2012(4) ALL MR 293
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

D.G. KARNIK AND S.B. DESHMUKH, JJ.

Rajendra S/O. Vitthalrao Kamble Vs. Government Of Maharashtra & Ors.

Writ Petition No. 5898 of 2010,Writ Petition No. 7764 of 2010,Writ Petition No. 9050 of 2010,Writ Petition No. 9145 of 2010,Writ Petition No. 9160 of 2010

28th March, 2012

Petitioner Counsel: Mr. S.B. TALEKAR
Respondent Counsel: Mr. S.V. KURUNDKAR
Other Counsel: Mr. N.E. DESHMUKH, Mr. M.S. DESHMUKH, Mr. S.B. BAKHRIYA, Mr. A.V. PATIL

(A) Administrative Tribunals Act (1985), S.21(3) - Limitation - Continuing wrong - Original applicants initially appointed on 31-3-2007 - Fresh contracts were signed twice after end of 11 months each - Each fresh contract gave a fresh cause of action - Applications filed within 2 months of termination of last contract are not barred by limitation. (Para 11)

(B) Constitution of India, Arts.14, 16 - Posts whether temporary or permanent - Government deciding to create 471 posts of Law Officers in the establishment of Director General of Police - Said posts were not to be filled up by regular appointments but by contractual appointments - Held posts cannot be treated as temporary, they were permanent posts. (Para 12)

(C) Constitution of India, Arts.14, 16 - Ad hoc and permanent posts - Ad hoc or temporary appointment may become necessary on account of exigency of administration - However ad hoc or temporary employee appointed to permanent post should not be replaced by another ad hoc or temporary employee.

On account of exigency of administration, temporary or ad hoc appointment can be made initially till a suitable candidate is selected through competitive selection process. But one ad hoc appointee appointed to a post cannot be replaced routinely (except where the appointee resigns or otherwise vacancy occurs before regular selection is made) by another ad hoc appointee without undertaking the process of selection of a permanent employee to the post. Otherwise this would only create arbitrariness and a tool in the hands of the State and its authorities to appoint or re-appoint a person to the same post while denying opportunity of appointment to the others.

2008 ALL SCR 134 - Rel. on. [Para 13,15]

(D) Constitution of India, Arts.14, 16 - Permanent continuance of ad hoc employees - Law officers appointed temporarily on ad hoc basis on a contract basis - Not in a regular manner under a constitutional scheme - Appointees to such posts are not entitled for continuation of their appointments permanently - Court cannot accept such request. (Para 17)

Cases Cited:
State of Haryana and others Vs. Piara Singh and others, (1992) 4 SCC 118 [Para 9,10,13]
Union of India and others Vs. Tarsem Sing, 2008 ALL SCR 2457=(2008) 8 SCC 648 [Para 11]
Secretary, State of Karnataka and others Vs. Umadevi & others, 2008 ALL SCR 134=(2006) 4 SCC 1 [Para 13,17]
Mohd. Abdul Kadir and another Vs. Director General of Police, Assam, and others, (2009) 6 SCC 611 [Para 14,15]


JUDGMENT

D.G. KARNIK, J. :- All these petitions are directed against a common order dated 6th May 2010, passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad (For short, "the Tribunal"), in Original Application Nos. 91/2010 and 106/2010. Hence these petitions are disposed of by this common order.

