High Court
Case Details
WP(C) 662/2006 BEFORE HON’BLE MR. JUSTICE T.VAIPHEI
Legal Reasoning
Heard Mr. JI Borbhuiya, learned counsel for the petitioner. None appears for the respondents. 2. This writ petition is directed against the inaction of the respondent No . 1 in not appointing the petitioner to the post of Extension Officer (P) under the Bodoland Territorial Autonomous Council. The material facts are no longer in dispute. The petitioner, who is qualified for the post of Extension Officer (P) , had submitted as early as 1997 an application to the respondent No. 3 for appo inting him to that post under the Sidly Chirang Development Block. The Governmen t of Assam in the Panchayat & Rural Development Department vide their letter dat ed 16.10.1997 recommended his case for appointment to the said post against a va cant post. Subsequently, the application of the petitioner was forwarded by the State Government to the respondent No. 1 on the ground that the State had alread y delegated the power to appoint/recruit Grade-III to Grade-IV employees in the BTC areas. The respondent No. 1 instead of appointing the petitioner straight aw ay issued the letter dated 03.04.1991 addressed to the Project Officer DRDA, Kok rajhar approving the appointment of the petitioner as Extension Officer (P) agai nst the resultant vacancy on the resignation of one Santosh Kumar EO (P) in the office of the Block Development Officer, Sidli Development Block, Sidly. Subsequ ently, the Under Secretary to the Bodoland Autonomous Council, Kokrajhar in his letter addressed to the Secretary to the Govt. of Assam Panchayat & Rural Develo pment Department, Dispur informed him that the respondent No. 1 accorded re-appr oval for the appointment of the petitioner as Extension Officer (P) to the vacan t post lying in Sidli Chirang Development Block, Bongaigaon District with a requ est that the Department moved the SLEC for appointment of the petitioner after o bserving all necessary formalities from his end. By the letter dated 19.09.2002, the Deputy Secretary to the Government of Assam, Panchayat & Rural Development (R) Department informed the Director, Panchayat & Rural Development, Assam that BTC had forwarded, amongst others, the name of the petitioner for appointment to the post of Extension Officer (P) at Sidli, Chirang Development Block and reque sted him to furnish the vacancy position. In his letter dated 18.10.2002, addres sed to the Deputy Secretary to the Govt. of Assam, Panchayat & Rural Development Department, the Director, Panchayat & Rural Development, Assam informed that on e post of Extension Officer (P) at Sidli Chirang Development Block was lying vac ant as on that date. When the representation made by the petitioner did not prov e fruitful, he filed this writ petition by impleading the respondent No. 1 and t he State of Assam as party respondents. 3.
Decision
The writ petition is contested by the respondent-Council by filing their affidavit-in-opposition. The respondent No. 1 in their affidavits-in-opposition do admit that they accorded their approval for the appointment of the petitione r by the B.D.O. of Sidli-Chirang Development Block as Extension Officer (P) vide the letter dated 4-4-1998. The stance taken by the respondent No. 1 is that the appointment of the petitioner could not be made by them inasmuch as the BTC is not the appointing authority and the appointment of Extension Officer (P) is wit hin the purview of the Commissioner & Secretary, PNR of the State. Unfortunately , the State-respondents do not think it fit to contest the writ petition even th ough the lis has also become between them and the BTC inasmuch as the distributi on of powers between them is involved. Be that as it may, in the light of the Of fice Memoranda dated 22-10-2004 issued by the Secretary, Bodoland Territorial Co uncil, this writ petition can be disposed now without any difficulty. 4. The Office Memorandum dated 22-10-2004 says that the BTC has adopted the existing acts,/rules/norms/guidelines, etc. of the Government of India and Stat e Government till the adoption and adaptation of the existing Laws & Rules on th e Transferred Departments to the Bodoland Territorial Council. The Office Memora ndum dated 16-10-2004 issued by the Principal Secretary to the Government of Ass am, Welfare of Tribes and Backward Classes Department, Dispur provides for the a dministrative procedure and modalities for the purpose of day to day administrat ion in respect of the thirty-nine subjects/departments (excluding Relief & Rehab ilitation). Clause (H) is important, which reads thus: (cid:28)(H) BTC shall be competent to make appointment on all posts under its control i n accordance with the Rules of appointment followed/prescribed by the Govt. of A ssam. The Council shall constitute a Selection Board for appointment to be made by it and shall also make Rules, with the approval of Govt. of Assam, to regulat e appointments. All circulars relating to the filling up dof vacancies and appoi ntment issued by Govt. of Assam from time to time, shall be followed fully. (cid:29) 5. The provision extracted in the foregoing does not leave any roo m for doubt that it is the BTC, and not the Government of Assam, which is the co mpetent authority to appoint Extension Officer. This is consistent with the prec eding provision, namely, Clause (G), which says that the BTC shall have full con trol over the officers and staff connected with the entrusted subject, working i n the BTC area and shall be competent to transfer these officers and staff withi n the BTC area and that ACRs of these officers shall also be written by the appr opriate BTC authority. In my opinion, the respondent No. 1 has completely overlo oked Clause (H) of the Office Memorandum and has in the process committed error in holding that it is the State Government which has the power to appoint Extens ion Officer (P): the post is, after all, a Grade-III post. The question to be de termined now is whether at this belated stage, it will be advisable to direct th e respondent No. 1 to consider the appointment of the petitioner to the post of Extension Officer (P) in accordance with law when the only difficulty expressed by them for not issuing his appointment order is that they are not the appointin g authority for the post. In my opinion, when the case of the respondent No. 1 i s not that the petitioner is not eligible for the post or that there is any lega l impediment in his appointment, this Court can certainly issue positive directi on upon them to appoint him to the post in question subject to police verificati on. It is a settled proposition of law that where the range of choice has been c ut down to such an extent that only one decision is possible, a writ court may s pecifically direct the authority to act in a particular manner.?See Union of Ind ia v. Anglo-Afghan Agencies, AIR 1968 SC 718. 6. For what has been stated in the foregoing, this writ petition succeeds. The respondent No. 1 is, therefore, directed to appoint the petitioner to the p ost of Extension Officer (P) in the Office of the Block Development Officer, Sid li Chirang Development Block, subject to police verification, within a period of two months from date of receipt of this judgment.