WP(C) 6217/2007 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. RP Sarma, learned Sr. Counsel, assisted by Mr. D. Dole y, learned counsel for the petitioner. Also heard Ms. C. Chakraborty, learned Ad ditional Sr. Govt. Advocate, Assam. 2. The petitioner who was admittedly appointed purely on temporary and adho c basis by Annexure-A order dated 23.5.1996 has prayed for reinstatement in the said service by setting aside and quashing the Annexure-G order dated 5.3.2004 b y which her service was dispensed with. Be it stated here that the petitioner wa s appointed by the aforementioned Annexure-A order dated 23.5.1996 issued by the Deputy Commissioner, Nagaon against the vacancy that had occurred due to unauth orized absence of one Shri Dimbeswar Saikia, LDA. Be it also stated here that th e petitioner was not appointed pursuant to any advertisement and selection. 3. In the year 1999 a selection for 23 posts of LDA was conducted. The peti tioner did not respond to the said selection. Her plea is that she was not aware of the selection conducted in the year 1999. 4. When some of the selected candidates felt aggrieved by their non-appoint ment inspite of inclusion of their names in the select list, they approached thi s Court by filing WP(C) No. 3041/2000, in which the present petitioner was also a party respondent. However, before any notice was served on her the writ petiti on was disposed by judgment and order dated 17.7.2003 directing termination of s ervice of the private respondents including that of the present petitioner and f or making appointments from the select list. The said judgment and order dated 1 7.7.2003 was set aside by order dated 28.6.2005 in Review Application No. 25/200 4 on the ground of not serving notice on the present petitioner, who was one of the respondents in the writ petition. 5. In the meantime, the adhoc service of the petitioner was dispensed with by Annexure-G order dated 5.3.2004 which is impugned in this writ petition. Ther e was another writ petition being WP(C) No. 2663/2000 by which implementation of the select list was sought for. The writ petition was filed by one Sri Raj Kuma r Bora. The writ petition was disposed of by judgment and order dated 23.9.2002 with the following observation: For the reasons stated above, I do not find any merit in this writ petition. Ho wever, as the select list in question has been acted upon by the authority as la te as 30.10.2001, it is hereby directed in the event of any vacancy that had occ urred during the period of the validity of the select list, i.e. from 8.6.99 to 30.10.2001, if required to be filled up, shall be so filled up from the select l ist dated 9.6.1999 and not by any other fresh select list. 6. As per the aforesaid observation made in the judgment, the vacancy that had occurred during the validity period of the select list i.e. from 8.6.99 to 3 0.10.2001 was to be filled up from the select list dated 9.6.1999. 7. The other writ petition being WP(C) No. 3043/2000 which was restored by the aforesaid review order was disposed of by judgment and order dated 13.4.2007 dismissing the writ petition on the ground of expiry of the select list. Howeve r, the aforementioned observation made by this Court in WP(C) No. 2663/2000 was reiterated. 8. On perusal of the said judgment and order dated 13.4.2007 passed in WP(C ) No. 3043/2000, it is seen that the plea of the petitioner as has been raised i n the instant writ petition was also raised as the respondent No. 4 and the grie vance of the petitioner was also taken note of in the said judgment and order. T he development relating to filing of the review petition and dispensation of adh oc service of the petitioner were also taken note of. 9. In paragraph 8 of the said judgment and order, the submission made on be half of the present petitioner, who was the respondent No. 4 in the writ petitio n was duly recorded. The submission was that the petitioner was appointed in 199 6 temporarily against the vacancy that had occurred due to unauthorized absence of said Sri Dimbeswar Saikia. It was also recorded that the case of the petition er for regularization of her service was under active consideration of the autho rity. 10. In paragraph 10 of the judgment and order, it has been observed thus: Admittedly, the appointment of the private respondent, Smt. Padma Rani Devi, wa s on stop gap arrangement and not on the basis of any selection for appointment, she cannot claim the post against which she was appointed on adhoc basis. She a lso has no right to claim regularization in service by virtue of such appointmen t, as in that case, it will amount to encouraging back door entry into service. The contention of Ms. Bhuiyan, the learned counsel for the said respondent, that the writ petition deserves dismissal on the ground of suppression of material f acts also cannot be accepted, as the writ petitioners have not suppressed any ma terial fact and the fact about her appointment on adhoc basis, is not a material fact to decide the issue involved in the writ petition and hence non-mentioning of the same does not amount to suppression of material fact. That apart, the or der of subsequent termination of her service has not been challenged. 