Judgment · High Court · 2009

#2. In both the writ petitions, the order dated 9.3.2010 whereby and whereun der the petitioners’ services were terminated by the Commissioner and Secretary to the Government of Assam in the Secretariat Administration Department have bee n impugned.

#3. Heard Mr. PK Goswami, learned Senior counsel assisted by Mr. M Bhuyan, A dvocate, in WP(C) No.2184/2010 filed by 28 petitioners and Mr. M Choudhury, lear ned counsel in WP(C) No.5645/2010 filed by 12 petitioners. Also heard Mr. RK Bor a, learned Additional Senior Govt. Advocate for the State respondents and peruse d the records made available before this Court.

#4. The admitted facts leading to issuance of this cumulative impugned order may be summarized as follows: a. The writ petitioners on being subjected to a selection process were appo inted in the posts of Lower Division Assistants (LDA for short) in the Assam Sec retariat under the Secretariat Administration Department, Govt. of Assam on Ad h oc basis with full time scale of pay. By different office orders but containing similar Office Memo No.S(E)/70/2001/3 dated 30.03.2001 issued by the Commissione r & Secretary to the Government of Assam, Secretariat Administration: Estt. Depa rtment. The petitioners were appointed temporarily as LDA against ckear vacancie s under Secretariat Administration Department on Ad hoc basis. In the appointmen t orders it was clearly mentioned that the same were issued with due clearance o f SLEC, i.e. State Level Empowered Committee. However, these appointment orders stood cancelled after the writ petitioners have reported for joining in their po sts vide Orders contained in NO. S(E)70/2001/30 dated 19.05.2001 issued by the C hief Secretary to the Government of Assam on the ground that: (i). the appointments were made in gross violation of the provisions of Assam Se cretariat Subordinate Service Rules, 1963 (’Rules’ for short), inasmuch as, unde r the said Rules the Chief Secretary is the appointing authority of the Lower Di vision Assistants while the appointments orders in question were made by the Com missioner & Secretary, Secretariat Administration Department, (ii) Appointments were made without the knowledge of the Chief Secretary and, (iii) That the relaxation of the Rules for making appointment was illegal.

#5. These orders came to be challenged before this Court by a series of wri t petitions, viz. W.P.(C) Nos. 3677/2001, 4299/2001, 4303/2001, 4324/2001, 4327/ 2001 & 4354/2001 which stood dismissed by order dated 28.09.2001, passed by a Si ngle Bench of this Court. The judgment of the Single Bench being challenged in W .A. Nos. 429/2001, 430/2001, 431/2001, 432/2001 & 436/2001, Division Bench of th is Court allowed the said appeals vide judgment and order dated 16.09.2002, sett ing aside the judgment and order dated 28.09.2001 passed in the writ petitions a s well as the impugned order of cancellation dated 19.05.2001 with a direction t o the State respondents to take back the writ appellants/writ petitioners in ser vice within a period of 3 weeks from the date of receipt of certified copy of th e Judgment and order passed in the writ appeals by issuing necessary orders, wit hout, however, payment of any arrear salary. The judgment of the Division Bench was based on the principal premise that the impugned orders of cancellation of a ppointments having involved civil consequences depriving the legitimate rights o f the appointees, the termination of services without giving prior notice and op portunity to the appellants/writ petitioners were bad in law. One of the grounds of issuance of the termination orders on the reason of wrong relaxation of the Rules has been answered by the Division Bench to the effect that while it is not disputed that there is a relaxation clause in the related recruitment Rules, th e same was relaxed so as to achieve effective implementation of the good Policy of the Government i.e., special recruitment.

