writ appeal no. 334/2011 - gauhati high courtghconline.nic.in/judgment/wa3342011.pdfwrit appeal no....
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WA No. 334 of 2011
IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR; TRIPURA;
MIZOAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 334/2011
1. Bodoland Territorial CouncilRepresented by the Secretary, BTC,Kokrajhar, Assam.
2. The Secretary, Education, BTC,Kokrajhar, Assam.
3. The Director of Education, BTC,Kokrajhar, Assam.
…………….appellants - Versus -Krishna HaloiS/o. Harkanta Haloi,R/o. Vill. Athiabari,PO. Athiabari,PS. Borbori, Dist. Baksa,BTAD.
……..respondent
P R E S E N TTHE HON’BLE MR. JUSTICE I A ANSARI
THE HON’BLE MR. JUSTICE P.K. MUSAHARY
For the appellants : Mr. D. Das, Sr. Advocate Ms. M. Bordoloi, Advocate, Mr. H. Nath, Advocate
For the respondent : Mr. A. Deka, Advocate, Ms. N. Saikia, Advocate
Date of hearing : 06.01.2012Date of Judgment : 25.01.2012
JUDGMENT & ORDER
(Ansari, J.)The challenge, in this writ appeal, is against the judgment and
order, dated 28.07.2011, passed, in WP(C) No. 5331/2009, by a
learned Single Judge of this Court, who, while allowing the writ
petition, set aside the order, dated 23.06.2009, passed by the Director
of Education, Bodoland Territorial Council, Kokrajhar, whereby the
service of the writ petitioner was terminated on, chiefly, four grounds,
namely, (i) that the order of termination was not preceded by any
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WA No. 334 of 2011
notice to show cause against the termination of the appointment of the
petitioner as an Assistant Teacher in ME School, (ii) that the order of
termination had been passed after 11 (eleven) years of the
appointment of the writ petitioner, (iii) that the order of termination is
vague and (iv) that the petitioner’s appointment, as an Assistant
Teacher, had been confirmed many years back.
2. We have heard Mr. D. Das, learned Senior counsel, appearing on
behalf of the appellant, and Mrs. N. Saikia, learned counsel for the
writ petitioner-respondent.
3. Before coming to the merit of the present appeal, it is apposite to
take note of the order, which stood impugned in the writ petition,
whereby the service of the writ petitioner (respondent herein) had been
terminated, the order having been issued, on 23.06.2009, by the
Director of Education, Bodoland Territorial Council, Kokrajhar. The
order, in question, reads as under:
“GOVT. OF ASSAMOFFICE OF THE DIRECTOR OF EDUCATION, BTC, KOKRAJHAR
ORDER
Dated Kokrajhar the 23rd June/2009.
No. DE/BTC/Apptt-124/09/278, In exercise of power conferred upon
the Director of Education vide Secretary, BTC’s No. BTC/EDN(EI)-
35/2005/1, dtd. 13-09-2005 and in pursuance of order Secretary BTC’s
vide letter No. BTC/EDN/TERM-514/2008/3, dtd. 6th Nov/2008, the
services of Krishna Haloi, AT, Uttar Kamrup MEM (doubtful) is hereby
terminated from service with immediate effect due to non-fulfilling the
following terms & conditions.
A. Advertisement issued by the DEEO, D.I. of Schools of Nalbari
inviting application as a candidates to fill-up the posts in the
schools.
B. Approval of State Level Empowered Committee of the personal
department of Govt. of Assam to fill-up the posts.
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C. The records of holding interview and preparation of score
sheets by the interview Board.
D. List of selected candidates indicating vacancies of the schools
to fill-up the selected candidates.
E. Approval of EBAC for the appointment.
Sd/- R. S. Borgayary,Director of Education,
Bodoland Territorial Council,Kokrajhar
Memo No. DE/BTC/Apptt-124/09/278-A, Dated Kokrajhar the23rd June/2009.
Copy to:1. The PS to the Executive Member, Education, BTC,
Kokrajhar, for information.2. The Secretary, Education, BTC, Kokrajhar, for favour of
information.3. The DEEO, Baska, Mushalpur, for information.4. The BEEO, Baska, Mushalpur/Tamulpur/Tihu-Barama
for information.5. Sri Diganta Das, Sr. Advocate, Gauhati High Court &
Standing counsel, BTC, Kokrajhar, for information.6. The Headmaster/Head teacher, Uttar Kamrup MEM for
information.7. The person concerned.8. Office guard file.