2. The applicants before the Tribunal (hereinafter referred to as "the original applicants") were appointed as Legal Advisors, Law Officers and Law Instructors under the Director General of Police or Commissioner of Police, Greater Mumbai, sometime on 31st March 2007 or thereabout under a contract. Their appointments came to an end on 1st January 2010 on expiry of the contractual period. Law Officers filed Applications bearing O.A. No. 91/2010 and Law Instructors filed O.A. No. 106/2010 before the Tribunal challenging their termination, and also challenging some of the conditions in the Government Resolutions dated 21-8-2006 and 15-9-2006, under which they were appointed. They also prayed for a direction to the State to regularize their appointments as Law Officers / Instructors. By the impugned order, the Tribunal struck down Condition No.3 in the Government Resolution dated 21st August 2006, and Condition Nos.'v]' 'c]' o] 'd]' [(a), (b) and (c)] in the Government Resolution dated 15th September 2006. The Tribunal, however, did not grant the prayer for regularization of their appointment to the posts of the Law Officers / Instructors. Aggrieved by the decision of the Tribunal, striking down Clause No.3 of the Government Resolution dated 21st August 2006, and Condition Nos. (a), (b) and (c) in the Government Resolution dated 15th September 2006, the State of Maharashtra has filed Writ Petition Nos. 9145/2010 and 9160/2010 before us. Aggrieved by the decision of the Tribunal, of not granting the relief of regularization and continuation of their appointments as Law Officers / Instructors, the original applicants have preferred Writ Petition Nos. 7764/2010 and 9050/2010. Writ Petition No. 5878/2010 has been filed by one Law Officer in person. However, he was absent at the hearing of the petitions. We have also perused the grounds of challenge raised in his petition.

3. When Writ Petition No. 9145/2010 came up for hearing on admission before this Court on 5th October 2004, this Court directed issuance of notice to the respondents and granted ad interim relief in terms of prayer clause "C" thereof i.e. it stayed the execution and operation of the impugned order of the Tribunal. The matters thereafter appeared together before this Court from time to time and it was agreed between the parties that the petitions be heard and disposed of finally at the stage of admission itself. Accordingly, a circulation was sought before us and the same was granted on 5th March 2012. The matter was thereafter heard and on conclusion of hearing, the orders were reserved on 20th March 2012.

Facts in Brief

4. In the Cabinet meeting held on 19th October 2005, a decision was taken to create 471 posts of Law Officers on the establishments of Director General of Police, Maharashtra State, and the Commissioner of Police, Greater Mumbai, in various cadres. In pursuance of the said decision, a Government Resolution was issued on 21st August 2006, creating 471 posts in the establishments of Director General of Police and Commissioner of Police, Greater Mumbai. The Condition No.3 in the said Government Resolution is material and states "The posts should not be filled up on regular basis but should be kept vacant and the eligible persons be appointed on a contract basis as per the terms and conditions approved by the Government or by preparing appointment rules". It is this condition which has been struck down by the Tribunal. The Government Resolution dated 21st August 2006 was followed by a second Government Resolution dated 15th September 2006. The first paragraph of the Government Resolution dated 15th September 2006 records that as per the earlier Government decision, 471 posts of Law Officers have been created. It then gives the chart of 471 posts which is essentially the same as is given in the Government Resolution dated 21st August 2006. The second Government Resolution dated 15th September 2006 then reaffirms the Condition No.3 in the earlier Government Resolution dated 21st August 2006 and says that the posts shall not be filled up on regular basis but the Law Officers shall be appointed on contract basis. Clauses (a), (b) and (c) of the Government Resolution dated 15th September 2006 read as follows :

(a) The appointment to the posts shall be made exclusively on contract basis. The officers / employees shall not be considered as Government servants.

(b) The appointments should be made on contract basis initially for 11 months. After 11 months, the period of contract may be increased from time to time. However, the appointing authority shall ensure that extension is not granted for more than 11 months at any one time. In this manner, appointments can be made for maximum three times. Thereafter, if the competent authority is of the view that a candidate needs to be reappointed, the candidate shall be required to undergo fresh selection process.

(c) At the time of appointment, the concerned appointing authority shall enter into a contract in the prescribed form. The prescribed form is given in Schedule "B". It would be responsibility of the concerned office to maintain all documents.

The Condition numbers (a), (b) and (c) mentioned above have also been struck down by the Tribunal.

5. The original applicants before the Tribunal were appointed on 31st March 2007 or thereabout. At the time of appointment, each of them was required to execute an agreement in accordance with the form prescribed in Schedule "B" attached to the Government Resolution dated 15th September 2006. The agreement specifically states that their appointments were purely on contract basis. The appointments of the original applicants were made initially for 11 months but were renewed twice at the end of 11 month each. At the expiry of contractual period of 33 months, the government relieved the original applicants of their duties with effect from 1st January 2010. On 13th January 2010, the Government issued an advertisement for selection of new candidates to the aforementioned posts under the Director General of Police and the Commissioner of Police, Greater Mumbai.

