IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.2184/2010
1.Shri Manabendra Sarma, Son of Sri Sarat Ch. Sarma, Resident of Durga Sarobar, Kamakhya Gate, P.O. Bharalumukh, District- Kamrup, Assam.
2.Shri Khargeswar Bora, Son of Late Nareswar Bora, Resident of Vill & P.O.-Tulashimukh, District- Nagaon, Assam.
3.Shri Mukut Deka, Son of Late Bhagawan Ch. Deka, Resident of Ananda Nagar, Bye-Lane No.1, P.O. Noonmati, District- Kamrup, Assam.
4.Shri Utpal Tamuly, Son of Sambhu Ram Tamuly, Resident of Vill-Abhaypur, P.O.- College Nagar, Guwahati-31, District- Kamrup, Assam.
5.Shri Paban Kumar Hazarika, Son of Sri Joynath Hazarika, Village-Bisoyachook, P.O. Puranigudam, District- Nagaon.
6.Shri Nipan Mahanta, S/o Sri Sarat Ch. Mahanta, Resident of Vill & P.O.-Sualkuchi, District- Kamrup, Assam.
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7.Shri Apurba Kr. Baruah, Son of Sri BN Baruah, Resident of Village- Kachalukhowa, P.O.-Nagaon, District- Nagaon, Assam.
8.Shri Mriganka Kumar Baruah, S/o Shri Jugal Mohan Baruah, Resident of Hatigaon, Guwahati, District- Kamrup.
9.Shri Ashim Jyoti Moral, C/o Dr. Bhagaban Moral, Fatasil G.S. Colony, Guwahati, District- Kamrup.
10.Shri Jitu Moni Hazarika, C/o Shri Thuleswar Hazarika, Village & P.O.-Debnarikali, District- Nagaon.
11.Shri Pranab Kumar Sarmah, S/o Late Guna Ram Sarmah, Village & P.O.-Borangutoli, District- Nagaon.
12.Shri Iftikar Rahman, Son of Rejifur Rahman, Resident of Vill- Ghutulai Patty, Haibargaon, District- Nagaon, Assam.
13.Shri Dipjyoti Saikia, Son of Sri Munindra Nath Saikia, Resident of Town Panigaon, Nagaon, District- Nagaon, Assam.
14.Shri Deba Prasad Bora, Son of Sri Bapi Ram Bora, Resident of Vill-Maukhati, PO-Ronthali, District- Nagaon, Assam.
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15.Mrs. Tilu Khataniar, Daughter of Late Duti Khataniar, Resident of Vill-Maukhati, PO-Ronthali, District- Nagaon, Assam.
16.Smti Riju Moni Bora, Daughter of Lalit Ch. Bora, Resident of Vill-Poruagaon, PO-Biharigaon, District- Nagaon, Assam.
17.Shri Gobinda Sarma, Son of Sri Agni Sarma Resident of Vill-Jyoti Nagar, PO-Bokakhat, District- Golaghat, Assam.
18.Shri Madhab Ch. Goswami, Son of Late Hirendra Nath Goswami, Resident of Vill-Namgaon, PO-Borbhogia, District- Nagaon, Assam.
19.Shri Jiten Bora, Son of late Ghanasyam Bora, Vill & PO-Kuwarital, District- Nagaon, Assam.
20.Shri Ranjit Borah, Son of Giri Kanta Borah, Resident of Vill-Teliagaon, PO- Pubthuria, District- Nagaon, Assam.
21.Shri Santanu Kumar Baruah, Son of Late Nanda Nath Baruah, Resident of Bamunimaidam, Opposite FCI Go down, Guwahati, District- Kamrup, Assam.
22.Shri Rohini Kanta Kalita, Son of Nagen Kalita, Resident of Vill-Fatepur, PO-Agia, District- Goalpara, Assam.
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23.Smti Irani Borah, Wife of Pulin Ch. Borah, Assam Tribune Office, Guwahati-3, District- Kamrup, Assam.