#6. The writ appellate judgment of this Court dated 16.09.2002 having been c hallenged by the State Authorities before the Hon’ble Supreme Court vide Civil A ppeal Nos. 8305-09 of 2003, the said appeals were disposed of by the Apex Court vide judgment & order dated 19.11.2009 holding as thus; (cid:28) & &..The High Court in the impugned order has held that before cancelin g the appointments the respondents should have been given an opportunity of hear ing. We agree with this observation of the High Court. Hence, we see no reason t o interfere with the impugned judgment and order of the High Court. It is open f or the State Government to now give an opportunity of hearing to the respondents and thereafter pass appropriate orders. We direct that the State Government sha ll pass such orders latest by 31st January, 2010 after giving opportunity of hea ring to the respondents. If no orders are passed by the State Government by the said date, respondents will be reinstated forthwith. (cid:29) 7. The said time limit of 31.01.2010 was extended upto 15.03.2010 by a subs equent order of the Apex Court dated 29.01.2010. Thereafter, in terms of the afo resaid observation of the Hon’ble Apex Court, fresh notices were issued on the w rit Petitioners on 18.12.09 and thereafter in supersession thereof on 22.01.2010 again fresh notices were issued to the petitioners. The text of the said notice is quoted hereunder : (cid:28) &.In pursuance of the judgment and order dated 19-11-2009 passed by the Hon’ble Supreme Court of India in Civil Appeal No. (S) 3805-3809 of 2003 (State of Assa m -Vs- Khargeswar Bora and others) regarding appointment of Lower Division Assis tant and in continuation of this department’s Notice No. S(E) 102/2001/pt.IV/213 dated 18-12-2009 and in consideration of the representation received from the r espondents in pursuance of the said notice it is felt necessary to issue a fresh notice. Accordingly this notice has been issued as below :- I, Shri Khargeswar Bora, S/o Late Nareswar Bora, 2. Shri Mukut Deka, S/o- Late B hagawan Ch. Deka, 3. Shri Amal Ch. Das, S/o Sri Lohit Ch. Das, 4. Sri Utpal Tamu ly, S/o- Sambhu Ram Tamuli, 5. Shri Dipak Talukdar, S/o- late Gopinath Talukdar, 6. Sri Manabendra Sarma, S/o- Sri Sarat Ch. Sarma, 7. Sri Nipon Mahanta, C/o- S ri Sarat Ch. Mahanta, 8. Sri Apurba Kr. Barua, S/o Sri BN Barua, 9. Shri Iftikar Rahman, S/o- Rejibur Rahman, 10. Sri Dipjyoti saikia, S/o- Sri Munindara Nath S aikia, 11. Sri Deba Prasad Bora, S/o- Sri Bapi Ram Bora, 12. Mrs. Tilu Khataniar , D/o- Late Duti Khataniar, 13. Smti Riju Mani Bora, D/o- Lalit Ch. Bora, 14. Sr i Ajit Nath, S/o- Biren Kr. Nath, 15. Sri Mukut Ranjan Sarma, S/o- Homeswar Sarm a, 16. Shri Kamaluddin Ahmed, S/o- Abu Bakkar Siddik, 17. Sri Gobinda Sarma, S/o -Agni Sarma, 18. Sri Madhab Ch. Goswami, S/o- Late Hirendra Nath goswami, 19. Sr i Jiten Bora, S/o- Late Ganashyam Bora, 20. Sri Ranjit Borah, S/o- Giri Kanta Bo ra, 21. Sri Rohini Kanta Kalita, S/o- Nagen Kalita, 22. Sri Alokesh Borah, S/o- Late Padma Kanta Bora, 24. Smti Irani Borah, W/o- Pulin Ch. Borah, 24. Sri Mrinm oy Kr. Bora, S/o- Sri Sachi Kanta Bora, 25. Sri Dharmeswar Hazarika, S/o- Sri Da mbaru Hazarika, 26. Sri Akhtarul Alam, S/o- Nurul Islam, 27. Sri Bolin Sarma, S/ o- Late Ganesh Ch. Sarma, 28. Sri Dhrubajyoti Sarma, S/o- PC Sarma, 29. Md. Fari zul Haque, S/o-Late Kamaluddin Ahmed, 30. Sri Ritu Raj Dutta, S/o- Sri Dwijendra Nath Dutta, 31. Sri Gautam Gogoi, S/o- Sri Moniram Gogoi, 32. Sri Rajib Bora, S /o- Sri Jiten Saikia. Whereas you were appointed temporarily as a Lower Division Assistant in the Assa m Secretariat Subject to discharge without notice and without assigning any reas on thereof vide the Secretariat Administration Department order dated 30th March , 2001 and whereas. (1) Your appointment order was issued in gross violation of the Assam Secretaria t Subordinate Services Rules 1963 and without following proper procedures and no rms. (2) These appointment orders were issued in gross violation of the said Rules as the Chief secretary to the Government of Assam, who is the Appointing Authority under the Rules, was neither consulted nor informed about the issuance of Appoi ntment Orders. (3) As per Rule 11 A of the said Rules, due clearance for the Selection Committe e constituted by the Appointing Authority has to be obtained, which was not adhe red to in the present case. (4) Select list was not placed before the Appointing Authority for his approval. (5) Ex-post facto approval given by the Cabinet for such appointments was not ba cked by the law as the said Rules does not provide for relaxation of recruitment /appointment rules by the Cabinet. (6) The Cabinet Memorandum dated 12-04-2001 for appointment placed before the Ca binet was not routed through the Chief Secretary, but was placed to the Cabinet by the Commissioner & Secretary to the Government of Assam, Personnel Departmen t. (7) Relaxation of the Rules made for appointment was illegal. Therefore, you are required to show cause as to why the said appointment order w ill not be cancelled. You are hereby requested to submit written representation in support of your claim, if any and also appear personally before the Commissio ner & Secretary, Secretariat Administration Department and attend hearing on 28- 01-2010 at 11 am in the Conference Hall of General Administration Department in the 2nd Floor of ’A’ Bloc, Assam Secretariat, Dispur, Guwahati. (cid:29) 8. The Writ Petitioners responded to the aforesaid notices by way of repres entations contending inter alia, that the grounds raised in the Notice dated 22. 01.2010 had already been covered by the findings of the High Court and affirmed by the Hon’ble Supreme Court. As such, the grounds mentioned in the Notice amoun ted to overreaching the judgments in question, as the same had already been reje cted and such rejection has also attained finality. In support, reliance was pla ced upon the findings and observations recorded in the common judgment rendered in the writ appeals, by quoting the relevant portions of paragraphs 8, 9, 10 and 14 thereof. It was also contended that the Apex Court did not interfere with th e said findings and the same still holds good and has attained finality.

