Purna Chandra Bora v. Commissioner, Assam State Housing Board & Ors.
1990-03-02
S.K.HOMCHAUDHURI, W.A.SHISHAK
body1990
DigiLaw.ai
S.K. Homchaudhuri, J.:- In this writ petition the petitioner has impugned the order dated 17.11.89 passed by the respondent No. 1 purporting to release the petitioner from service with immediate effect. The petitioner is a graduate in Arts and has acquired requisite qualification in typing. The petitioner was appointed in the office of the respondent No. 1, the Commissioner, Assam State Housing Board, Hengrabari, Guwahati by order No. SHB (G) 149/83/Pt/116 dated 27.3.89 in the post of Accounts Assistant against one of the vacant post and he joined the post on 28.3.89. The office order appointing the petitioner is as follows. "In the interest of the Board's service, Shri Purna Ch. Bora son of Lt. Thulaswar Kalita of Dhing (Nagaon) is temporarily appointed as Accounts Asstt. in the scale of pay Rs.500-12-560 EB-15-636-EB-20-875/-p. m. plus all other allowances as admissible time to time with effect from the date of his joining till appointment of Accounts Asstt. is made on regular basis." It is the case of the petitioner that after the appointment, he has been discharging duties and responsibilities honestly and diligently in the post of Accounts Assistant to the satisfaction of his superior. In the affidavit in-opposition, filed by the respondents No.1 and 3, however, this fact is not admitted and the statement of the respondents has been sworn as based on information derived from records. But the records filed in this Court does not indicate that the service so far rendered by the petitioner has not been satisfactory. 2. However, while the petitioner was working in the post of Accounts Assistant, by the impugned office order No. SHB/G/Esstt/60/87/30 dated 17. 11.89 (Annexure-8) the petitioner was released from service with immediate effect. The impugned order passed on 17.II. 89 is as follows :- " Shri Prafulla Tamuly and Shri Purna Ch Bora is allowed to officiate as Acctt. Asstt. vide this Office order No. SHB (G) Estt /7/85 dt. 1.11.88 and Order No. SHB (G)l49/83/pt/116 dt 27.3.89 respectively are hereby released from servile with immediate effect." The petitioner has impugned the said order in this instant writ petition. This Court while issuing Rule on 21.11.89 passed an ad interim order suspending the office order dated 17.11.89 and in view of the ad interim order, the petitioner is still continuing in his service. 3.
This Court while issuing Rule on 21.11.89 passed an ad interim order suspending the office order dated 17.11.89 and in view of the ad interim order, the petitioner is still continuing in his service. 3. The petitioner's case is that it is clear from the appointment order dated 27.3.89 (Annexure-A) that he was appointed temporarily to the post of Accounts Assistant in the establishment of the respondent No.1 with effect from the date of his joining till appointment of Accounts Assistant was made on regular basis. Petitioner was appointed against one of the vacant posts of Accounts Assistant in the establishment of the respondent and he was not merely allowed to officiate as Accounts Asstt. by the order dtd. 27.3.89. As such, the impugned order purporting to release him from service is arbitrary, illegal and void and liable to be set aside. 4. The respondents in their affidavit-in-opposition have contended that the petitioner's service has been terminated after candidates to the post of Accounts Asstt. were selected on merit for filling up the vacant post on regular basis. Petitioner was appointed temporarily and his condition of appointment was that he would be allowed to continue till appointment to the post is made on regular basis. The Director of Employment and Craftsman Training, Assam was requested to sponsor the names of eligible candidates for filling up such vacant posts. The process of filling up the posts on regular basis by holding selection tests/interview was a time consuming process. As such, for the interest of service of the Board, temporary appointments were made till regular appointment could be made. Although the petitioner was not sponsored by the Employment Exchange, in view of the fact that the petitioner was working in the Board temporarily he was also given opportunity by the Board with three others similarly appointed temporarily, to appear before the interview for the post of Accounts Assistant along with 31 candidates sponsored by the Employment Exchange. Interview was held on 25.8.89 in the office of the respondent No. 1 by a Selection Committee. The Selection Committee Selected 9 candidates on merit from three categories, namely, three from Schedule Caste, three from Schedule Tribes (Plains) and three from General category. The petitioner's case was duly considered by the selection committee but he could not be selected because the Selection Committee found better candidate available on merit.