Sd/- R. S. Borgayary,Director of Education,
Bodoland Territorial Council,Kokrajhar”
4. From a bare reading of the order, dated 23.06.2009, which has
been set aside by the learned Single Judge, what can be clearly
gathered from the order, dated 23.06.2009 (whereby the writ
petitioner’s service was terminated), is the fact that there were four
specific grounds, which were mentioned in the order of termination.
These grounds were as follows:
“1. That no advertisement had been issued by the DEEO, D.I. of
Schools, Nalbari, inviting applications from eligible candidates to
fill up the posts in the schools.
2. That necessary approval of State Level Empowered Committee
of the Personnel Department, Govt. of Assam, to fill up the posts
had not been taken.
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3. That there was no record available with regard to holding of
interview and/or preparation of score-sheets by the interview
Board.
4. No list of selected candidates, indicating vacancies of the
schools, was available to appoint the selected candidates.
5. Necessary approval of EBAC for the appointment had not been
obtained.”
5. Thus, the order, dated 23.6.2009, is not a vague order inasmuch
as it assigned grounds, which led to the termination of the writ
petitioner’s appointment. There is no doubt that the order of
termination was not preceded by any notice to show cause against the
proposed termination. This by itself is, however, not sufficient, under
the law, to set aside an order of termination unless the writ petitioner
can show that absence of notice has caused prejudice to him. The
reason for insisting on a notice before termination of an employee’s
service is that the employee must receive an opportunity to show
cause against the grounds on which his appoint is sought to be
terminated. This does not, as a corollary, necessarily mean that an
order of termination must be set aside, whenever it is not preceded by
a notice to show cause. It is within the ambit of the power of the
Court to ask the employee as to what would have been his reply, had
be been served with a notice to show cause. If the reply of the
employee reveals that the conclusion, reached by the employer to
terminate the service of the employee, without serving any notice on
the employee to show cause, would have remained the same, had the
employee been served with a notice to show cause, the Court would
not interfere with the order of termination, for, in such a case, no
prejudice can be said to have been caused to the employee concerned.
The test, in such cases, always lies in determining as to whether any
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prejudice has been caused to an employee for not giving him any
notice to show cause or for not supplying to him enquiry report, which
becomes the basis of imposition of punishment. Reference, in this
regard, made to the case of Union of India Vs. Bisamber Das Dogra,
reported in (2009) 13 SCC 102, wherein the Supreme Court took note
of various decisions, including its decision in Umrao Singh
Choudhary (Dr.) Vs. State of M.P., reported in (1994) 4 SCC 328,
and Syndicate Bank Vs. Venkatesh Gururao Kurati, reported in
(2006) 3 SCC 150, and concluded to the effect that to sustain the
allegation of violation of principles of natural justice, one must
establish that prejudice has been caused to him for non-observance of
principles of natural justice. The relevant observations, appearing in
para 12 and 13 of Bisamber Das Dogra (supra), read as under:
“12. In Umrao Singh Choudhary (Dr.) v. State of M.P., this Court
held (SCC p. 331, para 4) that the principles of natural justice do
not supplant the law, but supplement the law.
13. In Syndicate Bank v. Venkatesh Gururao Kurati, it was held:18. … To sustain the allegation of violation of principles of natural
justice, one must establish that prejudice has been caused to him
for non-observance of principles of natural justice.”
6. One may also refer to the case of Haryana Financial
Corporation Vs. Kailash Chandra Ahuja, reported in (2008) 9 SCC
31, wherein the Court, referring to the case of ECIL Vs. B. Karunakar,
reported in (1994) SCC Suppl (2) 391, pointed out that even failure to
supply the report of the enquiry before imposition of punishment on
the delinquent employee would not ipso facto result in the proceedings
being declared null and void nor would, in such a case, the order of
punishment become non est and ineffective and that it is for the
delinquent employee to plead and also prove that non-supply of
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enquiry report has caused prejudice to him and that miscarriage of
justice has resulted thereby and, if the employee fails to satisfy the
Court on this score, the order of punishment cannot be automatically
set aside.