6. Aggrieved by the termination of their service, the original applicants filed Original Application Nos. 90/2010 and 106/2010 before the Tribunal for the following reliefs :

(A) To declare that the Condition No.3 in the Government Resolution dated 21st August 2006 was ultra virus Articles 14 and 16 of the Constitution of India.

(B) To declare that the Government Resolution 15th September 2006, according approval to fill in 471 posts of Legal Advisors, Law Officers and Law Instructors, on a consolidated salary rather than the regular pay scale and on contract basis forever, was void as violative of Articles 14 and 16 of the Constitution of India.

(C) To direct the respondents to regularize the services of the applicants as Legal Advisors, Law Officers and Law Instructors and pay them regular pay scale.

7. As stated earlier, the Tribunal struck down Condition No.3 of the Government Resolution dated 21st August 2006 and Clauses (a), (b) and (c) of the Government Resolution dated 15th September 2006 but did not grant prayer (C) or any other relief. Both parties have challenged the decision of the Tribunal.

Submissions of the parties

8. Mr. S.V. Kurundkar, learned Government Pleader appearing for the State, assailed the decision of the Tribunal on various grounds. He submitted that the challenge to the Government Resolutions dated 21st August 2006 and 15th September 2006, made in the year 2010, was barred by limitation as provided in Section 21 of the Admiistrative Tribunals Act, 1985. He further submitted that the 471 posts created under the Government Resolutions dated 21st August 2006 and 15th September 2006 were neither the permanent posts nor were they civil posts under the Government. They were purely temporary posts to which only temporary appointments were made. The original applicants were appointed on a contractual basis only for 11 months with two options of renewal. The original applicants had entered into a written contract with the Government in the form prescribed in the Government Resolution dated 15th September 2006. Having accepted the appointment to temporary posts and having entered into a contract in the prescribed form, the original applicants were estopped from challenging the validity of the Government Resolutions dated 21st August 2006 and 15th September 2006, or any part thereof. He further submitted that it was a policy decision of the Government, not to fill up 471 temporary posts created under the Government Resolutions dated 21st August 2006 and 15th September 2006, on a permanent basis but to fill up the posts only by making contractual appointments. This being a policy decision, it was beyond the purview of the Tribunal to set aside the policy of the Government contained in the Government Resolutions.

9. Per contra, Mr. S.B. Talekar, learned Counsel appearing for the original applicants, submitted that services of the applicants were terminated with effect from 1st January 2010, which gave cause to them to approach the Tribunal. The Original Applications were filed within two months of the accrual of the cause of action and, therefore, were not barred by limitation. So far as challenge to Condition No.3 in the Government Resolution dated 21st August 2006, and Clauses 'a', 'b' and 'c' in the Government Resolution dated 21st August 2006 was concerned, the challenge was based on violation of Articles 14 and 16 of the Constitution of India. An application for preventing infringement of fundamental right and imposition of an unconstitutional service condition can be challenged at any time. He further submitted that an attempt by the Government to replace the original applicants by ad hoc appointees infringes the fundamental right of the original applicants and the cause for filing the Original Applications arose because the original applicants were sought to be terminated with effect from 31st December 2009. He, therefore, submitted that the Original Applications were within limitation. As regards the estoppal, he submitted that there can be no estoppal against the statute and the original applicants cannot be estopped from challenging the Government Resolutions as their fundamental rights conferred under Articles 14 and 16 of the Constitution of India were infringed. Relying upon a decision of the Supreme Court in the case of State of Haryana and others Vs. Piara Singh and others ((1992) 4 Supreme Court Cases 118), he submitted that the State was not competent to replace one ad hoc appointee by another ad hoc appointee and, therefore, even if the appointment of original applicants were held to be an ad hoc, they could not be replaced by making another ad hoc appointments on contract basis. He lastly submitted that the Tribunal ought to have granted declaration that the original applicants were the permanent appointees and their services could not be terminated.

Points for consideration

10. In the light of the submissions of the parties, following points arise for our consideration :

(1) Whether the Original Applications before the Tribunal were barred by limitation ?

(2) Whether the 471 posts created under the Government Resolutions dated 21st August 2006 and 15th September 2006 were not permanent posts but were only ad hoc or temporary posts ?