24. Shri Mrinmoy Kr. Bora, Son of Sri Sachi Kanta Bora, Resident of RRB Road, South Haiborgaon, District- Nagaon, Assam.
25.Shri Dharmeswar Hazarika, Son of Late Dambaru Hazarika, Resident of Vill-Nam Kariyani, District- Nagaon, Assam.
26.Shri Akhtarul Alam, Son of Late Nurul Islam, Resident of Azad Nagar, PO-Suta Haibar, District- Nagaon, Assam.
27.Shri Dhrubajyoti Sarma, Son of Sri PC Sarma, Resident of Jatia Path, Guwahati, District- Kamrup, Assam.
28.Shri Gautam Gogoi, Son of Sri Moniram Gogoi, Resident of Dimowguri, Nagaon, District- Nagaon, Assam.
… PETITIONERS -Vs.-
1. The State of Assam represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati.
2. The Commissioner & Secretary to the Government of Assam, Secretariat Administration Department, Dispur, Guwahati.
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3. The Commissioner & Secretary to the Government of Assam, Personnel, GAD, SAD Department, Dispur, Guwahati.
..…..RESPONDENTS
WP(C) No.5645/2010
1.Sri Mukut Ranjan Sarma, Son of Sri Homeswar Sarma, Resident of Village- Nonoi, Muragaon, District-Nagaon, Assam.
2.Sri Kamaludddin Ahmed, Son of Late Abu Bakkar Siddik, Resident of Village & P.O.-Rupahi, Police Station-Rupahi, District- Nagaon, Assam.
3.Sri Alokesh Bora, Son of Late Padma Kanta Bora, Resident ofVillage & PO-Katonigaon, District- Nagaon, Assam.
4.Sri Rajib Bora, Care of Sri Jiten Kalita, Resident of Village- Paschim Jolah, Police Station- Nagaon Sadar, District- Nagaon, Assam.
5.Md. Farizul Haque, Son of Late Kamaluddin Ahmed, Resident of Parul Baruah Path, Near Railway Station, Police Station-Nagaon Sadar, District- Nagaon, Assam.
6.Sri Naba Borkotoky, Son of Late Hem Chandra Borkotoky, Resident of Industry Road, PO-Gopal Bazar, Police Station-Nalbari, District- Nalbari, Assam.
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7.Sri Ratul Mahanta, Son of Sri Dharani Dhar Mahanta, Resident of Village- Bardadhi, P.O.-Gerua, Police Station-Hajo, District- Kamrup, Assam.
8.Sri Budheswar Saikia, Son of Late Ananda Chandra Saikia, Resident of Village-UIuoni, PO-Rupahi, District-Nagaon, Assam.
9.Sri Nabajyoti Sarmah, Son of Sri Debendra Nath Sarmah, South Hazarpur Railway Gate, Opposite Employment Exchange, PO-Tezpur, District- Sonitpur, Assam.
10.Sri Dipak Sarma, Son of Sri Khagendra Nath Sarma, Resident of House No.2, Bye-Lane No.M7, Near Post Office, Rupnagar, Guwahati, PIN-781032, District- Kamrup (Metro) Assam.
11.Sri Anil Sarma, Care of Sri Akhil Sarma, O/o The Principal, Gauhati Medical College, Narakasur Hill Top, PO-Indrapur, Guwahati, Pin-781032, District- Kamrup (Metro), Assam.
12.Sri Rajib Choudhury, Son of Sri Deben Das, Resident of East Jyotinagar, PS-Noonmati, Guwahati, PIN-781020, District- Kamrup (Metro), Assam.
-Vs.-
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1. The State of Assam represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati-781006, District-Kamrup (M), Assam.
2. The Commissioner & Secretary to the Government of Assam, Secretariat Administration Department, Dispur, Guwahati-781006, District-Kamrup (M), Assam.
3. The Commissioner & Secretary to the Government of Assam, Personnel Department, Dispur, Guwahati-781006. District-Kamrup (M), Assam.
..…..RESPONDENTS
B E F O R E HON’BLE MRS JUSTICE ANIMA HAZARIKA
In WP(C) No.2184/2010
Advocates for the petitioners : Mr. PK Goswami, Senior Advocate Mr. M Bhuyan, Mr. S Sarma, Mr. P Hazarika.