#9. However, without considering the representations so filed, the impugned office order No.S(E).102/2001/Pt.IV/269 dated 09.03.2010, under challenge in the se writ petitions, were passed by the Commissioner & Secretary to the Government of Assam in the Secretariat Administration Department treating the appointment orders of the petitioners as illegal and hence cancelled. While passing the impu gned order, the State Authorities stuck to its earlier decision of canceling the appointment orders holding the same (cid:28)ab initio void and illegal (cid:29) on the plea th at the same (cid:28)were made exercising the power of relaxation of conditions of recru itment arbitrarily in the garb of the said policy decision. (cid:29) The findings of fac ts recorded in the order dated 09.03.2010 reveals that the approval of the State Level Empowered Committee was also taken to fill up the vacant posts and that t he Chief Secretary was the Chairman of the said State Level Empowered Committee. However, it is contended in the order that although at the relevant point of ti me the Chief Secretary to the Government of Assam was the appointing authority f or the posts in question under the Rules, the appointment orders were issued wit hout consulting the Chief Secretary and his approval was not taken. The cancella tion of appointments are sought to be justified on the premise that the approval of the Chief Secretary as the Chairman of the State Level Empowered Committee i s construed to be confined to allowing vacant posts to be filled up without any further reference to appointment of specific persons while the actual appointmen ts are to be made by the corresponding authorities as per the existing rules. Th us, it is contended in the order dated 9.03.2010 that the Chief Secretary as the appointing authority did not accord approval before the appointment orders were issued by the Commissioner & Secretary, Secretariat Administration Department. It is further contended that the Cabinet Memorandum dated 12.04.2001 was not rou ted through the Chief Secretary making a departure from the rules and norms in t his regard. However, the authenticity, veracity and legality of the approval giv en by the State Cabinet in its meeting of 16.04.2001 vide Cabinet Memorandum dat ed 12.04.2001 are not challenged. The point regarding approval of the State Leve l Empowered Committee is answered in the order dated 9.03.2010 to the effect tha t the role of the said committee is limited to clearing the vacant posts to be f illed up meaning thereby that in the absence of the clearance of the State Level Empowered Committee, no vacant post of any department can be filled up in any m anner by the appointing authority, thereby trying to make a distinction that the clearance of the State Level Empowered Committee and the approval of recruitmen t and selection are two distinct matters and can not be substituted for each oth er. The order dated 9.03.2010 has been challenged by the writ petitioners ma