(3) Whether the decision of the Government to re-advertise the posts afresh, after lapse of three years, for being filled up by new appointees on ad hoc basis is contrary to the principle laid down in the case of State of Haryana and others Vs. Piara Singh and others (supra), that one ad hoc appointee cannot be replaced by another ad hoc appointee ?

(4) Whether the original applicants were estopped from challenging the Government Resolutions dated 21st August 2006 and 15th September 2006 ?

(5) Whether the petitioners were entitled for continuation in the posts to which they were appointed and whether the Tribunal erred in not granting a declaration to that effect ?

Reasons

11. Regarding Point No.1 : Section 21 of the Administrative Tribunals Act, 1985 (For short, "the Act") prescribes a period of limitation for entertaining an application by the Tribunal. Sub-Section 3 of Section 21 of the Act empowers the Tribunal to entertain the application even after the period specified in Sub-Section (1) or Sub-Section (2) of Section 21 if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. The Tribunal has held that the period of limitation prescribed by Section 21 of the Act is to be computed from the date of accrual of the cause of action. It has further held that the cause of action is a bundle of facts which gives rise to the grievance of the applicants. We respectfully agree with this view of the Tribunal. In the present case, the Government Resolutions were made in August and September 2006. The appointments in pursuance of the said Resolutions were made on or about 31st March 2007, initially for a period of 11 months. At the expiry of period of 11 months, the appointments of the original applicants were renewed twice for a further period of 11 months each and the period of last appointment came to an end only on 31st December 2009. Cause to approach the Tribunal arose only on 1st January 2010 when their services were sought to be terminated - Nay it was contended that their services stood automatically terminated on expiry of the contractual period on 1st January 2010. An advertisement for fresh appointments to the posts of Law Officers was issued in various newspapers on or about 13th January 2010. The Original Applications were filed in February 2010 i.e. within two months of the accrual of cause of action. As such the applications were filed within the period of limitation prescribed under Section 21 of the Act. In Union of India and others Vs. Tarsem Singh ((2008) 8 Supreme Court Cases 648) : [2008 ALL SCR 2457], the Supreme Court has held that normally a belated service related claim would be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) and by limitation (where remedy sought by application to the Administrative Tribunal). However, one of the exceptions to the above rule is cases relating to continuing wrong. Where service related claim is based on a continuing wrong, relief can be granted even if there is long delay in seeking remedy, with reference to the date on which continuing wrong commenced, if such continuing wrong creates a continuing source of injury. In the present case, the original applicants were initially appointed under a contract signed on 31st March 2007 or thereabout. Fresh contracts were signed twice at the end of 11 months each. Each fresh contract gave rise to a fresh cause of action. If contention of the State is accepted that the appointments were contractual, entering into every contract and its termination (by efflux of time) would give rise to a cause of action. The applications have been filed within 2 months of the termination of the last contract and are not barred by limitation.

12. Regarding Point No. 2 : The contention of the learned Government Pleader, that the 471 posts created under the Government Resolutions dated 21st August 2006 and 15th September 2006 were not permanent posts, cannot be accepted. The Government Resolutions are in vernacular language (Marathi). Translations thereof obtained from the official Translator are given below :

For creating 471 posts of Law Officers in the offices under Director General of Police, Maharashtra State and Police Commissioner, Bruhan Mumbai. GOVERNMENT OF MAHARASHTRA HOME DEPARTENT Government Resolution No.APO-3106/C.NO.227/Pol-3, Mantralaya, Mumbai 400 032, dated 21st August, 2006. GOVERNMENT RESOLUTION : The Cabinet after considering all aspects, has approved to create 471 posts in different cadres in the meeting held on 19/10/2005 and as per this approval the Government by this resolution grants permission to the Director General of Police, Maharashtra State and the Commissioner of Police Bruhan Mumbai to fill the following posts in different cadres as mentioned below:-

