ILEN GOGOI Vs. THE STATE OF ASSAM

JUDGEMENT

(1.) AS many as 9 (nine) writ petitioners involved in this case were appointed on ad -hoc basis in the year 2001 either as Enforcement Checker or as Assistant Enforcement Inspector under the Transport Department of Assam. Their appointment letters have been annexed at Annexure - 1 to this writ petition which shows that as per the term of their appointment they were required to appear before Selection Committee to qualify for being regularized in service and their failure to qualify in the selection test would result in automatic termination of their service. The Commissioner of Transport arranged for a selection process in the year 2002 and the written examination was conducted on 03.02.2002 in which the present petitioners had also participated. This selection process came under challenge before this court in PIL No. 19/2002 and a writ petition, numbered as WP(C) No. 6000/2002. Although, this Court dismissed the writ petition and the P.I.L. on 29.01.2003, the aggrieved persons went up to the Hon'ble Supreme Court invoking Article 136 of the Constitution and Civil Appeals No. 6093, 6085, 6098/2003 were registered thereby. Pursuant to a notice issued in those proceedings under Order I Rule 8 of the Code of Civil Procedure vide order dated 07.04.2003 passed by the Supreme Court, the present petitioners also participated in the proceeding before the Apex Court. The State of Assam informed the court in the aforesaid proceeding that Government was in favour of cancelling the examination and to hold a selection afresh. On such stand being taken by the State, the Civil Appeals were disposed of by order dated 04.08.2003 permitting the State of Assam to hold fresh examinations for appointment to the vacant posts of Assistant Enforcement Inspector (for short, 'AEI') and Enforcement Checker (for short, 'EC') under the Transport Department of Assam. However, it was provided that till such selection was made, all the ad -hoc appointees would be permitted to continue in the post held by them so far and "if they wished to be appointed regularly they must sit for the examination and if they are successful take the viva -voce test."

(2.) AFTER the aforesaid direction by the Hon'ble Supreme Court, State of Assam framed and promulgated a set of Rules on 07.10.2003 under proviso to Article 309 of the Constitution under the name and style of the Assam Transport Service Rules, 2003 (hereinafter referred to as 'the Rules') regulating the recruitment and conditions of services of the persons appointed to the Assam Transport Service. Rule 5(5) of this Rules deals with direct appointment to A.E.I. which provides that 75% of the posts in the cadre shall be filled up by direct recruitment in accordance with Rules 7, 8, 9 and 10. It is also provided that the balance 25% of the posts in the cadre shall be filled up by promotion from the cadre of E.C. in accordance with Rules 11, 14, 15, 16, 17 and 18. Rule 6 of the Rules provides procedure for direct recruitment which shows that direct recruitment to respective cadres would be made on the basis of recommendation by the Commission/Board as the case may be. The case of the A.E.I. and E.C. being Class -III posts they are not required to be appointed on recommendation of Assam Public Service Commission (for short, APSC) and their recruitment is to be made on the basis of Selection Board as defined under Rule 2(b) of the Rules. The Rule 2(b) defines 'board' as 'selection board constituted under Rule 13' which on turn is the provision for constitution of board for promotion to the various ranks mentioned therein. A joint reading of Rule 13 and Rule 2(b), therefore, suggests that a selection board is to be constituted in the manner suggested under Rule 13 which would hold selection and make recommendation of names to the department for appointment to 75% of the cadre of A.E.I. The direct recruitment to the post of E.C. is to be done in accordance with Rules 7, 8, 9, 10, 14, 15, 16, 17 and 18 as provided under Rule 5(6) of the Rules.

(3.) AFTER cancellation of the second selection process, the official respondents issued another advertisement on 30.07.2005. As against this advertisement, a writ petition being WP(C) No. 6839/2005 was filed before this Court whereupon by order dated 23.09.2005 this Court permitted continuance of selection process but restrained the Government from publishing the results thereof. However, ultimately by judgment and order dated 21.06.2006 that selection process was also set aside and Government was directed to conduct a fresh selection in accordance with law. In the process, all the writ petitions, namely, WP(C) No. 6839/2005, WP(C) No. 5880/2005, WP(C) No. 7175/2005 and WP(C) No. 6602/2005 stood allowed. Government accepted the position and did not prefer any appeal. But four of the selected candidates of the said advertisement preferred writ appeal No. 249/2006 and 278/2006 before a Division Bench of this Court which allowed the writ appeals and directed the Government to declare results and to proceed with selection. The petitioners in WP(C) No. 6839/2005 went up to the Hon'ble Supreme Court vide S.L.P. No. 7175/2005 but ultimately the same was dismissed. After dismissal of the SLP, the selected candidates of the third selection process initiated by advertisement dated 30.07.2005, were regularly appointed and consequently all the ad -hoc appointees including the present petitioners were terminated from service w.e.f. 01.04.2008 which marks the second round of legal battle by the ousted ad -hoc appointees.