Principal of legitimate expectation cannot arise out of contractual or temporary employment: Gauhati High Court

 Page No.# 1 12 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 956 2016 RAJKUMAR KACHARI and 2 ORS S O LT. HARESWAR KACHARI R O HENGRABARI NABANAGAR P.O. HENGRABARI P.S. DISPUR DIST. KAMRUP M ASSAM 2: SRI BIREN RABHA S O LT. TULSI RAM RABHA R O JAPORIGOGH KRISHNANAGAR P.O. JAPORIGOGH P.S. DISPUR DIST. KAMRUP M 3: SRI RAM CHARAN RABHA S O LT. GANESH RABHA R O NICHINPUR P.O. BIRPARA P.S. BOKO DIST. KAMRUP THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM WPT and BC DEPARTMENT DISPUR GUWAHATI 6 2:THE PRINCIPAL SECRETARY FINANCE DEPARTMENT GOVT. OF ASSAM GUWAHATI 6 3:THE ASSAM TRIBAL DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECRETARY R.P. ROAD GUWAHATI 6 4:THE CHIEF EXECUTIVE OFFICER ASSAM TRIBAL DEVELOPMENT AUTHOIRTY R.P. ROAD GUWAHATI 6 Page No.# 2 12 WPT and BC DEPARTMENT GUWAHATI6 Advocate for the Petitioner : MR.F U BORBHUIYA Advocate for the Respondent : GA ASSAM Linked Case : WP(C) 2321 2018 RAJKUMAR KACHARI AND 3 ORS S O LT HARESWAR KACHARI R O HENGRABARI NABANAGAR P.O. HENGRABARI P.S. DISPUR DIST KAMRUP1216 2016 FAKAR UDDIN AHMED S O LT. ABDUR RAHMAN VILL. SUNDARBAN NAGAR NABARATNA PATH Page No.# 4 12 P.O. KAHILIPARA P.S. HATIGAON DIST. KAMRUP M GHY 19 THE STATE OF ASSAM AND 4 ORS REP.BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM WPT and BC DEPTT GHY 6 2:THE PRINCIPAL SECRETARY GOVT. OF ASSAM GHY 6 3:THE ASSAM TRIBAL DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECY R.P. ROAD GHY 6 4:THE CHIEF EXECUTIVE OFFICER ASSAM TRIBAL DEVELOPMENT AUTHORITY R.P. ROAD GHY 6 5:THE DIRECTOR WPT and BC DEPTT GHY 6 Advocate for : MR.F U BORBHUIYA Advocate for : appearing for THE STATE OF ASSAM AND 4 ORS B E F O R E HON’BLE MR. JUSTICE KALYAN RAI SURANA For the petitioners: Mr. H.R.A Choudhury Senior Advocate Mr. F.U. Borbhuiya. Mr. R.A. Choudhury Ms. S. Das Advocates For respondent no. 1 and 5: Mr. G. Bordoloi Govt. Advocate For respondent no. 2: Mr. B. Gogoi SC. Finance Dept Page No.# 5 12 For respondent no.3& 4: Mr. R.K.D. Choudhury R. Dhar S.C Date of hearing: 09.03.2021 Date of judgment: 09.06.2021 JUDGMENT AND ORDER Heard Mr. H.R.A. Choudhury learned senior counsel assisted by Mr. F.U. Borbhuiya learned counsel for the petitioners. Also heard Mr. G. Bordoloi learned Govt. Advocate for respondent nos.1 and 5 Mr. B. Gogoi learned standing counsel for the Finance Department and Mr. R.K.D. Choudhury along with Mr. R. Dhar learned standing counsel for the WPT&BC Department respondent nos. 3and 4 2) In the present case is hand the issue regarding non regularization of the petitioners to the post of driver in the Assam Tribal Development Authorityis involved. Therefore as the case is ready as regards service and the respondent nos. 3 and 4 have filed their affidavit in opposition at the insistence of the learned counsel for all sides the matter has been heard in the ‘admission’ 3) The grievance of the three petitioners in WP(C) 956 2016 and the sole petitioners in WP(C) 1216 2016 is that WPT & BC Department had arbitrarily rejected the proposals dated 14.07.1994 05.04.2011 and 20.04.2015 submitted by the ATDA for creation of posts of driver to accommodate the petitioners by regularising their services. In connection with both the said writ petitions a common order dated 03.11.2017 was passedby this Court The relevant part of the said order is quoted below: “In view of such provisions of Section 12 of the Act the reasons stated in order dated 21.12.2015 that the posts of Driver had not been approved is inadequate to reject the claim of the petitioners for regularization of their services In view of above it is directed that the WP(T) & BC Department shall take a decision as to whether the decision of the authority taken u s 12 requiring the four posts of driver in to be approved or not. In doing so the Government in the WP(T Page No.# 6 12 BC Department shall give its own reason either accepting or rejecting the case for approval. If the WP(T) & BC Department is of the view that the concurrence of the Finance Department or any other department is required to be obtained the same being an inter departmental requirement for a correspondence the Department shall do the needful to arrive at its decision List the matter again on 05.01.2018 to enable the WP(T) & BC Department to take the appropriate decision.” 4) Pursuant to the aforesaid order the WPT & BC Department by a speaking order bearing No.TAB BC 224 2011 219 dated 03.01.2018 rejected the proposal for regularization on the ground that the appointments were sought to be made in the non sanctioned and non existing post and without prior concurrence or approval of the State Govt. The three petitioners in W.P.(C) 956 2016 and the sole petitioner in W.P.(C) 1216 2016 have now jointly filed WP(C) 2321 2018 in order to assail the herein before referred order dated 03.01.2018. 