7. The case of Secretary, Andhra Pradesh Social Welfare
Residential Educational Institutions Vs. Pindiga Sridhar, reported
in (2007) 13 SCC 352, is also one of the cases, where the Court laid
down that violation of the principles of natural justice must result in
prejudice to the employee concerned in order to enable the Court to
interfere with an order passed adverse to his interest. In the case of
Pindiga Sridhar (supra), the respondent applied for appointment, on
compassionate ground, as a dependant of late P. Andhru without
disclosing that his mother was in State’s service, as teacher, in a High
School. The Court, in Pindiga Sridhar (supra), pointed out that by
suppressing that his mother was already in Government service, the
petitioner had committed fraud and, in the face of such admitted facts,
the order of termination of his service could not have been interfered
with merely because no notice to show cause was given to him,
specially, when no prejudice could be shown to have been caused to
him as a result of the omission to give him the notice to show cause, if
any, before termination of his service.
8. In the case at hand, except pleading to the effect that no notice
to show cause was given before the order of termination was passed, it
was neither pleaded nor proved as to what prejudice had been caused
to the writ petitioner-respondent as a result of the omission to give
notice to the petitioners before their services were terminated.
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9. In order, therefore, to determine if any prejudice has been
caused to the petitioner-respondent by not giving him any notice to
show cause, it is necessary to look into the background of not only the
order of appointment of the petitioner, as an Assistant Teacher, but
also the subsequent admitted developments, which led to the
termination of the petitioner-respondent’s appointment. The admitted
facts may, now, be taken note of:
10. The writ petitioner-respondent’s appointment commenced with
the order, dated 27.10.1998, passed by the District Elementary
Education Officer, Nalbari. This order, being the basis of the entire
edifice of the writ petitioner-respondent’s case, is extracted below:
“OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER,NALBARI (ASSAM)
ORDER
Subject to termination without notice and without assigning
any reason thereof Sri Krishna Haloi PU is hereby appointed with
effect from the date of his joining as Asstt. Teacher in the scale of
pay Rs. 1185-20-1225-30-1435-40-1555-EB-1635-50-2035-60-
2395/- p.m. plus other allowances as admissible under Rules in
Uttar Kamrup ME Madrasa School against the sanctioned post
vide Govt. of Assam sanctioning letter No. PFA/337/95/pt-1/152
dated 24/4/98 and DEE’s communicated letter No.
EPD/OB/6/96/156 dtd. 24th April/98.
The appointment is made as per approval of Sub Divisional
Advisory Board, Elementary Education, BAC, Nalbari.
The examination will be debitable to the Head of account
02202-Conl-Edn-III-Centrally Sponsored Scheme-01-Ele-Edn-102-
Assistance to Non-Govt. Pry. School (C) Operation Black Board (I)
Salary (Plan) 1998-99.
Sd/- A. Choudhury,Dist. Elementary Education Officer,
Nalbari.Memo No. DE/Nal/ESSTT-94/3/BAC/pt-I/2940-47, dtd. Nalbarithe 27th Oct/98.”
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11. A bare glance on the above order of appointment clearly shows
that the appointment of the writ petitioner-respondent was not against
any regular sanctioned post, but against a post, which had been
created pursuant to a Centrally Sponsored Scheme and this scheme
was, admittedly, known as Operation Black Board. The order of
appointment of the writ petitioner-respondent also clearly shows that
so long as the scheme was to continue, the appointment of the writ
petitioner-respondent was to continue unless, otherwise terminated
earlier. The writ petitioner’s appointment was, it is transparent,
inherently temporary in nature depending upon the continuation of
the scheme knows as Operation Black Board (in short, ‘OBB’). The
post, to which the writ petitioner-respondent stood appointed, was,
thus, a ‘plan’ post and not a ‘non-plan’ post. The difference between a
‘plan’ post and a ‘non-plan’ post is that a ‘plan’ post is a post under a
temporary scheme or plan meaning thereby that so long as the scheme
or plan continues, the appointment continues. As against this nature
of appointment of ‘plan’ post, appointment against ‘non-plan’ post
means that the post is perpetual in nature unless done away with.
