High Court · 2009

5. In the reply affidavit filed by the petitioner, such stand on the part o f the respondent No. 7 has been denied. While reiterating and reaffirming the st atements made in the writ petition, it has been stated that the respondent No. 7 has been recommended illegally as per dictation of the Minister on whose recomm endation, the Selection Committee acted ignoring the merit positions obtained by the candidates Mr. S. Saikia, learned counsel for the petitioner argued that there cann 6. ot be any better example than the present case in the matter of public employmen t on extraneous consideration. Mr. A. S. Choudhury, learned Sr. Counsel, assiste d by Md. Mominul, learned counsel for the respondent No. 7, while admitting the factual aspects of the matter and that as per the merit position, it is the peti tioner who should have been appointed, submitted that perhaps the respondent No. 7 is entitled to reservation in the matter of employment, he being a member of the minority community.

7. I have considered the submissions made by the learned counsel for the pa rties and the materials available on record. I have given my anxious considerati on to the same.

8. There cannot be any second opinion to the irresistible opinion and concl usion, which could be formed in the glaring and staring factual aspects of the m atter. The irresistible opinion and conclusion is that the merit has been ignore d and the desire of the particular Minister has been preferred shamelessly by th e members of the Selection Committee. As noted above, the petitioner secured total 88.16 marks as against 78 m 9. arks secured by the respondent No. 7. In the selection, the petitioner secured 1 st position while the respondent No. 7 secured 5th position. Thus, there could n ot have been any choice other than the petitioner who is also entitled to reserv ation provided for women. However, since she could come out successful on her ow n merit, irrespective of such reservation, there was no escape from appointing h er to the post in question. On a bare perusal of the minutes of the meeting held on 22.12.2008, it is seen that in all other categories, candidates have been re commended on the basis of merit positions except the one with which the present proceeding is concerned. The minutes of the meeting has shamelessly mentioned ab out the recommendation of the Minister of Food & Civil Supplies and Minority Aff airs in favour of the respondent No. 7. The particular observation of the commit tee is quoted below: (cid:28)The Committee had examined the list No. III (Bench Asstt.) which contains 6 nam es. In this connection the Committee has considered the recommendation of the Ho n’ble Minister Food & Civil Supply & Minority Affairs for Md. Nabi Hussain. The Committee had discussed the matter with all the members present and considered r ecommendation of Hon’ble Minister for appointment of Md. Nabi Hussain as a speci al case for the Post of Bench Assistant. (cid:29)

10. The Selection Committee consisted of the responsible officers like - Dep uty Commissioner, Additional Deputy Commissioner, Sub-divisional Officer, Distri ct Employment Officer and the Member of the Foreigners Tribunal of the district and all of them readily agreed to the proposal made by the Minister for appointm ent of the respondent NO. 7 ignoring the merit position obtained by the candidat es, in which the petitioner stood 1st securing the highest marks among the candi dates. Such conduct on the part of the members of the Selection Committee is unb ecoming of the conduct expected from a Government Officer. They did not act keep ing their head high and maintaining absolute integrity, but acted as per the cho ices of the said Minister, for which they are liable for departmental proceeding s.

11. n (Tarlochan Dev Sharma Vs. State of Punjab) reported in (2001) 6 SCC 260. The above episode has reminded me of the observation of the Apex Court i (cid:28)In the system of Indian Democratic Governance as contemplated by the Constituti on senior officers occupying key positions to mortgage there own discretion, vio lation and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands ha ving no sanctity in law. The Conduct Rules of Central Government Services comman d the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of p ower conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In (Anirduhsinhji Karan Si nghji Jadeja JT 1995 (9) SC 603=1995 (5) SCC 302) this Court has held that a sta tutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some high er authority is failure to exercise discretion altogether Observations of this C ourt in (The Purtabpur Company Ltd., AIR 1970 SC 1896), are Instructive and appo site. Executive Officers may in exercise of their statutory discretions take int o account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the polic y but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instru ctions by a superior to bind them. (cid:29)

12. Although, during the course of hearing a feeble attempt was made on beha lf of the respondent No. 7 to project his case as one of reservation for the min ority community, but from the materials on record, I do not find that any such r eservation has been provided for the minority community, rather, it is the petit ioner, who is entitled to claim reservation for women. However, since she has be en selected on her own merit and has occupied 1st position in the merit list, sh e not harped upon that. Merely because the particular Minister desired appointme nt of the respondent No. 7 and the members of the Selection Committee readily an d shamelessly agreed to implement such desire of the minister, it cannot be proj ected to be a case of reservation for minority community. The stand of the respo ndent No. 7 in his affidavit, playing the cards of majority and minority is also unfortunate more so, when the facts in the present proceeding speak otherwise.

13. For all the aforesaid reasons, the writ petition is allowed directing th e respondents to appoint the petitioner forthwith in the post of Bench Assistant in the office of the Foreigners Tribunal No. 2, Morigaon. Consequently the reco mmendation No. 3 in the minutes of the meeting of the Selection Committee held o n 22.12.2008 (Annexure-6) stands set aside and quashed alonwgith all consequenti al actions/orders towards implementation of the same.

14. The Registry shall send a copy of this judgment and order to the Chief S ecretary of the State enabling him to take appropriate action against the member s of the Selection Committee after providing them adequate opportunity of being heard. Let a copy of this judgment and order be also sent to the Chief Minister of the State for appraisal of the ministerial interference even in the matter of public employments.

15. The writ petition is allowed imposing a cost of Rs. 10,000/- against the members of the Selection Committee who are the party respondents No. 2, 3, 4, 5 and 6 to be borne by each one of them in equal shares. The Registry shall reali ze the cost in accordance with the rules, if the same is not deposited by the sa id respondents within a period of one month from today.