5) The learned senior counsel for the petitioners has submitted that in the present case in hand previously there was no vehicle allotted to the ATDA. However subsequently the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA. Therefore the petitioners were engaged in service as drivers. It is submitted that from time to time communications were exchanged for sanctioning the creation of the posts of drivers and to regularise the service of the petitioners and in this regard reference is made to communications dated 14.07.1994 30.01.2001 26.06.2001 26.06.2002 03.06.2008 08.01.2013 and 08.04.2015. It is submitted that in this case instead of creating the posts of drivers the ATDA had extracted service from the petitioners. Accordingly by placing strong reliance on the case of Nihal Singh Vs. State of Punjab & Ors. 14 SCC 65 it has been submitted that as the petitioners are rendering service this is a fit case for issuing a direction to the respondents to regularise the service of the petitioners with retrospective effect by providing ex post facto sanction of the posts of drivers in the establishment of the respondent no.3 i.e. ATDA in terms of communications dated 14.07.1994 30.01.2001 26.06.2001 26.06.2002 03.06.2008 08.01.2013 and Page No.# 7 12 08.04.2015. The learned senior counsel for the petitioners has further submitted that the petitioners are also entitled to monthly salary from the month of December 2017 onwards till date after taking into account the due increments along with other financial benefits 6) While the learned State counsel appearing for the respondent no.1 and the learned standing counsel for the respondent no. 2 have opposed this application by submitting that the Government had not accorded sanction for creation of the posts of drivers as such the Government cannot be burdened with the liability to pay monthly salary to the petitioners. The learned departmental standing counsel appearing for respondent nos 3 and 4 has referred to the affidavit in opposition filed by the respondent nos. 3 and 4 and he had made his submissions thereby supporting the claim of the petitioners. It is submitted that the respondent nos. 3 and 4 have repeatedly send proposals before the appropriate and competent authority of the State for according sanction for creation of posts of drivers and to regularise the service of the petitioners. 7) The core issue for consideration of the Court is whether the petitioners who claim to be initially appointed by respondent no.4 in the pay scale of Rs.420 to 750 per month are entitled for a direction from the Court upon the respondents to regularise the service of the petitioners with consequential benefits like pension etc 8) It is seen that in Section 12 of the Assam Tribal Development Authority Act 1983 it is provided as follows: “12. The Authority may have such staff as may be decided by the Authority with the approval of the Government.” 9) Therefore there is no doubt that subject to approval of the State Government the respondent no.3 had the power and authority to have such staff as may be decided by the authority. Therefore according to the opinion of the Court the provisions of Section 12 of the Assam Tribal Development Authority Act 1983 envisages prior approval of the Government regarding creation of posts or appointment of staff before appointments are Page No.# 8 12 actually made. The Court is unable to accept that the intent and purport of Section 12 is to enable the respondent nos. 3 and 4 to first make appointment and then to seek post facto approval from the Government. On a perusal of the documents annexed to the writ petition there is absence of materials to show that the State Government had accorded sanction for creation of the post of ‘driver’ in the establishment of the respondent no.3 i.e. ATDA. In the herein before referred order no. TAD BC 224 2011 219 dated 03.01.2018 issued by Secretary to the Govt. of Assam WPT & BC Department it has been specifically mentioned that the ATDA had appointed the following petitioners in W.P.(C) 2321 18 namely Biren Rabha Ram Charan Rabha petitioner no.3) and Md. Fakaruddinover and above the posts created for the office of the ATDA. There is no material on record to controvert the said position 10) Moreover from the documents annexed to the writ petition it is seen that there is nothing on record to show that the respondent nos. 3 and 4 had conducted any recruitment drive through transparent pubic process inviting applications from the public for appointment to the posts of driver. Hence the only conclusion that can be drawn by the Court is that the petitioners were not regularly selected and appointed to the posts of driver in the ATDA. Nonetheless there is no dispute at the Bar that the petitioners have been rendering their services in ATDA as driver since the date of their respective appointment till date and that the ATDA had extended to the petitioners the benefit of regular pay scale Moreover as it is seen that the petitioners have not been selected and appointed in sanctioned and vacant posts the petitioners cannot be said to have the status of permanent employee in the establishment of respondent no.3 i.e. ATDA. Thus the petitioners may be said to have temporary casual or contractual employment for all intents and purpose but not permanent employment in the absence of appointment to a sanctioned and vacant posts of 11) In case of Nihal Singhthe appellants therein were selected and appointed in exercise of power under Section 17 of the Police Act 1861 as such the Page No.