‘State can’t take advantage of its own wrong’: Gauhati High Court blocks firing of govt staff serving for 14 years

The order added that such irregularity does not erase the reality of long and continuous service rendered, nor does it neutralise the equities that have crystallised over time.

Noting that the procedural irregularities attributable solely to the employer, the court said, “The constitutional guarantee of equality does not require an employee to bear the consequences of administrative failure, particularly when the State itself has acquiesced in and benefited from arrangements over a long period of time.”

Findings

• It is not the case that the state’s joint directors were private or extraneous authorities.
• They are functionaries who head district establishments of the health department, exercising administrative control over the sanctioned posts within their respective jurisdictions.
• In the absence of any statutory provision or executive instruction in this regard expressly prohibiting the joint director from acting as the appointing authority.
• The assertion that the director alone could have exercised such power cannot, by itself, render the entire recruitment process non-existent, more particularly, when the salaries and other benefits are paid by the director and the state for more than 14 years.
• A distinction must be maintained between a breach that goes to the jurisdiction and one that is curable or irregular.
• The petitioners did not enter into service through a concealed or surreptitious route.
• Their entry resulted from a recruitment process initiated by the state itself.
• Advertisements were issued in the public domain, applications were invited, selections were held, appointment orders were issued, and the appellants were inducted into service.
• The state treated the petitioners as members of its workforce, assigned them duties essential to the functioning of public health institutions, and paid them salaries from the government fund.
• This conduct of the state continued uninterruptedly for nearly 14 years.
• When the administration itself proceeds to make appointments, posts employees against sanctioned vacancies, and releases their salaries year after year, then the state cannot, after prolonged acquisition, turn around and contend that the appointments were void from inception.
• Such an approach would permit the state to benefit from its own wrong and would offend the principle of non-arbitrariness that permeates Article 14 of the Constitution of India.
• Allowing the state to retrospectively invalidate such appointments after extracting years of service would be antithetical to fairness and would erode public confidence in the stability of public employment.
• After the extraction of a prolonged service, the state is constitutionally restrained from undoing its own acts to the grave detriment of the employees situated at the lowest ranks of service.
• Particularly, when there is no allegation of fraud or manipulation, and admittedly, appointments were made after a selection process.

Background

• The petitioners were appointed as grade-4 employees in the year 2004-2005 against substantive vacancies under the joint director, health services, Dibrugarh and Goalpara.
• Another group of petitioners engaged from 1999 to 2005, and their services were regularised between 2009 and 2011 after years of ad-hoc service.
• All these employees continued to serve until their services were terminated in 2019.
• The employees challenged the termination before a single judge, where the court upheld the termination order.
• The employees challenged this order before the division bench against the single judge bench order.
• The case originated from the two separate advertisements issued by the joint director of health services, Dibrugarh and Goalpara, respectively, seeking applications for selection and appointment to several grade-4 posts.
• In 2017, the allegations of illegal appointments of surveillance workers in the health department were raised.
• In March 2017, the secretary to the government of Assam, health and family welfare department, directed the Director of health services, Assam, to conduct a screening process for surveillance workers to verify the genuineness of their services.
• A screening committee was constituted in May 2017 to verify appointment orders, transfer orders, and service books of all grade-4 staff, including surveillance workers, in all districts under the directors of health services.
• In February 2018, show-cause notices were issued to grade-4 employees whose appointments were found to be not genuine, asking why they should not be removed from service for the irregularities detected by the screening committee.
• Following this, some of the employees approached this court, where the court directed the state to extend the screening exercise to enable everyone to participate.
• It was further provided that if any serving person is found not to be genuine, the authorities should specify the precise deficiency and afford the affected employee an opportunity before any adverse action is taken.
• Subsequently, in June 2019, the joint director of health services issued show-cause notices to those whose appointments were found to be not genuine, asking them to prove the genuineness of their appointments, failing which they should be terminated from service.
• The petitioners once again approached this court by alleging that the exercise violates the court’s earlier order.
• The same were closed by a single judge, in the backdrop of a stand taken by the director of health services, Assam, that a decision has been taken by the health department to withdraw the show cause notices and to issue fresh show cause notices.
• Those notices mention the specific deficiency found against each illegal employee, including the petitioners, so that each show caused employees get an opportunity to know his/her deficiency and respond effectively.

Arguments

• Appearing for the petitioners, senior advocate M. Goswami submitted that the petitioners had been serving for almost 14 years until their services were terminated in 2019 and 2020.
• He further argued that they have been drawing regular salaries ever since their initial appointments, until their termination, which itself indicates that their appointments were regular and removal from service at this stage will cause immense financial and emotional hardship for them.
• Representing the state, the Additional Advocate General B. Gogoi argued that such appointments were made without having prior approval of the director of health services, Assam, who is the appointing authority and the head of the department, without the approval of the state-level empowered committee, which was mandatorily required during the period of initiation of the selection process.
• He further argued that these appointments were made without publishing the advertisement in a newspaper for wide publication, during a period when a ban on appointments was imposed by the government in the health and family welfare department, barring the issuance of any kind of appointment orders.