THE HIGH COURT OF SIKKIM ; GANGTOK WRIT PETITION (C) NO. 9 OF 2003 In the m atter of a petition under Article 226 of the C onstitution of India. and in the m atter of Nilam Ghatani, S /o Late C handra Kr. Ghatani, Laboratory Attender, Spices Board at Y akthung House, Tadong, Gangtok E ast Sikkim .... Petitioner VERSUS The Spices Board, Government of India, Ministry of Commerce and Industry, Through its Chairrnein, Sugandha Bhawan, N.H. By-pass, P.B. No. 2277, Palarivattom P.O. Cochin - 682 025. The Secretary, Spices Board, Government of India, Ministry of Commerce, Sugandha Bhawan, National Highway, By-pass, P.B. No. 2277, Palarivattom P.O. Cochin - 682 025. The Deputy Director (Res), Spices Board, ICRI, RRS, Y akthung House, 2^^ Floor, Tadong, P.O. Tadong, E ast Sikkim. The Deputy Secretary, D epartm ent of Personnel, Administrative Reforms & Training, Government of Sikkim, G a n g to k -737 101, E ast Sikkim . .... R espondents For the petitioner For the respondents A. Moulik, Advocate. M essrs S. P. Wangdi, Advocate- GeneraJi with Karm a Thinlay, A ssistant Governm ent Advocate. PRESENT: THE HON^BLE SHRI JUSTICE R. K. PATRA, CHIEF JUSTICE. THE HOFTBLE SHRI JUSTICE N SURJAMANI SINGH, JUDGE. D ate o f ju d gm en t: 21"^ M ay, 2 0 0 4 . J U D G M E N T R. K. PATRA. C.J. In this writ petition the petitioner seeks quashing of the m em orandum dated 21.3.2003 (annexure 7) by which his services as a Laboratory A ttender have been term inated w.e.f. 31.3.2003. 2. The case of the petitioner is th at he after passing Class XII exam ination got his nam e registered with the Employment Exchange at Gangtok as a non-local unem ployed person. The Secretary of the Spices Board (respondent no. 2) in his letter dated 4.6.1997 (annexure 1) requested the Deputy Secretary, D epartm ent of Personnel, Administrative Reforms and Training, governm ent of Sikkim, Gangtok (respondent no. 4) to forward list of suitable candidates for filling up three vacancies in the posts of Laboratory Attenders. Requisition v/as also sent to the local Employment Exchange indicating the above vacancy position and to sponsor suitable candidates. On receipt of the letter (annexure 1) the state governm ent forwarded a list of candidates including the petitioner to the appropriate authority. The A ssistant Director (Per) of the Spices Board in m em orandum dated 16.9.1997 (annexure 2) directed the petitioner to appear for a test/interview for the post of Laboratory Attender on 14.10.1997. Accordingly he appeared in the interview and having been found qualified, was appointed as per memoreindum dated 31.10.1997 (annexure 3) as a Laboratory Attender in the Spices Board in the scale of pay of Rs.775-12-955-EB-14-1025 (pre-revised). He joined the post in the Office of Deputy Director (Res), Spices Board on 13.11.1997. In paragraph 2(i) of the appointm ent order, it was m entioned th at the post was tem porary and the appointee would be on probation for two years from the date of his joining. On 13.11.1999 he completed the probationary period of two years. While the m atter stood thus, the petitioner received m em orandum dated 11.11.1999 (annexure 4) intim ating to him th at his tem porary appointm ent as Laboratory Attender was against a vacancy resulting from promotion m ade under the DBT project “Tissue Culture Large-Cardamom Product Plan” upto 31.3.2001 and as such his appointm ent was upto 31.3.2001. On receipt of the above m em orandum the petitioner subm itted a representation on 30.11.1999 to the Secretary, Spices Board (respondent no. 2) urging th at his appointm ent was not in any project nor was it upto 31.3.2001. W hen he protested at the above term s and conditions by m aking another representation, he was again informed th at his appointm ent was under the aforesaid project and his services would stand term inated w.e.f. 31.3.2001. He continued in the post even after March 2001 but he was shocked to receive the im pugned order. 