# 9 12 appointments were held to be in consonance with the statutory provisions because the decision to resort to the procedure adopted was taken at the highest level of the State by conscious choice. The appointments were made pursuant to a sanctioned selection process The appointments were found to be necessitated owing to need to obtain services of persons who had the experience and training in handling extraordinary situation of dealing with armed miscreants. After selection the selected persons were given training in use of arms. It is further seen that on consideration that in the said case the financial implication was not on the State but creation of new posts was found to create financial burden on various banks who were utilizing services of the Special Police Officers and under those circumstances the Supreme Court of India had issued direction to the State of Punjab to regularise the service of the appellants by creating necessary posts and it was ordered that pursuant to regularisation the appellants would be entitled to all the benefits of services attached to the posts which are similar in nature already in cadre of the police service of the State 12) Fact situation similar to the case of Nihal Singhis not found to exist in the present case in hand. In this case there was no selection process as such the petitioners appear to be chosen arbitrarily in exclusion to other eligible persons. The appointment was not sanctioned by law as no post of driver was sanctioned and created pursuant to the orders of the Government. In the absence of sanctioned and retained posts the Court is of the considered opinion that the State Government cannot be compelled to absorb the petitioners into the service of the State by paying salary and other emoluments Thus the ratio of the case of Nihal Singhis not found to help the petitioners in any manner. Accordingly the order no. TAD BC 224 2011 219 dated 03.01.2018 impugned in W.P.(C) 2321 2018 does not warrant any interference by the Court 13) On a query by the Court it has been informed that the respondent no.3 operates on the basis of grants provided by the State Government and that such grant is inclusive of money against salary payable to employees working in specific sanctioned and retained posts. Thus when the Government has not created posts of drivers for the establishment of ATDA if any order is passed for regularising the services of the petitioners there would be additional financial implication on the State Government. Page No.# 10 12 14) In light of observations made in paragraph 47 of the case of Secretary State of Karnataka Vs. Umadevi & Ors. 4 SCC 1it can be culled out that when a person enters a temporary employment or gets engagement as a contractual casual worker and the engagement is not based on a proper selection as recognized by the relevant Rules or procedure he is aware of the consequences of the appointment being temporary casual or contractual in nature and that such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection. In light of the law laid down by the Supreme Court of India in the case of Umadevithe Court is constrained to hold that the petitioners are not found entitled to any order from the Court for regularisation of their respective services 15) Accordingly as the petitioners have rendered their services to the respondent no.3 authority since their respective dates of joining as drivers as already indicated herein before by treating the petitioners as temporary casual or contractual employment for the purpose of this order this appears to be a fit case to apply the principles laid down by the Division Bench of this Court in the case of State of Assam Vs. Upen Das 5 NEJ 553 this Court had observed as follows in para 22 and 23: “22. It is however heartening to learn that the State Government has agreed not to terminate the Muster Roll Work Charged and similarly placed employees working since last more than 10 yearstill their normal retirement except on disciplinary ground or on ground of criminal offences. The State Government has also agreed to enlist such employees in Health and Accidental and Death Insurance Scheme which will be prepared in consultation with the State Cabinet. We appreciate this positive stand of the State Government taken as welfare measures for the betterment and security of the employees in question. We accordingly direct the State Government to implement the measures without further delay. Besides this we in the light of decision of the Supreme Court in State of Punjab v. Jagjit Singh 1 SCC 148 also direct the State Government to pay minimum of the pay scale to Muster Roll workers Work Charged workers and similarly placed employees working since Page No.# 11 12 last more than 10 yearswith effect from 1.8.2017. 23. For these reasons we are of the view that in the fact situation of the case Muster Roll workers Work Charged workers and Casual workers are not entitled for regularization of their services with consequential benefits such as pension etc. We accordingly subject to our direction in paragraph 22 of the judgment allow the appeal and set aside the impugned judgment and order dated 20.12.2013 passed by the learned Single Judge.” 