Sr. No. Designation Pay scale
Posts created
 
      Posts on the establishment subordinate tothe Director General Police Posts on the establishment subordinate to thePolice Commissio- ner, Brihan Mumbai. Total posts
1 Legal Advisor 12000-375-16500 3 1 4
2 Law Officers (Group ‘A’) 10000-325-15200 22 8 30
3 Law Officers (Group ‘B’) 8000-275-13580 55 -- 55
4 Law Officers 7450-225-11050 263 20 283
5 Law Instructor 7400-225-11025 99 -- 99
    Total Posts. 442 29 471

2. The details of posts created as per establishment wise shall be in accordance with the statement.
3. The said posts may not be filled in regular manner and by keeping those posts vacant they should be filled in on contract basis as per the terms and conditions specified by the Government or by preparing Service Recruitment Rules those posts may be filled in.
4. The expenditure incurred for this purpose shall be met from the provisions made for the year 2006-07.
5. This resolution has been issued with the concurrence of the Finance Department vide that Department unofficial reference No.Misc.-470/05/Exp-8, dated 8/11/2005 and No.Misc-1005/ CN-17/Remedies, dated 17/11/2005.
By order and in the name of the Governor of Maharashtra.
Sd/-
(A.N. Naiknaware)
Deputy Secretary, Home Deptt.
Govt. of Maharashtra.

 


 
 
In respect of filling the posts of Law Advisor, Law Officers and Law Instructors in the subordinate offices of Director General of Police, Maharashtra State and Commissioner of Police, Bruhan Mumbai, on contract basis.
GOVERNMENT OF MAHARASHTRA
Government Resolution No.SPP-2005 C.NO.247/Pol-10, Home Department, Mantralaya, Mumbai 32 dated 15th September, 2006.
Read : Government Resolution, Home Department, No. APO 3106/C.No.227/Pol 3, dated 21/8/2006.
GOVERNMENT RESOLUTION :
     The cases being filed by the Police should be filed according to Law, they should get legal assistance and criminals being punished the law and order should be more strong and also giving training of law to the police in Police Training Centres should be easy, therefore, 471 posts of Law Officers have been created in the subordinate offices under the Director General of Police and Inspector General of Police, Maharashtra State and Police Commissioner, Bruhan Mumbai, vide Government Resolution under reference dated 21/8/2006. Those posts are as under:

Sr. No. Designation   Posts created  
    Consolidated payable monthly pay + Phone and conveyance expenses.

Posts on the establishment subordinate to the Director General of Police

Posts on the establishment subordinate to the Police Commissio-ner, Brihan Mumbai. Total posts



1 Legal Advisor 25,000 + 3000 3 1 4
2 Law Officers (Group ‘A’) 20,000 + 5000 22 8 30
3 Law Officers (Group ‘B’) 15,000 = 5000 55 -- 55
4 Law Officers 12,000 + 3000 263 20 283
5 Law Instructor 12,000 + 3000 99 -- 99
    Total Posts. 442 29 471

For filling up the said posts in accordance with the provisions made in para 3 of the Government Resolution dated 21-8-2006 these posts may not be filled in on regular basis and they should be filled in on consolidated pay on contract basis and sanction is accorded by the Government on following terms and conditions :-
A) The appointment on the said posts shall be purely on contract basis. These officers/ employees shall not be deemed as Government employees.
B) Firstly, said appointments may be given on 11 months contract. After 11 months period if necessity arises the terms of contract shall be extended from time to time. However, the appointing authority shall take care that while extending the said period more than 11 months period shall not be extended at one time. In this way, maximum appointments may be given for 3 times. Thereafter, if the competent authority is of the view that if any candidate is necessary to be appointed, such candidate shall have to undergo the selection process afresh.
C) The concerned appointing authority shall enter into contract on behalf of the Government in specified proforma. Proforma of the specified contract is provided in Scheduled ‘B’. It is the responsibility of that office to keep the said relevant documents in their safe custody.
D) The officers / employees seeking appointments on this contract basis shall be entitled for consolidated pay and admissible phone and conveyance (as per limit mentioned above) and no other allowance shall be admissible for them.
E) For filing the posts by contract system the qualification, experience, duties and responsibility and details of selection committee have been given in Scheduled ‘A’. The competent authority for selecting the candidates shall take necessary steps as per the provisions contemplated in the Government Resolution and prevailing Government policy.
                The charges on the aforesaid items should be met from the provisions made for the current financial year 2006-07.
                This resolution has been issued with the concurrence of the Finance Department vide that Department unofficial reference No.AW/7/397/06/Exp/ 7, dated 14/9/2006.
               This Government resolution is made available on the website of the Government and its computer code is 200609181772229001.
               By order and in the name of Governor of Maharashtra.
Sd/-      
( M. A. Gutte )
Under Secretary, Maharashtra state,
Home Department
 