#10. inly on the following grounds : (I) That the State Authorities had tried to misdirect and misinform this Cou rt at various stages regarding the status of approval of State Level Empowered C ommittee. While the appointment orders clearly state that the appointments were cleared by the State Level Empowered Committee, in earlier series of writ petiti ons it was a categorical stand of the respondent authorities by way of affidavit that no clearance or approval was obtained from State Level Empowered Committee for appointment of 67 LDAs and 1 Lokokanya (Jr.) in Assam Secretariat. However, there is a clear reversal and change of stand by the State Government now, inas much as, the order dated 09.03.2010 categorically admits of approval of the Stat e Level Empowered Committee in respect of appointment made in the 67 posts of Lo wer Division Assistants and also the fact the Chief Secretary was in fact the Ch airman of the said State Level Empowered Committee. (II) The second ground of challenge is that the impugned order dated 9.03.201 0 is self contradictory in respect of the role of the Chief Secretary inasmuch a s while the Chief Secretary’s role and consequent knowledge of the entire matter right from the stage of State Level Empowered Committee’s approval (the Chief S ecretary being its Chairman) to the stage of Cabinet Approval (Chief Secretary b eing the Ex Officio Secretary of the Cabinet) is not denied, the stand that his approval as appointing authority was not taken in issuing the appointment orders and that the appointment orders were not issued by him contrary to the Rules ca nnot be sustained. (III) The third ground of challenge is that the Commissioner & Secretary to th e Government of Assam Secretariat and Administration Department who passed the i mpugned order dated 9.03.2010 is not competent to review the State Policy approv ed by the State Cabinet in terms of which the appointment orders in question wer e made. 11. The plea of the Government regarding the appointment orders being contra ry to Rules for the same having not been issued by the appointing authority i.e. the Chief Secretary is answered by the writ petitioner urging that the same Chi ef Secretary having accorded the approval of the State Level Empowered Committee thereby clearing the recruitment process and being a part of the process of the Cabinet approval being its Ex Officio Secretary can not now turn volte face on the ground that the appointment orders were in fact not issued by its seal and s ignatures. Examples have been cited as regards appointment orders of various per sons under similar posts in the Assam Secretariat made under the seal and signat ure of Deputy Secretary/ Under Secretary to the Personnel Department. It is furt her contended that relaxation of rules made, if any, in the instant case is perm issible within the framework of the said rules itself and the same having been m ade in respect of a class of a person under exceptional circumstances to give ef fect to a State policy in public interest, the said relaxation of rules can not be faulted with.

#12. Before answering the grounds of challenge set forth by the Writ Petition ers, it is also important to note some facts as appearing in the pleadings. Admi ttedly the Writ Petitioners are beneficiaries of a State Policy to rehabilitate the civilians who had suffered due to militant activities of the State or had ex tended help and co-operation to the Government to abate militancy. The conspicuo us presence of a letter issued by the Commissioner & Secretary to the Government of Assam, Personnel, GAD, SAD Departments to the General Secretaries of various employees associations issued on the same day of the date of the termination or ders i.e. 19.05.2001 is also not explained by the State authorities. However, th e argument of the writ petitioners pointing out malice and extraneous considerat ions playing behind the issuance of the termination orders notwithstanding, the termination orders dated 19.05.2010 and the order dated 9.03.2011 confirming tho se termination orders have to be tested on the touchstone of constitutional para meters.