11. Mr. Sarma, learned Sr. counsel for the petitioner submits that since the very basis of the Annexure-G impugned order dated 5.3.2004 is now non-existent in view of the review order dated 28.6.2005 passed in Review Application No. 25/ 2004 by which the earlier judgment and order dated 17.7.2003 passed in WP(C) No. 3043/2000 was set aside, the petitioner is required to be reinstated in her adh oc service. On the other hand, Ms. Chakraborty, learned State Counsel submits th at irrespective of the aforesaid judgment and order dated 17.7.2003 followed by review order dated 28.6.2005, the petitioner being an adhoc appointee, she canno t claim continuation in such service indefinitely. She further submits that as h as been observed in the aforesaid judgment and order dated 13.4.2007 passed in W P(C) No. 3043/2000, a regular vacancy is required to be filled up through the pr ocess of regular selection as envisaged in the Recruitment Rules and that the pe titioner being an adhoc appointee, cannot seek reinstatement in service and that too after more than 7 years since her service was dispensed with. 12. I have considered the rival submission made by the learned counsel for t he parties and have also perused the materials on record. In the aforementioned judgment and order dated 13.4.2007 passed in WP(C) No. 3043/2000 along with WP(C ) No. 4145/2006, the matter relating to termination of service of the petitioner has been discussed. In this connection, the observation made in paragraph 10 wh ich has been quoted above is significant. The said observation has been made tak ing note of the submissions made by the learned counsel for the petitioner who w as the respondent No. 4 in the said proceeding. 13. It was only after the aforesaid judgment and order dated 13.4.2007, the respondent No. 4 therein filed the instant writ petition challenging the order d ated 5.3.2004. Although the earlier judgment and order dated 17.7.2003 passed in WP(C) No. 3043/2000 was set aside on a review by order dated 28.6.2005 passed i n Review Application No. 25/2004, but in the order, there is no mention of the i mpugned order dated 5.3.2004 (Annexure-G). 14. While it is true that rules of technicality will suggest that the impugn ed order dated 5.3.2004 cannot exist once review order dated 28.6.2005 passed in Review Application No. 25/2004 came into operation upon setting aside the earli er judgment and order dated 17.7.2003 passed in WP(C) No. 3043/2000, but at the same time, this Court cannot be oblivious of the fact that the petitioner was ap pointed purely on temporary and adhoc basis against the vacancy that had occurre d due to unauthorized absence of an incumbent. Setting aside of the impugned ord er dated 5.3.2004 would mean restoration of adhoc and temporary service of the p etitioner which service she had admittedly entered into without any advertisemen t and selection. 15. As noted above, in the judgment and order dated 13.4.2007 passed in WP(C ) No. 3043/2000, this Court has discussed in detail the rules relating to recrui tment. In the instant case, we are concerned with Assam Ministerial District Est ablishment Service Rules, 1967, in terms of which the appointment to the post of LDA is to be made by direct recruitment through process of selection pursuant t o open advertisement and open competition. In the instant case, the petitioner w as appointed against leave vacancy. Her plea that her case was under process for regularization by the appointing authority also cannot be accepted in view of t he fact that regularization is not contemplated in the recruitment rules. 16. Apart from the aforesaid position, it is also not known as to whether th e vacancy that had occurred pursuant to dispensation of the service of the petit ioner has already filled up through the process of direct recruitment as per the provision of the aforesaid rules. Long 7 years has gone by since the service of the petitioner was dispensed with. 17. For all the aforesaid reasons, I am not inclined to issue any direction to the respondents to reinstate the petitioner in her temporary and adhoc servic e. Instead it is hereby directed that the respondents shall fill up the post in accordance with the recruitment rules by way of open competition in which the pe titioner may also participate. This direction will be applicable if in the meant ime the post in question has not been filled up. 18. At this stage, Mr. Sarma, learned Sr. Counsel for the petitioner submits that when the writ petition was filed, the petitioner was 41 years of age. Thus by now she has crossed the age limit. In the event of occasion for initiation o f process of recruitment for the said post and candidature being offered by the petitioner, the authority may examine relaxation of her age in accordance with t he rules. No opinion is expressed in this regard. 19. Writ petition is dismissed, without, however, any order as to cost.