A bare reading of the aforesaid Resolutions unmistakably discloses that the Government had created 471 permanent posts in the establishment of the Director General of Police and the Commissioner of Police, Greater Mumbai. The posts were not temporary. What was provided in paragraph 3 of the Government Resolution dated 21st August 2006 and para (a) of the Government Resolution dated 15th September 2006, is the Government decision not to fill up the said (permanent) posts by regular appointments but by contractual appointments. We will have an occasion to consider hereinafter validity of the decision of the Government to fill up those posts by contractual appointments forever. But one thing is clear that the posts were permanent though the aforementioned two Government Resolutions say that the posts should be filled up by contractual appointments. We have, therefore, no hesitation in rejecting the contention of the learned Government Pleader, that the 471 posts created under the Government Resolutions dated 21st August 2006 and 15th September 2006 were temporary and not permanent.

13. Regarding Point No. 3 : Ordinarily, in a Government establishment, when there exists a permanent post in a cadre, the Government is expected to fill up that post by appointing a permanent employee. Of course, this is subject to the condition that the Government decides to fill up the post and no mandamus can be issued to appoint a person, even a selected person, to the post unless the Government decides to fill it up. But when Government decides to fill up a post, it is ordinarily expected to appoint a permanent employee to that post. Appointing a permanent employee to a cadre post may require selection through a competitive examination and sometimes a selection through the Public Service Commission. This may entail time. In such a situation, an ad hoc or temporary appointment may become necessary on account of exigency of the administration. However, the ad hoc or temporary employee appointed to a permanent post should not be replaced by another ad hoc or temporary employee. He can be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. We are fortified in our view by a decision of the Supreme Court in State of Haryana and others Vs. Piara Singh and others (supra). The decision in Piara Singh's case was considered by a Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi & others (2006) 4 SCC 1 : [2008 ALL SCR 134]. In paragraph 26 (of SCC) of the decision (reported in SCC), the Constitution Bench has overruled the directions issued in paragraph 50 (of SCC) in the decision of State of Haryana and others Vs. Piara Singh and others (supra), regarding regularization of ad hoc / temporary employees. However, the principle that one ad hoc employee appointed to a permanent post cannot be replaced by another ad hoc employee, laid down in (para 46 of SCC) Piara Singh's case has not been overruled in Secretary, State of Karnataka and others Vs. Umadevi & others (supra).

14. In the case of Mohd. Abdul Kadir and another Vs. Director General of Police, Assam, and others ((2009) 6 SCC 611), the Supreme Court has found that the practice of giving artificial breaks in service is contrary to service jurisprudence. In that case, ex-servicemen were selected for appointment under the Prevention of Infiltration of Foreigners Additional Scheme, 1987 (For short, "PIF Scheme") for strengthening the Assam Government machinery for detection and deportation of foreigners. The PIF scheme was extended from time to time. The appellant, an ex-serviceman, who was selected and appointed as a Sub-Inspector on 1-9-1988. He challenged the Circular dated 17th March 1995 issued by the Inspector General of Police (Border) which stated that the appointments of exservicemen under the PIF Scheme were to be made on contract basis for a period of one year and 45 days before the expiry of one year termination notice was to be issued to every ad hoc employee and fresh appointments were to be made. The terminated employee, if he desired to continue, was required to make an application for fresh appointment. The appellant challenged his termination in pursuance of the circular as well this procedure of annual termination and re-appointment before the High Court. Single Judge allowed the petition but the Division Bench, on appeal, dismissed it. Allowing the appeal against the decision of the Division Bench, the Supreme Court held that artificial annual breaks and re-appointments introduced by the State agency entrusted with the operation of the PIF scheme was not valid.