#13. Nothing has been brought in complete terms by the State respondents to e stablish that the writ petitioners do not possess the requisite educational and other qualifications prescribed under law to hold the post in question. As such, the court will proceed on the basis of assertions of the writ petitioners that they are all graduates in different streams and fulfilled the eligibility criter ia laid down under the relevant Rules. The next question is whether they could h ave been appointed in the manner as has been done in the instant case and whethe r the appointments are de-horse the Rules and accordingly void ab initio. The S tate as the employer had formed the State Level Empowered Committee wherein the Chief Secretary himself was the Chairman and had cleared appointment in respect of the posts in question against which the writ petitioners have been appointed. It is not contested that the posts were either non-sanctioned or that they were not lying vacant for recruitment. Admittedly, the Government at the appropriate level had relaxed the Rules in exercise of its powers of relaxation available u nder the Rules itself and the said relaxation is made in terms of the public pol icy approved by the State Cabinet which is the highest collective decision makin g authority in the State. The relaxation has been made for a class of persons on definite qualifying terms within legally known permissible parameters. The basi c qualifications stipulated under the rules for an appointee has not been relaxe d. It is only in the realm of the source and the process of recruitment that a d eparture has been made to give effect to the Cabinet approved public policy whic h remains on record and has not been reviewed or changed. In view of the same, i t is not for the Commissioner & Secretary to the Government in its Secretariat A dministration Department to pass the impugned order dated 09.03.2010 revalidatin g the termination orders dated 19.05.2001 on the grounds stipulated therein. The State Policy adopted by the Cabinet can not be rescinded by an Executive Office r of a Government Department on the plea that the related Cabinet Memorandum on the basis of which the State Policy stood adopted was not routed through the Chi ef Secretary; fact remains that the Chief Secretary being the Ex Officio Secreta ry of the Cabinet itself have the full knowledge of the said Cabinet Memorandum and there is nothing on record to show that the said Chief Secretary had in any manner disowned the veracity or genuineness of the Cabinet Memorandum at any sta ge before or after its adoption and approval by the State Cabinet on 16.04.2001. The same Chief Secretary is also the Chairman of the State Level Empowered Comm ittee which cleared the recruitment process in the post in which the writ petiti oners were appointed. The objection regarding the violation of the rules on this count stating that neither the Chief Secretary approved of the appointment orde rs nor had issued the same is of no avail inasmuch as the appointment orders wer e issued after the State Level Empowered Committee headed by him had approved of the same and the State Cabinet which formulated the policy under which the writ petitioners were appointed acted on the basis of the Cabinet Memorandum while t he same Chief Secretary was its Ex-Officio Secretary. It has never been the case of the State Respondents that the particular officer who had issued the appoint ment orders had acted on his own individual discretion without the valid sanctio n of the higher authorities. The Chief Secretary under the aforesaid circumstanc es cannot plead either his ignorance or disapproval in the process of issuance o f the appointment orders. The allegation of the change of stand being actuated b y change of political power running the State Government in the intervening peri od of appointment and termination orders as alleged by the writ petitioners also has been taken note of by the Hon’ble Apex Court in the order dated 19.11.2009. The State policy in terms of which the writ petitioners were appointed having n ot been struck down by any subsequent State Cabinet, it is not for the Commissio ner & Secretary of the Government to disown the said State Policy merely on the procedural ground of the Cabinet Memorandum not been routed through the Chief Se cretary while the fact remains that the same Chief Secretary was the Ex-Officio Secretary of the Cabinet approving the Cabinet Memorandum. The relaxation of the Rules made under a valid State Policy in terms of relaxation clause stipulated under the same very set of Rules also cannot be faulted with. The ground of the appointment orders being illegal for the same being not issued by the Chief Secr etary is also too fragile to sustain judicial scrutiny on grounds and the circum stances discussed hereinabove.

#14. The leave graciously granted by the Apex Court to the State to pass appr opriate orders after giving opportunity of hearing to the respondents is not one of matter of course. Such leave has to be exercised prudently, reasonably and o n grounds based on acceptable parameters of law. The right of hearing and afford ing of opportunity to the affected persons is not a mere compliance of formality . The records produced by the learned State counsel do not reveal any enquiry as contemplated by law was initiated. The manner in which the identity and capacit y and the relative powers to be exercised by the Chief Secretary has been sought to be severed, cannot be supported in the facts and circumstances of the case. The knowledge and approval is that of a person holding a particular post, the sa me person holding a particular post by virtue of it holding the said particular post being a party to a process of approval in a committee cannot later on feign ignorance and plead disapproval of the same. In fact, on earlier occasion the S tate respondents on affidavit had pleaded total nonexistence of the State Level Empowered Committee’s approval in respect of the same very set of appointments w hile in the order dated 9.03.2010 for the first time the authorities admit the e xistence of State Level Empowered Committee’s approval, albeit trying to infuse new explanation to the same to suit their end. It is true that the executives ha ve to be sentinels of preserving the rule of law in the State. But the paramounc y of the decision of the State Cabinet and its implementation cannot be mellowed down under changed circumstances.

#15. The sum total of the aforementioned discussion leads this Court to the i nevitable conclusion that the appointment of the petitioners made vide orders da ted 30.03.2001 cannot be faulted with. Consequently both the orders dated 19.05. 2001 and 9.03.2010 terminating services of the petitioners are set aside and qua shed. Further, the learned counsel appearing for the petitioners have brought to the notice of this Court the order dated 6.4.2010 passed by this Court in WP(C) No.2184/2010 whereby, while issuing notice of motion in the said writ petition, this Court also passed an interim order to the effect that until further order, 67 posts of LDA in the Assam Secretariat shall not be filled up without obtaini ng leave of this Court either by direct recruitment or selection or promotion. S imilar order has been passed on 8.10.2010 in WP(C) No.5645/2010 also. It has fur ther been submitted at the Bar that the interim orders so passed by this Court a re continuing till date.

#16. In view of the same, the Government is directed to reinstate the petitio ners in the post of LDA wherein the petitioners were appointed vide appointment orders dated 30.3.2001 as expeditiously as possible but not later than 8 (eight) weeks from today. The petitioners, however, will not be entitled to any arrear salary for the period they have not worked.

#17. The writ petitions accordingly stand allowed with the above directions.

#18. o costs. In the facts and circumstances of the case, there shall be no order as t