16) In the present case in hand the petitioners are not found entitled to regularization of their services with consequential benefits such as pension etc. Accordingly the prayer for regularization is refused. However in order to ensure welfare measures to the petitioners who have rendered long years of service to the respondent no.3 i.e. Assam Tribal Development Authority in a non sanctioned post the Court by following the decision rendered in the herein before referred case of Upen Dasis inclined to direct the State Government to implement the welfare schemes by enlisting the petitioners in Health and Accidental and Death Insurance Scheme. Besides in the present case in hand. Moreover as the petitioners are presently being paid their salary as per their pay scale and considering that that the letter of appointment of thepetitioner no.1 was issued on 27.09.1985(ii) petitioner no.2 was issued on 12.02.1986 petitioner no.3 was issued on 27.02.1989 andpetitioner no.4 was issued on 05.01.1996 and since then they have rendered service in a non sanctioned post the Assam Tribal Development Authoritybeing the authority functioning under the Welfare of Plain Tribes and Backward Classes Department are directed to continue to pay to the petitioners their salary as per their last pay scale. In the event the claim made in W.P C) 2321 18 that the petitioners have not been paid their salary since the month of December 2017 is true the respondents shall release the arrear salary as per last pay scale drawn within a period of 4months from the date of service of a certified copy of this order upon the respondent no.4. The current salary shall however be paid as and when due 17) Before parting with the records it is made clear that this order shall not stand as an impediment for the respondents to take lawful steps to regularize the services of the petitioners if so permitted in accordance with the law holding the field. Page No.# 12 12 18) The petitioners are not found entitled for quashing of the order dated 03.01.2018 impugned in W.P.(C) 2321 18 or to any order from the Court for regularisation of their respective services as such the writ petition stands partly allowed to the extent as indicated herein below: a. The respondents would implementthe welfare schemes by enlisting the petitioners in Health and Accidental and Death Insurance Scheme as envisaged in the herein before referred case of Upen Das2321 18 that the petitioners have not been paid their salary since the month of December 2017 then the respondents shall release the arrear salary as per last pay scale drawn within a period of 4months from the date of service of a certified copy of this order upon the respondent no.4. c. The current salary shall be paid as and when due d. Save and except the reliefs as indicated above all other prayers made in these three writ petitions are refused 19) These writ petitions are disposed of JUDGE

Summary: The implications of the appointment being temporary, casual, or contractual, and the fact that such a person cannot rely on the notion of legitimate expectation to be confirmed in the position when an appointment to the job could only be made after a thorough selection method. The Court is compelled to rule that the petitioners are not entitled to any order from the Court requiring them to regularise their respective services. The judgment was passed by The High Court of Gauhati in the case of Rajkumar Kachari and 2 Ors. V. The State of Assam And 4 Ors [WP(C)/956/2016] by a Single Bench consisting of Hon’ble Shri Justice Kalyan Rai Surana. The case of the petitioner is that the issue regarding non-regularization of the petitioners to the post of the driver in the Assam Tribal Development Authority (respondent) is involved. Therefore, as the case is ready as regards service and the respondent has filed their affidavit-in-opposition, at the insistence of the learned counsel for all sides, the matter has been heard in the admission stage. The Learned Counsel for the petitioners has submitted that previously there was no vehicle allotted to the ATDA. However, subsequently, the ATDA had been given vehicles for various schemes and vehicles were allotted to various functionaries of the ATDA. Therefore, the petitioners were engaged in service as drivers. It is submitted that from time to time, communications were exchanged for sanctioning the creation of the posts of drivers and to regularise the service of the petitioners. The learned senior counsel for the petitioners has further submitted that the petitioners are also entitled to monthly salary, after taking into account the due increments along with other financial benefits. The Learned Counsel for the respondent has opposed this application by submitting that the Government had not accorded sanction for creation of the posts of drivers, as such, the Government cannot be burdened with the liability to pay monthly salary to the petitioners. The learned departmental standing counsel appearing for the respondent referred to the affidavit-in-opposition filed by the respondent and he had made his submissions thereby supporting the claim of the petitioners. It is submitted that the respondent has repeatedly sent proposals before the appropriate and competent authority of the State for according sanction for creation of posts of drivers and to regularise the service of the petitioners.