12. The writ petitioner-respondent’s appointment, as an Assistant
Teacher, by order, dated 27.10.1998, aforementioned was, thus, we
may reiterate, inherently temporary in nature with no permanency
attached thereto in the sense that that the appointment would have
continued as long as the scheme, sponsored by the Central
Government and commonly known as OBB (Operation Black Board)
continued.
13. What is also required to be noticed is that the order, dated
27.10.1998 (whereby the writ petitioner stood initially appointed) was
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WA No. 334 of 2011
in consequence of the letter, dated 24.04.1998, which had been issued
by the Director of Elementary Education, Government of Assam, to the
District Elementary Education Officer, Nalbari, informing him of
sanctioning of posts of teacher for primary schools under the scheme,
namely, Operation Black Board. The letter, dated 24.04.1998, reads
as under:
“GOVT. OF ASSAMOFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION:ASSAM: KAHILIPARA; GUWAHATI-19
NO. CPO/08/6/96/156, dated Kahilipara the 24th April/98
To,
The District Elementary Education Officer,Nalbari”
Sub: Sanctioning of post for Upper Primary schools under thescheme of Operation Black Board.Ref: Govt. letter No. PMA. 337/95, Pt-1/152 dtd. 24.4.98.
Sir,With reference to the above, I have the honour to
communicate the sanction of posts under the scheme of Operation
Black Board Two Hundred Thirteen No. of schools have been
selected under the scheme for your District (list enclosed) and
each school will receive only one post and accordingly two
hundred thirteen No. of posts are hereby sanctioned for your
district. You are further requested to see to it that no school in the
enclosed list gets more than one post and no school outside the
list is considered for the purpose of entertainment of post.
You are therefore requested in strictly follow the above
guideline while utilizing the sanctioned posts.
These posts of Asstt. Teachers bear scale of pay of Rs.
1185-2395/- p.m. plus other allowances as admissible under the
Rules and are created for the period upto 28-02-99 from the date
of entertainment. These posts will be abolished after the 9th plan
period is over and the incumbents will have to be
adjusted/absorbed in the existing vacancies.
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The expenditure will be debitable to the Head of Account
“2202-General Education-III-Centrally Sponsored Scheme 01-Ele-
Education 102-Assistance to non-Govt. Pry. Schools (C)-Operation
Black Board (i) Salary (Plan)” during 1998-99.
Yours faithfully,
DirectorElementary Education, Assam,
Kahilipara, Guwahati-19”
14. From the letter, dated 24.04.1998, what becomes crystal clear is
the fact that the post, against which the writ petitioner-respondent
had come to be appointed, was a ‘plan’ post under OBB scheme and
his post, along with all other such posts, were to be abolished with the
end of the ‘ninth plan’ and the incumbents were to be
adjusted/absorbed, in the existing vacancies, if any.
15. A combined reading of the letter, dated 24.04.1998, and
17.08.2000, make it abundantly clear that the writ petitioner-
respondent’s post was a ‘plan’ post and unless the writ petitioner-
respondent’s appointment was converted into a regular appointment
by appointing him to a regular post against a ‘non-plan’ post, the writ
petitioner-respondent’s appointment was to be over on 28.02.1999.
What logically follows from the above discussion is that the writ
petitioner-respondent could have been adjusted/absorbed against a
‘non-plan’ post, but the question of converting the ‘plan’ post into a
‘non-plan’ post did not arise, because the scheme did not perceive any
such conversion.
16. What is, now, important to note is that the order, dated
17.08.2000, which, according to the writ petitioner-respondent, is the
order of conversion of his plan post into a ‘non-plan’ post, read as
under:
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“OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER,NALBARI (ASSAM)
ORDER
Shri Krishna Haloi, Asst. Teacher of Uttar Kamrup ME
Madrasa School, appointed under “plan” head of account is
hereby converted to “non plan” post vide DEE’s order Memo No.
EAA/75/96 dtd. 17.9.08 vide Sri Durgeswar Sarma A/T, Kawali
ME School retired.
The salary expenditure will be debitable under the Non Plan
Head of accounts.
