TAFFAJUL HAQUE Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard learned counsel for the petitioner an also the learned Govt. Advocate for the respondent State.

(2.) By this petition under Article 226 of the Constitution, the petitioner who was a work- charge employee under the Executive Engineer, Guwahati West Division, Irrigation prays for a direction to the respondents to regularise him in service. He has based his case on a letter dated 2nd April, 1994 addressed to the Superintending Engineer, Guwahati Circle -I, which reads as follows : No. IGN (E) 98/93/62 Dated Guwahati, the 2nd April /94. From: Shri K.N.Das, Deputy Secy. (E) to the Govt. of Assam, Irrigation Deptt., Guwahati -3. To : The Superintending Engineer, Guwahati Invt. Circle (I), Guwahati. Sub : Approval for appointment. Sir, In forwarding herewith an application from Shri Tafazul Haque, I am directed to accord Govt. approval for appointment of Shri Haque against any regular vacant post if there be any or any post available for his apptt. by up- gradation for a period of 2 (two) months only subject to availability of fund. Yours faithfully, Sd/- 2.4. Deputy Secy. (E) to the Govt. of Assam Irrigation Deptt., Ghy-3."

(3.) A mere reading of this letter would go to show that the socalled approval is preceded with certain conditions and unless these conditions as stated in the above said letter are fulfilled, the question of consideration for regularisation does not arise. In umpteen cases, to note only a few, the Supreme Court in - (1) Union of India -Vs- Dinesh Kumar Saxena, AIR 1995 SC 1565; (2) State of Haryana & Ors. -Vs- Pyara Singh & Ors. AIR 1992 SC 2130; (3) M. S. C. C. G. M. F. Ltd. -Vs-M.S. C.C.G.M. F.E. Union AIR 1994 SC 1046. -has consistently been held that regularisation cannot be claimed as a matter of right. It is subject to availability of vacant sanctioned post and on fulfilment of eligibility conditions. The aspirent has to take his turn in the line, he cannot claim any precedent or preference in the matter of regularisation. It is a settled proposition of law that in order to maintain petition for a writ of mandamus the petitioner must have a subsisting legally enforceable right at law, and such right is not conferred by the aforesaid letter as quoted above. No such right acmes to the petitioner for such letter. Reliance has also been placed on an order passed by the learned Single Judge of this Court on 3.1.95 in Civil Rule No. 10/95. All that was directed to the respondent to consider petitioner's representation and the same has in fact been considered but the grievance that has new been made that it has not been properly considered by the State. There is an omission on the part of the authorities, inasmuch as, the circular dated 14th October, 1995 issued by the Secretary to the Govt. of Assam and addressed to all Departmental Heads, was not taken into account. This circular on which the reliance is now being placed by the petitioner has not even made in the petition, much less a ground of attack in the petition and reference is also made to yet another circular dated 20th April, 1995 issued by the Chief Secretary to the Govt. of Assam to all Commissioners and Secretaries to the Govt. of Assam. Now taking both these circulars placed for the first time before this Court at the stage of hearing, yet they do not confer any right on the petitioner to invoke Article 226 of the Constitution. The circular dated 20th April 1995 reads as follows: