Allowed

Igo Riba v. the State of Ap and 2 Ors.

Gauhati HC17 Aug 2022WP(C)/243/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging a cancellation order. The bench held that the cancellation of the petitioner's service was procedural flawed as it did not provide an opportunity to be heard and remanded the matter for a reasoned order following due procedure.

What did the court decide?

The impugned order dated 01.07.2022 cancelling the petitioner's service was set aside and the matter remanded to the Deputy Commissioner to proceed following due procedures.

Igo Riba Vs the State of Ap and 2 Ors. — Labour and Industrial Disputes | Gauhati HC (2022)

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Page No.# 1/5

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GAHC040008422022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 243/2022

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1:Igo Riba S/o Nyai Riba,

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A Permanent Resident of Pagi Village, PO and PS Basar, District Leparada, Arunachal Pradesh. and residing at Chandranagar, PO RKMH and PS Chandranagar, Itanagar, Arunachal Pradesh, PIN 791111

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VERSUS

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1:THE STATE OF AP and 2 Ors.

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Represented by Chief Secretary. Govt. of Arunachal Pradesh, PIN 791111

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2:The Secretary District Administration Civil Secretariat Itanagar Govt. of Arunachal Pradesh PIN 791111

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3:The Deputy Commissioner Itanagar Capital Region District Papumpare Govt. of Arunachal Pradesh PO and PS Itanagar PIN 79111

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For the Petitioners : Mr. S. Mow.

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For the respondents : Mr. D. Soki.

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Page No.# 2/5

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BEFORE HONBLE MR. JUSTICE A M BUJOR BARUA

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Date of Hearing :17.08.2022 Date of Judgment: 17.08.2022

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JUDGMENT & ORDER(ORAL)

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Heard Mr. S. Mow, learned counsel for the petitioner and also heard Mr. D. Soki, learned Additional Senior Government Advocate for all the respondents.

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2. By an order dated 14.12.2012, the petitioner, Shri. Igo Riba was temporarily appointed as a skilled contingency under the e-Governance Society, Itanagar Capital Complex at a monthly consolidated wage payment @ Rs 3,800/-(Three thousand eight hundred only)per month from the date of his appointment w.e.f. 01.12.2012 for a period of 1(one) year with 1(one) day break on every first date of the month of continuation period. Prima facie the order of appointment itself appears to be contrary to the accepted provisions of law. Firstly, when the order of appointment is dated 14.12.2012, the appointment could nothave beenwith effect froma retrospective date of 01.12.2012 and secondly, the procedure of making appointment for a period of 1(one) year with a break of one day for further continuing has already been declared by the Hon’ble Supreme Court to be against the provisions of law.

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3. Be that as it may, by an order dated 20.09.2021 of the Deputy Commissioner, Capital Complex Itanagar, the petitioner, on the recommendation of the DPC held on 01.03.2021 was regularized to the post of Peon (MTS) in the establishment of the Deputy Commissioner, Capital Complex Itanagar in a pay scale of Rs. 18,000-56,900/- per month (Level-1Cell-1) of pay matrix of 7th CPC plus other allowances as admissible to the employees of the Government of

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Page No.# 3/5 Arunachal Pradesh. The appointment was made subjected to certain terms and conditions, which amongst others provided that the appointment was purely on temporary basis and the petitioner would be on probation for a period of 2(two) years, the appointment would be subject to the satisfactory reports of character and antecedent and if any adverse report is received from the Police/District Authorities, the service will be terminated and further, that the appointment may be terminated at any time by giving one month’s notice by either of the sides.

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4. The order of 20.09.2021 also appears to be self contradictory in nature to the extent that on the one hand, it provides that the service of the petitioner has been regularized and on the other hand, it provides that it is temporary and further, it can be terminated by giving one month’s notice.

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5. Be that as it may, vide the impugned order dated 01.07.2022, the service of the petitioner was cancelled with immediate effect. In the order impugned dated 01.07.2022, it was provided that several complaints were received from the contingency staffs against the appointment of the petitioner as Peon (MTS).

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6. It is further provided that the DPC had recommended the promotion of the petitioner without following due office procedures and recruitment rules and that the promotion meted to the petitioner was an out-of-turn promotion without following the due procedures.

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7. We are not expressing any view on the reasons as to why the appointment/regularization of the petitioner had been cancelledbut, take note that the appointment/regularization of the petitioner was cancelled without following even the minimum requirement of the due procedures of law.

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8. On 25.07.2022, notice was issued and further, the respondents were required to either file counter affidavit or provide the appropriate instructions in order to enable the Court to look into the prayer for interim order made by the

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Page No.# 4/5

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petitioner.

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9. Mr. D. Soki, learned Additional Senior Government Advocate upon obtaining the instructions, informs the Court that the entire procedure which was followed in appointment/regularization of the service of the petitioner was contrary to the existing provisions of law. It is also submitted that the petitioner is not even eligible to be appointed as a Peon (MTS) on a regular basis and further, within the department itself there were many other claimants having a better claim for such appointment/regularization than that of the petitioner.

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10. Based upon such reason on which the service of the petitioner was cancelled, Mr. D. Soki also relies upon a principle laid down by the Hon’ble Supreme Court in State of Haryana Vs Suman Dutta, reported in (2000) 10 SCC 311, wherein, the Hon’ble Supreme Court has expressed its views against an interim order where the services of the Government Employees were terminated for not passing the required shorthand and typewriting test. In the circumstance, the Hon’ble Supreme Court has expressed the view that if by an interim order such employees are allowed to continue in service and ultimately the writ petition was dismissed, then it would tantamount to usurpation of public office without any right to the same.

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11. In the instant case, apart from the aspect as raised by Mr. D. Soki, that the petitioner is not eligible and that due procedures was not followed in this appointment/regularization, we are also required to look into as to whether due procedures of law was followed while passing the order of cancellation of the appointment of the petitioner.

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12. On one hand, it may be a case in favor of the respondent authorities that if an interim order is passed and the petitioner is allowed to continue his service, it would amount to usurping a post in the Government without being eligible for

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Page No.# 5/5 the same. But, at the same time, whether or not the petitioner was eligible for the post and further, whether or not any due procedures of law was followed while appointment/regularization of the service would also be an aspect to which the petitioner would has a right to give a reply before any final order of cancellation is passed. From such point of view, it cannot be said that the order of cancellation can be meted without following any due procedures of law.

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13. Considering the entire aspects of the matter and also considering the balance of convenience as well as the respective irreparable losses that the petitioner or the respondents may suffer, we are of the view that interest of justice would be made on a final order being passed inasmuch as the stand of the respondents is already made clear before the Court.

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14. Accordingly, taking note of the aspect that due procedure of law was not followed in arriving at the order of cancellation dated 01.07.2022, we set aside the same and remand the matter back to the Deputy Commissioner, Itanagar Capital Complex to proceed against the petitioner by following the due procedures of law i.e, giving him at least a minimum opportunity to explain his case and thereafter, pass any reasoned order that may be advisable in law.

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15. The Deputy Commissioner to do the needful, within a period of 15(fifteen) days from the date of receipt of the certified copy of this order. During the intervening period it would be open for the respondents, if advised, to place the petitioner under suspension.

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16. This writ petition stands allowed as indicated above.

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JUDGE

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Comparing Assistant

Igo Riba v. the State of Ap and 2 Ors.

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Igo Riba v. the State of Ap and 2 Ors.

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