Sd/- A. Choudhury,Dist. Elementary Education Officer,
Nalbari,Memo No. DEEO/Nal/Convert/28/5127-33, dated 17/8/2000”
17. A bare reading of the order, dated 17.08.2000, aforementioned
clearly shows that the order had been made without the concurrence
of the Department of Finance, Government of Assam, which,
admittedly, could not have been done. As already mentioned above,
there was no question of conversion of a ‘plan’ post into a ‘non-plan’
post, because such conversion would mean creation of a sanctioned
‘non-plan’ post. As there was no creation of any sanctioned post
against ‘plan’ post, the question of conversion of ‘plan’ post into a ‘non-
plan’ post did not arise at all. It is on the basis of such ex facie illegal
order of conversion, dated 17.08.2000, that the petitioner’s
appointment was confirmed in the said post by order dated
31.12.2008, which was issued by the District Elementary Education
Officer, Baska. This order read as under:
“GOVT. OF ASSAM OFFICE OF THE DISTRICT ELEMENTARY EDUCATION OFFICER, BASKA
ORDER
On the strength of order vide Memo No…./17/83-pt/76
dated 18.12.1997, Secretary of Edn. Department to the Govt. of
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Assam..vide of Sri Krisna Haloi, A/T of Uttar Kamrup M.E.
Madrassa, Naoshali, under Baska Block is hereby confirmed his
service as he is holding the post with effect from 01.12.98.
Sd/- illegibleDistrict Elementary Education officer,
Baska”
18. The order, dated 31.12.2008, similar as the order, dated
17.08.2000, aforementioned, shows that the order, dated 31.12.2008,
had no concurrence of the Department of Finance, Government of
Assam. Thus, the regular appointment of the writ petitioner-
respondent was, admittedly, without approval of the State Level
Empowered Committee and without concurrence of the Department of
Finance, Government of Assam. This apart, as the appointment was
not against any sanctioned ‘plan’ post or against any regularly
sanctioned post, the appointment could not have continued beyond
the scheme, which has been referred to as OBB.
19. Even if, therefore, one assumes, for a moment, that the writ
petitioner-respondent’s appointment had been preceded by an
advertisement, the fact of the matter remains that the writ petitioner-
respondent’s appointment, having preceded by an advertisement, was
against a ‘plan’ post, which was to continue till 28.02.1999 and,
thereafter, the petitioner-respondent was required to be adjusted/
absorbed in the existing vacancy. However, the petitioner-respondent
was, admittedly, not absorbed/adjusted against any existing vacancy.
What was done was mere issuance of an order of conversion of his
‘plan’ post into a ‘non-plan’ post without any concurrence from the
Department of Finance, Government of Assam, though a regular
sanctioned post could not have been created without the concurrence
of the Finance Department.
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20. When asked by this Court as to how the petitioner-respondent’s
‘plan’ post came to be converted into a ‘non-plan’ post without
concurrence of the Department of Finance, Government of Assam,
nothing could be submitted on behalf of the writ petitioner-
respondent. The learned Single Judge, while allowing the writ petition,
appears to have omitted to note this glaringly noticeable aspect of the
writ petitioner’s case.
21. From a reading of the order, dated 28.07.2011, whereby the
writ petition was allowed, it is clear that the learned Single Judge had
noticed that the writ petitioner’s appointment was under Operation
Black Board, but the error was committed by the learned Single Judge
by treating the appointment of the writ petitioner as a regular
appointment against a sanctioned post and thereby not noticing the
fact that the writ petitioner’s appointment was inherently temporary in
nature, dependent upon the scheme, which had been floated by the
Central Government under a Centrally Sponsored Scheme known as
Operation Black Board (OBB). Mere receipt of regular salary by the
petitioner, as an Assistant Teacher, cannot make his order of
appointment legal if the same was, otherwise, illegal as in the case at
hand. The submissions of Ms. Bordoloi, learned counsel for
respondent Nos. 2 and 3 in the writ petition, that since the
appointment of the writ petitioner was illegal, all subsequent orders,
such as, order for payment of salary to the writ petitioner, order
confirming his service, etc., are non est in law, had substantial force,
but were not appropriately appreciated by the learned Single Judge.