The Selection Committee Selected 9 candidates on merit from three categories, namely, three from Schedule Caste, three from Schedule Tribes (Plains) and three from General category. The petitioner's case was duly considered by the selection committee but he could not be selected because the Selection Committee found better candidate available on merit. On the basis of the recommendation of the Selection Committee, the respondent No.1 by office order dated 17.11.89 appointed the selected candidates against the vacant posts. Petitioner not being selected, he was not eligible for appointment on regular bath and his service came to be terminated. In their affidavit-in-opposition the respondents have annexed a copy of the order dated 17.11.89 purporting to appoint five incumbents in the vacant posts of Accounts Assistants as Annexure-4. 5. Mr. A. M. Majumdar, learned counsel for the petitioner has submitted that the impugned order does not indicate at all that the petitioner's service was terminated because of appointment to the posts of Accounts Assistant on regular basis in the establishment of the respondent No.1. The impugned order clearly indicates that the petitioner was merely allowed to officiate in the post of Accounts Assistant by order dated 27.3.89 and was released from service with immediate effect, although it is apparent that the petitioner was appointed against a vacant post of Accounts Assistant temporarily with effect from his date of joining till appointment of Accounts Asstt. made on regular basis. Mr. Majumdar, has also submitted that the records do not indicate that there was any selection for appointment of Accounts Asstt. by the respondent No.1 on regular basis and the 'so-called' selection is not a selection at all, in as much as, the loose sheets in support of selection of candidates as submitted by the respondents, do not indicate any selection. As such the impugned order is arbitrary, illegal and void and is liable to be set aside. 6. Mr. N. M. Lahiri, learned counsel for the respondents has submitted that the Selection Committee on the basis of the interview gave their marks against each candidates and that there was regular selection and that selection could not be challenged in the writ petition.
6. Mr. N. M. Lahiri, learned counsel for the respondents has submitted that the Selection Committee on the basis of the interview gave their marks against each candidates and that there was regular selection and that selection could not be challenged in the writ petition. Although, the language of the impugned order do not indicate specifically that the petitioner's service was terminated because of filling up of vacant post on regular basis, however, in fact as per terms of his appointment letter, the petitioner's service has been terminated consequent of filling up of the post on regular basis. The petitioner was given chance for regular appointment, but he could not qualify himself in the interview. 7. We have considered the submissions made on behalf of the petitioner as well 01 behalf of the respondents. We have also perused the records submitted by the respondents. On going through the records, be find in the order sheet that by the order dated 5. 5. 89, the chairman of the Board laid down that the basis of selection was to be written test of the candidates followed by interview, by the Selection Committee. However, the call letters asking the petitioner and others to appear before the Selection Committee (Americus 1 and 2 to the affidavit-in-opposition) clearly indicate that the candidates were asked to appear before the Selection Committee only for interview and not for written test. There is nothing on record to show that the interview of the candidates was preceded by written test. It is stated in the affidavit in opposition that because of filling up of post on regular basis by appointing selected candidates, the petitioner's service was terminated, However, we do not find anything in the order sheet which indicates that the petitioner's service was to be terminated because of appointment to the vacantly posts on regular basis. It appears from the aforesaid office order dt. 17.11.89 purporting to appoint five persons to the post of Accounts Assistants annexed as Annexure-4 to the affidavit-in-opposition that these five persons were appointed temporarily subject to discharge, without notice or without showing any reason thereof.
It appears from the aforesaid office order dt. 17.11.89 purporting to appoint five persons to the post of Accounts Assistants annexed as Annexure-4 to the affidavit-in-opposition that these five persons were appointed temporarily subject to discharge, without notice or without showing any reason thereof. Even the order sheet do not indicate the names of the persons selected by the Selection Committee a id approval of the selection, in the absence of any order in the order sheet indicating the reasons and grounds for passing the impugned order, the validity of the impugned order is to be judged by the reasons mentioned or indicated in the order itself. Fresh reasons can not be supplemented by affidavit-in-opposition. This is the settled position of law as laid down by the Apex 0ourt in the case of Mahendra Singh Gill v. Chief Election Commissioner ( AIR 1978 SC 851 ). As such, in the absence of any order in the order sheet in support thereof, the contention of the respondents that the petitioner's service came to be terminated as per terms of his appointment, namely, filling up of vacant posts of Accounts Assistant on regular basis, cannot be allowed to supplement the reasons appearing in the impugned order. The impugned order indicates that the petitioner was allowed to officiate in the post of Accounts Assistant by order dated 27. 3. 89 and the was released from service with immediate effect. From the order dated' 27-3.89 it is clear that the petitioner was not merely allowed to officiate in the post of Accounts Assistant but in the interest of Board's service, he was appointed temporarily in the vacant post of Accounts Assistant with effect from the date of his joining till appointment to the post made on regular basis. The impugned order purport to release the petitioner from the post of Accounts Assistant on a different ground which is inconsistent with the terms and conditions of his appointment order dated 27.3. 89. From the aforesaid reasons, we are constrained to hold that the impugned order, so far as it purports to terminate the service of the petitioner, is illegal and cannot be sustained. In the result, the petition is allowed. The impugned order so far as it purports to terminate service of the petitioner, is set aside. We make no order as to costs.