Advocates for the respondents : Mr. RK Bora, Addl. Senior Govt. Advocate, Assam
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In WP(C) No.5645/2010
Advocates for the petitioners : Mr. M Choudhury, Mr. A Gogoi.
Advocates for the respondents : Mr. RK Bora, Addl. Senior Govt. Advocate, Assam
Date of hearing : O2.05.2012 & 01.06.2012
Date of delivery of judgment : 01.06.2012.
JUDGMENT AND ORDER (ORAL)
Both these writ petitions are proposed to be disposed of by this common judgment and order as they involve similar question of facts and law.
2. In both the writ petitions, the order dated 9.3.2010 whereby and whereunder the petitioners‟ services were terminated by the
Commissioner and Secretary to the Government of Assam in the
Secretariat Administration Department have been impugned.
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3. Heard Mr. PK Goswami, learned Senior counsel assisted by
Mr. M Bhuyan, Advocate, in WP(C) No.2184/2010 filed by 28 petitioners and Mr. M Choudhury, learned counsel in WP(C)
No.5645/2010 filed by 12 petitioners. Also heard Mr. RK Bora, learned Additional Senior Govt. Advocate for the State respondents and perused 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 appointed in the posts of Lower Division
Assistants (LDA for short) in the Assam Secretariat under the
Secretariat Administration Department, Govt. of Assam on
Ad hoc 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
Commissioner & Secretary to the Government of Assam,
Secretariat Administration: Estt. Department. The
petitioners were appointed temporarily as LDA against ckear
vacancies under Secretariat Administration Department on
Ad hoc basis. In the appointment orders it was clearly
mentioned that the same were issued with due clearance of
SLEC, i.e. State Level Empowered Committee. However,
these appointment orders stood cancelled after the writ 10
petitioners have reported for joining in their posts vide
Orders contained in NO. S(E)70/2001/30 dated 19.05.2001
issued by the Chief Secretary to the Government of Assam on
the ground that:
(i). the appointments were made in gross
violation of the provisions of Assam Secretariat
Subordinate Service Rules, 1963 („Rules‟ for short),
inasmuch as, under the said Rules the Chief Secretary
is the appointing authority of the Lower Division
Assistants while the appointments orders in question
were made by the Commissioner & 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 writ 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 Single 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 this Court allowed the said appeals vide 11
judgment and order dated 16.09.2002, setting aside the judgment and order dated 28.09.2001 passed in the writ petitions as well as the impugned order of cancellation dated 19.05.2001 with a direction to the State respondents to take back the writ appellants/writ petitioners in service within a period of 3 weeks from the date of receipt of certified copy of the Judgment and order passed in the writ appeals by issuing necessary orders, without, 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 appointments having involved civil consequences depriving the legitimate rights of the appointees, the termination of services without giving prior notice and opportunity 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, the 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 challenged by the State Authorities before the Hon‟ble
Supreme Court vide Civil Appeal Nos. 8305-09 of 2003, the said 12
appeals were disposed of by the Apex Court vide judgment & order dated 19.11.2009 holding as thus;
“……..The High Court in the impugned order has held
that before canceling the appointments the respondents
should have been given an opportunity of hearing. We agree
with this observation of the High Court. Hence, we see no
reason to interfere with the impugned judgment and order
of the High Court. It is open for the State Government to
now give an opportunity of hearing to the respondents and
thereafter pass appropriate orders. We direct that the State
Government shall pass such orders latest by 31st January,
2010 after giving opportunity of hearing to the respondents.
If no orders are passed by the State Government by the said
date, respondents will be reinstated forthwith.”