3. The contesting respondents have filed their counter-affidavit. Their case is th at the petitioner and Birendra Daingal (petitioner in writ petition no. 8 of 2003) were the two candidates selected for appointm ent as Laboratory A ttenders. The third vacancy could not be filled up in the first instance due to non-availability of suitable candidates. Therefore it was again advertised. Having regard to the economy considerations the said vacancy (third) w as eventually not filled up. By sheer inadvertence and oversight the actual position with regard to the nature of the posts of Laboratory A ttenders was not m entioned in the letter (annexure 1) and requisition as well as in the appointm ent order (annexure 3). Three vacancies in the posts of Laboratory A ttenders arose due to tem porary promotion of Laboratory A ttenders as Junior Technical A ssistants under the DBT project “Tissue Culture Large- Cardamom Product Plan” sanctioned by the D epartm ent of Bio-Technology of the Ministry of Science and Technology, Government of India. The period of the project as sanctioned by the Ministry was for five years ending on 31.3.2001. When the period of the project was to expire on 31.3.2001. the two Laboratory A ttenders who were prom oted as Junior Technical A ssistants were liable to be reverted as Laboratory A ttenders on 31.3.2001. The tenure of the project was further extended from 1.4.2001 till 31.3.2003. Ultimately, with the final expiry of the period the Laboratory Attenders who were prom oted as Junior Technical A ssistants were to be reverted as Laboratory A ttenders and therefore the service of the petitioner was to be brought to an end. 4. The short question th at arises for consideration is w hether the appointm ent of the petitioner was against a substantive post in the regular establishm ent or w as it under the DBT project “Tissue Culture Large-Cardamom Product Plan”. Admittedly in the letter w ritten to the Deputy Secretary (annexure 1) and in the requisition sent to the Employment Exchange there was no indication about the nature of posts of Laboratory Attenders. Even in the appointm ent order issued to the petitioner there was no mention th at his appointm ent was in any project. On the contrary it was indicated therein th at the post of Laboratory Attender was a tem porary one and the appointee would be on probation for a period of two years from the date of his joining the post. The stand of the Spices Board is th at by m istake and through inadvertence the actual position with regard to the nature of post of Laboratory A ttenders w as not stated in any of the above docum ents. Can it be said th at the stand taken by the contesting respondents in the counter-affidavit th at the appointm ent of the petitioner was in the project is an after-thought? From the m aterials as available on record we cannot hold th at the plea of the Spices Board is an after-thought or a false one. This is quite evident from the m em orandum issued as back as on 11.11.1999 (annexure 4) wherein it was clearly brought out that the appointm ent of the petitioner as Laboratory Attender was against a vacancy resulting from promotion m ade under the DBT project “Tissue Culture Large-Cardamom Product Plan”. By this time there was no cloud of litigation hovering around the parties. The above project which was upto 31.3.2001 later came to be extended for a further period of two years, i.e., upto 31.3.2003. The vacancies arose consequent upon tem porary promotion of three of the regular Laboratory A ttenders as Junior Technical A ssistants under the aforesaid project. With the closure of the project those tem porary prom otees were liable to be reverted to their substantive posts of Laboratory Attenders. Therefore the petitioner who was temporarily appointed in the tem porary vacancy of Laboratory A ttender had to face retrenchm ent. The appointm ent of the petitioner as Laboratory Attender was co-terrninus with the tenure of the project. With the closure of the project the service of the petitioner had to be brought to an end. In these circum stances, we do not find any illegality in the im pugned order. 5. During the pendency of the writ petition, we w anted to know as to w hether any schem e has been m ade ^by the Spices Board to accom m odate the retrenched personnel like the petitioner. The Secretairy of the Spices Board in letter dated 16.4.2004 informed this Court th at no such schem e has been m ade. In the said letter, it was stated th at there is no vacancy at present to absorb the petitioner against any regular post. We may note th at petitioner served the Spices Board for about six years and in the m eantim e he has become over-aged for any other employment. We therefore direct the contesting respondents to consider first the case of the petitioner for appointm ent in the event vacancy arises in any post in the category of Group D in the near future not as a fresh candidate b u t as a retrenched hand. 6 . In the result, the writ petition is dism issed being devoid of m erit. There shall be no order as to costs. ^ , I agree. • * -at' Dictation taken & typed by me Dipak Saha ( R, K. jPatra ) Chief Justice 2 1 .0 S.2 0 0 4 ( N, Surjam^ni Singh ) Judge 2 1 .0 5 .2 0 0 4