High Court · 2012

s resulting in denial of equal opportunity to other eligible candidates. Learned Single Judge, after considering the rival submissions, held : (cid:28) & If the criterion revealed by this letter is any guide, then on the date of th e issuance of the letter, both the petitioner and the Respondent No.6 were eligi ble for being considered for the post of Assistant Planning Officer. Having rega rd to the fact that the Respondent No.6 has not been regularly appointed to the post of Planning Assistant and Assistant Planning Officer, his induction in the office of the District Elementary Education Officer, Cachar as Assistant Plannin g Officer, seemingly to be on regular basis and that too on his request, treated to be as a special case, cannot be sustained in law. The process preceding the said move as is justified by the documents appended to the affidavit of the Stat e Respondent, as detailed hereinabove, does not exhibit any semblance of complia nce of any procedure envisaged under the constitutional scheme of appointment to public office, absence of service rules, notwithstanding. In the estimate of th is Court, appointment for public employment being involved, it was incumbent on the part of the Respondent authorities to unfailing adhere to a fair, non-arbitr ary and transparent procedure therefor. The post of Assistant Planning Officer, it is submitted at the Bar, is higher in rank than that of the Planning Assistan t and, therefore, as the Respondent No.6 is admittedly not regularly appointed t o the next lower post, he cannot in law, be drafted to the higher office in the manner done. The order dated 04.09.2000 passed by this Court in WP(C)No.4619/200 0, on a plain reading thereof, does not absolve the State Respondents from their solemn obligation to conform to the fundamental precepts pertaining to recruitm ent to a public office. Consent and readiness of an incumbent to assume a post i n State service by disregarding the procedure contemplated therefor cannot valid ate his induction. Absence of Rules per se in the unhesitant opinion of this Cou rt, cannot thus legalise the order impugned herein. Conferment of gazetted statu s on the post of Assistant Planning Officer in the facts and circumstances of th e case, even assuming empowers the departmental authorities higher in ranks than that of the Director, to exchange incumbents between the Directorates, in the f actual premise does not save the transfer and posting of the Respondent No.6 fro m the office of the Inspector of Schools, Hailakandi District Circle to that of the District Elementary Education Officer, Cachar. Significantly, the State’s co unter do not endorse the Respondent No.6’s stand of effacement of the directoria l divide even for gazetted posts.

15. The official records, referred to hereinabove, on the other hand, sugges t against the permissibility of election by an incumbent in one Directorate to o pt for another even against an equivalent post or vice versa. The written instru ctions produced in the course of the arguments also reveal that the Directors of Elementary and Secondary Education are not competent to effect transfer of incu mbents from one Directorate to another. Though in the facts of the instant case, intervention of a higher authority is discernible, the same in the teeth of the fundamental and the cardinal axioms governing the process of recruitment to pub lic office, it cannot validate the impugned action.

16. On a totality of the considerations hereinabove, challenge to the impugn ed order dated 12.04.2005 is upheld. The said order transferring and posting the Respondent No.6 in WP(C) No.6356/2006 to the post of Assistant Planning Officer in the office of the District Elementary Officer, Cachar from the establishment of the Inspector of Schools, Hailakandi District Circle is hereby annulled. The Respondents, in the attending facts and circumstances are hereby dir ected to lay down the norms/criteria of uniform application for recruitment to t he posts of Planning Assistant, Statistical Assistant and Assistant Planning Off icer and thereafter consider the cases of the parties therein as well as other i ncumbents similarly situated for promotion/recruitment thereto on regular basis. It would be open for the State Respondents, if so advised, to adopt any of the existing rules for other departments for the purpose as deemed fit and proper so as to allay any misgiving in this regard and dispel all uncertainty in the proc ess. The authorities concerned, after the framing of the Rules and/or the norms and guidelines etc. would properly circulate the same and conduct the process in accordance therewith so as to ensure transparency, precision and fairness in th e exercise. (cid:29) We have heard learned counsel for the parties. We have been informed that in compliance of the order of learned Single Judge th e appellant has been reverted to the post of Planning Assistant. Only grievance which learned counsel for the appellant has put forward is that the appointment was temporary for which no rules were required to be followed and therefore, ord er of learned Single Judge is not justified. We are unable to accept the submission. Assuming the appointment was temporary, the appellant had already worked for a period of four years till the passing of order of learned Single Judge and thereafter the appellant had no right to conti nue in the higher post without any norm being followed. We, thus, do not find any ground to interfere with the order of learned Single J udge. It is made clear that the department will be at liberty to make any fresh appointment in accordance with law. The appeal is disposed of.