The observations made, and the law laid down, in Mohd. Abdul Kadir
and another vs. Director General of Police, Assam and others,
reported in (2009) 6 SCC 611, are aptly applicable to the facts of the
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WA No. 334 of 2011
present case. The relevant observations made, in Mohd. Abdul Kadir
(supra), read as under:
“13. The fact that the appellants were employed under the PIF
Additional Scheme is not disputed. The duration of the PIF
Additional Scheme under which they are employed was initially
two years, to be reviewed for continuation along with the original
PIF Scheme. The said Scheme is being extended from time to time
and is being continued. If the temporary or ad hoc engagement or
appointment is in connection with a particular project or a specific
scheme, the ad hoc or temporary service of the persons employed
under the project or scheme would come to an end, on
completion/closure/cessation of the project or the scheme.
14. The fact that the Scheme had been in operation for some
decades or that the employee concerned has continued on ad hoc
basis for one or two decades would not entitle the employee to
seek permanency or regularisation. Even if any posts are
sanctioned with reference to the Scheme, such sanction is of ad
hoc or temporary posts coterminous with the Scheme and not of
permanent posts.
15. On completion of the project or discontinuance of the scheme,
those who were engaged with reference to or in connection with
such project or scheme cannot claim any right to continue in
service, nor seek regularisation in some other project or service.
[See Bhagwan Dass v. State of Haryana, Delhi Development
Horticulture Employees' Union v. Delhi Admn., Hindustan Steel
Works Construction Ltd. v. Employees' Union, U.P. Land
Development Corpn. v. Amar Singh, Madhyamik Shiksha
Parishad, U.P. v. Anil Kumar Mishra, State of Karnataka v.
Umadevi (3), Indian Council of Medical Research v. K.
Rajyalakshmi and Lal Mohammad v. Indian Railway Construction
Co. Ltd.] In view of this settled position, the appellants will not be
entitled to regularisation.”
22. From the above observations, made in Mohd. Abdul Kadir
(supra), what becomes clear is the fact that, when an appointment is
made under a scheme, which is temporary in nature, continuation of
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WA No. 334 of 2011
the scheme for decades would not change the nature of appointment
and would not entitle a person to seek regularization in service. In the
case at hand, if the writ petitioner-respondent was to be continued in
service, then, he ought to have been appointed against a regular
sanctioned ‘non-plan’ post. This apart, even such an appointment
would have required fulfillment of the conditions of recruitment to the
post of Assistant Teacher, which has, admittedly, not been done in the
present case.
23. While considering the impugned judgment, we notice that the
learned Single Judge has observed, in the order, dated 28.07.2011,
that the writ petitioner’s appointment was against a substantive
vacancy and against regular pay scale. In fact, the learned Single
Judge has mentioned, in the judgment under appeal, that, initially,
the appointment of the writ petitioner was against a ‘plan’ post, but
the same was brought under ‘non-plan’ post by order, dated
17.08.2000. We notice that the learned Single Judge did not make
enquiry as to how the ‘plan’ post came to be converted into a ‘non-
plan’ post. Even when asked in the appeal at hand, the writ
petitioner-respondent had no answer. This, in itself, shows that the
‘plan’ post could not have been converted into a ‘non-plan’ post in the
manner as has been done in the present case.
24. Yet another reason, assigned by the learned Single Judge, is
that the writ petitioner had been in continuous service for the last
10 (ten) years. We hold, in this regard, that the length of period of an
illegal appointment cannot clothe the appointment with legality and
when the appointment of the writ petitioner had been against a ‘plan’
post and the same was illegally converted into a ‘non-plan’ post, the
fact that he had continued in service for 10 years would be of no
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WA No. 334 of 2011
consequence at all. (See Mohd. Abdul Kadir and another vs.
Director General of Police, Assam and others, reported in (2009) 6
SCC 611)
25. In support of the appellant’s case that as the order of
termination was not preceded by any notice to show cause, the
termination was illegal, Mrs. Saikia, learned counsel, has relied upon a
number of judgments, namely, Harbhajan Singh and others vs.
Nawanshahar Central Coop. Bank, reported in (2004) 10 SCC 606,
Aswani Kumar and others vs. State of Haryana and others,
reported in (2005) 12 SCC 428, University of Bihar and others vs.
