis, to be regularised, but these rules cast a duty on the Public Service Commission on the basis of the draft advertisement issued by the department to send regular recommendation for making appointment on regular basis to the department. In other words, these rules of 1986 do not give any right to a appointee under these rules on ad-hoc basis for consideration for regularisation in the post. But if the post is likely to continue for more than 4 months duty is cast on the department to send an advertisement to the Public Service Commission and thereafter make regular appointment on the recommendation of the Public Service Commission.
16. As after the rules of 1986 were repealed and after that the appellants were appointed under regulation 3(f) of (the Regulation of 1951, let us now consider whether the above regulation confers any right on the appellants to claim regularisation on the basis of their appointment under Regulation 3(f).
17. This Regulation 3(0 of the Regulation of 1951 came up for consideration by the Division Bench of this court in Hemanta Kumar Pegu v. State of Assam, 1988 (1) GLJ 383, (1989) 1 GLR (NOC) 7. The Division Bench considered regulation 3(f) and held in paragraph 27 of the judgment that this regulation docs not provide a source of power for appointment, but only provides the mode of appointment and that regularise does not connote permanence. The contention that the persons who were appointed under regulation 3(f) can be regularised if they arc otherwise qualified was not accepted by the court and it was held that regularisation means making regular appointment by selection irrespective of the question whether the petitioners were already appointed under regulation 3(f) or not. The ratio laid down in the above decision in our opinion is the correct proposition of law and there is no reason to lake a different view. Therefore, in view of the above ratio, we are constraint to hold that merely because the appointments of the appellants were converted to appointment under regulation 3(f) of the Regulation of 1951, they cannot claim regularisation due to length of their service. We may note here that Mr. D.N Choudhury, learned counsel for the appellant has placed reliance on a decision of the apex court in Dr. Shashi Kama Mishra v. State of Bihar, 1987 Supp SCC 495. In that case, the apex court held that due to failure of the Public Service Commission to make appointment of doctors inspite of orders passed by the High Court, 3 (three) years back, the apex court was obliged to direct the Public Service Commission to complete the examination in every manner and communicate the State Govt. the names of successful candidates by a date fixed by the apex court. This decision is not relevant for our purpose as we find from record that though the State Govt. requested for regularisation of the services of the appellants, the Assam Public Service Commission was of the view that there is no provision for such regularisation.
18. In the result, we find no merit in the present writ petition and the appeal and accordingly these are dismissed. Stay order stands vacated. Considering the facts and circumstances of the case we direct that the parties shall bear their own costs.
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