15. The principle laid down in the case of Mohd. Abdul Kadir and another Vs. Director General of Police, Assam, and others (supra) squarely applies to the facts of the present case. 471 permanent posts in the cadres of Law Advisors and Law Officers have been created by the Government decision contained in the Government Resolutions dated 21st August 2006 and 15th September 2006. Condition No.3 of the Government Resolution dated 21st August 2006, and Clauses 'a', 'b' and 'c' of the Government Resolution dated 21st August 2006 contemplate appointments to the said 471 permanent posts to be made only on contract basis for a period of 11 months and renewal of such appointment for two successive periods and then an artificial break in the service with the right to the original appointee to apply for selection again in a fresh selection process. Creation of such artificial breaks in the service is impermissible in law. If the posts are permanent, permanent appointments must be made to fill up the posts. Of course, on account of exigency of administration, temporary or ad hoc appointment can be made initially till a suitable candidate is selected through competitive selection process. But one ad hoc appointee appointed to a post cannot be replaced routinely (except where the appointee resigns or otherwise vacancy occurs before regular selection is made) by another ad hoc appointee without undertaking the process of selection of a permanent employee to the post. Otherwise this would only create arbitrariness and a tool in the hands of the State and its authorities to appoint or re-appoint a person to the same post while denying opportunity of appointment to the others. Clause No.3 of the Government Resolution dated 21st August 2006 and Clauses 'a', 'b' and 'c' of the Government Resolution dated 15th September 2006, are similar to the clauses contained in the Circular dated 1st September 1995, issued by the Inspector General of Police (Border) of Assam. On parity of reasoning and in the light of ratio of the decision of the Supreme Court in the case of Mohd. Abdul Kadir and another Vs. Director General of Police, Assam, and others (supra), they are required to be struck down.

16. Regarding Point No.4 : As we have already held that Clause No.3 and Clauses 'a', 'b' and 'c' of the Government Resolutions dated 21st August 2006 dated 15th September 2006, respectively, are void. In our view they are violative of Articles 14 and 16 of the Constitution of India. There can be no estoppel against a statute and there can be no estoppel against a constitutional provision. If the Government Resolutions or any parts thereof are unconstitutional, the original applicants cannot be estopped from challenging their virus or unconstitutionality merely because they have entered into the service on the basis of such Government Resolutions and / or have entered into the contracts in the form prescribed in the Government Resolution dated 15th September 2006.

17. Regarding Point No.5 : 471 posts of Legal Advisors, Law Officers and Law Instructors were created by the Government Resolutions dated 21st August 2006 and 15th September 2006. However, regular selection process was never undertaken. Nay even procedure for selectio has not yet been prescribed. Ordinarily Rules governing selection are framed and/or the process of selection is entrusted to the State Public Service Commission. But in the present case, ad hoc local committees consisting of 4 senior police officers and one Advocate or Government Pleader in the concerned district were constituted to nominate persons to be appointed as Legal Advisors or Law Officers on contract basis. No competitive examination was held but only on the basis of interview by such ad hoc local committees and without undergoing a regular selection process, the origial applicants were selected / nominated for appointment. This may have been necessary for ad hoc appointments on account of exigencies necessitated by requirement to appoint them with immediate effect. Though they cannot be replaced by another ad hoc appointees, they cannot acquire the status of permanency, nor can their appointments be made permanent in the light of the decision of a Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and others Vs. Umadevi & others, [2008 ALL SCR 134] (supra). A direction for regularization or permanent continuance of an ad hoc appointee cannot be issued unless the recruitment itself was made regularly and in terms of the constitutional scheme. As we are of the view that appointments of original applicants to 471 posts were not made in regular manner under the constitutional scheme, but they were appointed on an ad hoc basis, perhaps under the misconception that such contractual appointments can be made forever, the original applicants cannot claim permanency or regularization. We, therefore, are unable to grant the request of the original applicants for continuation of their appointments permanently or perpetually.

18. For these reasons, there is no merit in the Writ Petitions filed by the State nor is there any merit in the Writ Petitions filed by the original applicants. All the petitions are accordingly dismissed. In view of the mixed success, parties shall bear and pay their own costs throughout. Interim orders stand vacated.

Petition dismissed.