Kamal Deo Thakur and others, reported in (2005) 9 SCC 278,
Mohd. Yunus Khan vs. State of Uttar Pradesh and others, reported
in (2010) 10 SCC 539, and Satwati Deswal vs. State of Haryana and
others, reported in (2010) 1 SCC 126.
26. While considering the decisions, which have been relied upon by
Mrs. Saikia, learned counsel, it needs to be noted that all the cases,
relied upon by Mrs. Saikia, are cases relating to misconduct. A
misconduct is required to be proved by a regular enquiry and the
enquiry can be held only upon serving charge-sheet on the employee
concerned provided that the employee denies the charge. As no
enquiry had been held in the cases relied upon by Mrs. Sailia, learned
counsel, the principle of natural justice was, obviously, held to have
been violated, when the employee concerned had denied the charge
and pleaded innocence and, on this ground, the orders of termination,
in the said cases, were set aside. The present one is not a case of
misconduct; rather, the present one is a case of appointment of a
person, which is per se illegal and when questioned, the writ
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petitioner-respondent could not justify the conversion of the post from
‘plan’ post to a ‘non-plan’ post.
27. In the circumstances, as indicated above, we find no force in the
contention of Mrs. Saikia that the order of termination was bad in law,
because no notice to show case was given to the writ petitioner-
respondent. The absence of notice would have become material, had
the petitioner been able to tell this Court, when questioned, as to what
he would have said as regards the conversion of his ‘plan’ post into a
‘non-plan’ post and, that too, without the concurrence of the
Department of Finance of the State Government concerned. On this
aspect of the appeal, our observations, made in paragraph 6 of this
judgment, are also of great relevance.
28. What is, now, required to be noted is that the writ petitioner-
respondent’s appointment, by way of conversion of a ‘plan’ post to a
‘non-plan’ post, was illegal and since such conversion was ex facie
illegal, it did not bind the Government to maintain the order of
appointment of the writ petitioner-respondent.
29. One of the specific grounds of the termination of the writ
petitioner-respondent’s appointment was that the writ petitioner’s
appointment was without issuance of any advertisement by the
authority concerned. We have minutely perused the entire writ
petition and we do not find that the writ petitioner-respondent has
asserted in his writ petition, even mildly, that his appointment was
made following any advertisement. Even when questioned in this
appeal, nothing could be shown to have been pleaded or placed on
record indicating that his appointment, under the Centrally Sponsored
Scheme, commonly known as Operation Black Board, was pursuant to
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any advertisement. The writ petitioner-respondent was, thus,
appointed by adopting a pick and choose method. Such an
appointment is clearly against the fundamental guarantees of equality
of employment under Article 14 and 16 of the Constitution of India,
which need to be scrupulously followed inasmuch as these two Articles
make it clear that no public employment shall be made without giving
all eligible candidates to have an opportunity to offer themselves for
selection and appointment. The reliance, placed by Mr. Das, learned
counsel, appearing on behalf of the Bodoland Territorial Council, on
the case of Government of Andhra Pradesh and others versus K.
Brahmanandam and othrs, reported in (2008) 5 SCC 241, is not
wholly incorrect. Mr. Das is also correct in referring to the case of
State of Bihar and others versus Kameshwar Prasad Singh and
another, reported in (2000) 9 SCC 94.
30. Though it has been submitted by Mrs. Saikia that similar
appointments had been made and have not been interfered with by the
Court, suffice it to point out that the concept of equality, guaranteed
by Article 14, is a positive concept and it cannot be enforced in a
negative manner. When any authority is shown to have committed
any illegality or irregularity in favour of any individual or group of
individuals, others cannot claim the same illegality or irregularity to be
extended to them on the ground of denial of similar treatment. The
mere fact, therefore, that in some cases, the Government has not yet
interfered with the order of appointment of the same nature, as is the
nature of appointment of the present appellant, can be of no avail to
the writ petitioner-respondent. Reference may be made, in this regard,
as has been done rightly by Mr. Das, learned counsel, to the case of
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State of Bihar versus Upendra Narayan Singh and others, reported
in (2009) 5 SCC 65 (See paragraph 33 to 38, 43, 44).