7. The said time limit of 31.01.2010 was extended upto
15.03.2010 by a subsequent order of the Apex Court dated
29.01.2010. Thereafter, in terms of the aforesaid observation of the Hon‟ble Apex Court, fresh notices were issued on the writ
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 :
“….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 Assam –Vs- 13
Khargeswar Bora and others) regarding appointment of
Lower Division Assistant 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 respondents 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 Bhagawan Ch. Deka, 3. Shri Amal
Ch. Das, S/o Sri Lohit Ch. Das, 4. Sri Utpal Tamuly, 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- Sri 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 Saikia, 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. Sri Ajit Nath, S/o- Biren Kr. Nath, 15. Sri Mukut Ranjan
Sarma, S/o- Homeswar Sarma, 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. Sri Jiten Bora, S/o- Late Ganashyam
Bora, 20. Sri Ranjit Borah, S/o- Giri Kanta Bora, 21. Sri 14
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 Mrinmoy Kr. Bora, S/o- Sri
Sachi Kanta Bora, 25. Sri Dharmeswar Hazarika, S/o- Sri
Dambaru 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. Farizul 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 Assam Secretariat Subject to discharge without notice and without assigning any reason 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 Secretariat Subordinate Services
Rules 1963 and without following proper procedures and norms.
(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 Appointment Orders. 15
(3) As per Rule 11 A of the said Rules, due clearance for the Selection Committee constituted by the Appointing
Authority has to be obtained, which was not adhered 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 backed 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 Cabinet was not routed through the Chief Secretary, but was placed to the Cabinet by the Commissioner & Secretary to the Government of
Assam, Personnel Department.
(7) Relaxation of the Rules made for appointment was illegal.
Therefore, you are required to show cause as to why the said appointment order will not be cancelled. You are hereby requested to submit written representation in support of your claim, if any and also appear personally before the Commissioner & Secretary, Secretariat
Administration Department and attend hearing on 28-01-
2010 at 11 am in the Conference Hall of General 16
Administration Department in the 2nd Floor of „A‟ Bloc,
Assam Secretariat, Dispur, Guwahati.”
8. The Writ Petitioners responded to the aforesaid notices by way of representations 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 amounted to overreaching the judgments in question, as the same had already been rejected and such rejection has also attained finality. In support, reliance was placed 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 the 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 these 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 impugned order, the State Authorities stuck to its earlier decision of canceling the appointment orders 17
holding the same “ab initio void and illegal” on the plea that the same “were made exercising the power of relaxation of conditions of recruitment arbitrarily in the garb of the said policy decision.”
The findings of facts 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 the 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 time the Chief Secretary to the Government of Assam was the appointing authority for the posts in question under the Rules, the appointment orders were issued without consulting the Chief Secretary and his approval was not taken. The cancellation 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 is construed to be confined to allowing vacant posts to be filled up without any further reference to appointment of specific persons while the actual appointments are to be made by the corresponding authorities as per the existing rules. Thus, 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 routed through the 18
Chief Secretary making a departure from the rules and norms in this regard. However, the authenticity, veracity and legality of the approval given by the State Cabinet in its meeting of 16.04.2001 vide Cabinet Memorandum dated 12.04.2001 are not challenged.
The point regarding approval of the State Level Empowered
Committee is answered in the order dated 9.03.2010 to the effect that the role of the said committee is limited to clearing the vacant posts to be filled 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 manner by the appointing authority, thereby trying to make a distinction that the clearance of the State Level Empowered Committee and the approval of recruitment and selection are two distinct matters and can not be substituted for each other.
10. The order dated 9.03.2010 has been challenged by the writ petitioners mainly on the following grounds :
(I) That the State Authorities had tried to misdirect and
misinform this Court at various stages regarding the
status of approval of State Level Empowered
Committee. While the appointment orders clearly
state that the appointments were cleared by the State
Level Empowered Committee, in earlier series of writ
petitions it was a categorical stand of the respondent 19
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, inasmuch as, the order dated
09.03.2010 categorically admits of approval of the
State Level Empowered Committee in respect of
appointment made in the 67 posts of Lower Division
Assistants and also the fact the Chief Secretary was in
fact the Chairman of the said State Level Empowered
Committee.
(II) The second ground of challenge is that the impugned
order dated 9.03.2010 is self contradictory in respect
of the role of the Chief Secretary inasmuch as 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
Secretary being its Chairman) to the stage of Cabinet
Approval (Chief Secretary being 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 20
appointment orders were not issued by him contrary to
the Rules cannot be sustained.