31. It may be pointed out here that, in State of Orissa and another
versus Mamata Mohanty, reported in (2011) 3 SCC 436, it has been
clearly held that once a Court comes to the conclusion that a wrong
order has been passed, it becomes the solemn duty of the
Court to rectify the wrong rather than perpetuating the same. See also
State of Manipur and others versus Y. Token Singh and others,
reported in (2007) 5 SCC 65.
32. In short, the mere fact that an authority has passed a particular
order in the case of another person, similarly situated, cannot be a
ground for issuing a writ in favour of the petitioner on the plea of
discrimination if the order, passed in favour of the other person, is
found to be contrary to law or not warranted in the facts and
circumstances of the case. Noticing that the High Courts, in exercise of
their writ jurisdiction, have been passing orders to remove
discrimination and thereby asking the authorities concerned to repeat
the illegality, the Supreme Court has expressed its anxiety on such
approach and has laid down the position of law, in Chandigarh
Administration & Anr. vs. Jagjit Singh and Anr., reported in (1995)
1 SCC 745, in the following words:
“8. We are of the opinion that the basis or the principle, if it can be
called one, on which the writ petition has been allowed by the
High Court is unsustainable in law and indefensible in principle.
Since we have come across many such instances, we think it
necessary to deal with such pleas at a little length. Generally
speaking, the mere fact that the respondent authority has
passed a particular order in case of another person
similarly situated can never be the ground for issuing a
writ in favour of the petitioner on the plea of
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discrimination. The order in favour of the other person
might be allowed and valid or it might not be. That has to
be investigated first before it can be directed to be followed
in the case of the petitioner. If the order in favour of the
other person is found to be contrary to law or not
warranted in the facts and circumstances of his case, it is
obvious that such illegal or unwarranted order cannot be
made the basis of issuing a writ compelling the respondent
authority to repeat the illegality or to pass another
unwarranted order. The extraordinary and discretionary
power of the High Court cannot be exercised for such a
purpose. Merely because the respondent authority has
passed one illegal/unwarranted order, it does not entitle
the High Court to compel the authority to repeat the
illegality over again and again. The illegal/unwarranted
action must be corrected, if it can be done according to law-
indeed, wherever, it is possible, the Court should direct the
appropriate authority to correct such wrong orders in accordance
with law – but even if it cannot be corrected, it is difficult to see
how it can be made a basis for its repetition. By refusing to direct
the respondent authority to repeat the illegality, the Court is not
condoning the earlier illegal act/order nor can such illegal order
constitute the basis for a legitimate complaint of discrimination.
Giving effect to such please would be prejudicial to the interests of
law and will do incalculable mischief to public interest. It will be a
negation of law and the rule of law. Of course, if in case the order
in favour of the other person is found to be a lawful and justified
one it can be followed and similar relief can be given to the
petitioner if it is found that the petitioners’ case is similar to the
other persons’ case. But then why examine another person’s case
in his absence rather tan examining the case of the petitioner who
is present before the Court and seeking the relief. Is it not more
appropriate and convenience to examine the entitlement of the
petitioner before the Court to the relief asked for in the facts and
circumstances of his case, than to enquire into the correctness of
the order made or action taken in another person’s case, which
other person is not before the case nor is his case. In our
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considered opinion, such a course – barring exceptional situations
– would neither be advisable nor desirable. In other words, the
High Court cannot ignore the law and the well-accepted
norms governing the writ jurisdiction and say that because
in one case a particular order has been passed or a
particular action has been taken, the same must be
repeated irrespective of the fact whether such an order or
action is contrary to law or otherwise. Each case must be
decided on its own merits, factual and illegal, in accordance with
relevant legal principles. The orders and actions of the authorities
cannot be equated to the judgments of the Supreme Court and
High Courts nor can they be elevated to the level of the
precedents, as understood in the judicial word. (What is the
position in the case of orders passed by authorities in exercise of
their quasi-judicial power, we express no opinion. That can be
dealt with when a proper case arises”. (Emphasis is added)
33. Because of what have been discussed and pointed out above, we
find ourselves constrained to interfere with the impugned order, dated
28.07.2011, whereby the writ petition was allowed. This writ appeal,
therefore, succeeds and the impugned order, dated 28.07.2011, is
hereby set aside.
34. No order as to costs.
JUDGE JUDGE
rk-njdutt22112
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