(III) The third ground of challenge is that the Commissioner
& Secretary to the Government of Assam Secretariat
and Administration Department who passed the
impugned order dated 9.03.2010 is not competent to
review the State Policy approved by the State Cabinet
in terms of which the appointment orders in question
were made.
11. The plea of the Government regarding the appointment orders being contrary 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 Chief 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 signatures. Examples have been cited as regards appointment orders of various persons under similar posts in the Assam Secretariat made under the seal and signature of Deputy Secretary/ Under Secretary to the Personnel
Department. It is further contended that relaxation of rules made, if any, in the instant case is permissible within the framework of the said rules itself and the same having been made in respect of a 21
class of a person under exceptional circumstances to give effect 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 Petitioners, it is also important to note some facts as appearing in the pleadings. Admittedly 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 extended help and co-operation to the Government to abate militancy. The conspicuous 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 orders i.e. 19.05.2001 is also not explained by the State authorities. However, the argument of the writ petitioners pointing out malice and extraneous considerations playing behind the issuance of the termination orders notwithstanding, the termination orders dated 19.05.2010 and the order dated
9.03.2011 confirming those termination orders have to be tested on the touchstone of constitutional parameters.
13. Nothing has been brought in complete terms by the State respondents to establish that the writ petitioners do not possess 22
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 criteria laid down under the relevant Rules. The next question is whether they could have been appointed in the manner as has been done in the instant case and whether the appointments are de-horse the
Rules and accordingly void ab initio. The State 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 under the Rules itself and the said relaxation is made in terms of the public policy approved by the State Cabinet which is the highest collective decision making authority in the
State. The relaxation has been made for a class of persons on definite qualifying terms within legally known permissible parameters. The basic qualifications stipulated under the rules for an appointee has not been relaxed. It is only in the realm of the source and the process of recruitment that a departure has been made to give effect to the Cabinet approved public policy which 23
remains on record and has not been reviewed or changed. In view of the same, it is not for the Commissioner & Secretary to the
Government in its Secretariat Administration Department to pass the impugned order dated 09.03.2010 revalidating 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 Officer 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 Chief Secretary; fact remains that the Chief Secretary being the Ex Officio
Secretary 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 stage 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 Committee which cleared the recruitment process in the post in which the writ petitioners were appointed.
The objection regarding the violation of the rules on this count stating that neither the Chief Secretary approved of the appointment orders nor had issued the same is of no avail inasmuch as the appointment orders were issued after the State
Level Empowered Committee headed by him had approved of the same and the State Cabinet which formulated the policy under 24
which the writ petitioners were appointed acted on the basis of the Cabinet Memorandum while the 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 appointment orders had acted on his own individual discretion without the valid sanction of the higher authorities. The Chief
Secretary under the aforesaid circumstances cannot plead either his ignorance or disapproval in the process of issuance of the appointment orders. The allegation of the change of stand being actuated by change of political power running the State
Government in the intervening period 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 not been struck down by any subsequent
State Cabinet, it is not for the Commissioner & 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 Secretary 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 25
same being not issued by the Chief Secretary is also too fragile to sustain judicial scrutiny on grounds and the circumstances discussed hereinabove.
14. The leave graciously granted by the Apex Court to the State to pass appropriate 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 on grounds based on acceptable parameters of law. The right of hearing and affording 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 capacity 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 same 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 State respondents on affidavit had pleaded total nonexistence of the
State Level Empowered Committee‟s approval in respect of the same very set of appointments while in the order dated 9.03.2010 for the first time the authorities admit the existence of State Level 26
Empowered Committee‟s approval, albeit trying to infuse new explanation to the same to suit their end. It is true that the executives have to be sentinels of preserving the rule of law in the
State. But the paramouncy 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 inevitable conclusion that the appointment of the petitioners made vide orders dated 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 quashed. 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 obtaining leave of this Court either by direct recruitment or selection or promotion. Similar order has been passed on 8.10.2010 in WP(C) No.5645/2010 also. It has further been submitted at the Bar that the interim orders so passed by this
Court are continuing till date.
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16. In view of the same, the Government is directed to reinstate the petitioners 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. In the facts and circumstances of the case, there shall be no order as to costs.
JUDGE
Mdb/gunajit