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2003 DIGILAW 108 (GAU)

Prasanta Kr. Modoi v. State of Assam

2003-03-11

I.A.ANSARI

body2003
JUDGMENT I.A. Ansari, J. 1. By making this application under Article 226 of the Constitution of India, the Petitioners, who described themselves as next of kin of persons, who had sacrificed their lives or who had been rendered physically disabled permanently, while participating in the Assam movement on the problem of foreigners, have approached this Court seeking issuance of appropriate Writs setting aside and quashing the order, dated 1.10.02 (Annexure-7 to the writ petition) and order, dated 4.10.02 (Annexure-8 of the writ petition) issued by the Respondent No. 4, namely, Director of Higher Secondary Education, Assam, whereby the appointments of the Petitioners as teaching and non-teaching staff of schools have been kept in abeyance. 2. In a narrow campus, the case of the Petitioners may be put as follows: The Government of Assam decided to make appointment, in public service under the Government of Assam, of the next of kins of those who had scarified their lives as well of those, who had been victims of the Assam Movement, on the problem of foreigners, by relaxing the provisions of the relevant Recruitment Rules of the services concerned in terms of the provisions of the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as the said Rules of 1999). In accordance with the decision taken by the Government on 6.7.2002, appointments were to be made in the departments of Flood Control, Public Works, Irrigation, Public Health Engineering, Social Welfare, Panchayat and Rural Development, Health and Family Welfare, Home Education and Excise. As per this decision, the Secretary to the Govt. of Assam, Personnel (B) Department, vide his letter, dated 11.7.2000, informed the departments concerned about the said decision of the Government with a request to make appointments in terms of the said decision within a period of 15 days from the date of receipt of the list of candidates to be furnished by the implementation of the Assam Accord Department (popularly known as "I.A.A, Department") and clarified to the departments concerned that the clearance of the State Level Empowered Committee for recruitment against the posts aforementioned had also been accorded. It was further conveyed vide the letter, dated 11.7.2000, aforementioned that the "affected candidates" shall be appointed against the vacancies shown by the concerned administrative department in the letter under reference. It was further conveyed vide the letter, dated 11.7.2000, aforementioned that the "affected candidates" shall be appointed against the vacancies shown by the concerned administrative department in the letter under reference. The Petitioners fall within the ambit of the definition of the "affected candidates" and they were duly issued certificates by the Deputy Commissioners concerned certifying the same. All the Petitioners, except Petitioner No. 4, are graduates and, therefore, entitled to be appointed as Assistant Teachers of Secondary Schools. The Petitioner No. 4 has passed H.S.S.L.C. examination and he is entitled to be appointed as LDA-cum-typist/Section Assistant inasmuch as he has passed proficiency test in typing. After necessary verification, the I.A.A. Department prepared a list of 29 candidates including the Petitioners for appointment. After necessary verification, 18 candidates including the Petitioners, except Petitioner No. 4, were appointed as school teachers and the Petitioner No. 4 was appointed as L.D.A-cum-typist by Respondent No. 4 aforementioned vide order, dated 24.2.2002. By their orders of appointment, the Petitioners were directed to join the, respective posts within 15 days from the date of receipt of the order. The Petitioner Nos. 3, 5, 6, 7, 8 and 9 have already joined their respective posts, but the Petitioner Nos. 1, 2 and 4 have not been allowed to join their respective posts by the concerned Headmasters on the ground that by the impugned order, dated 1.10.2002 and 4.10.2002 aforementioned, the appointments were asked to be kept in abeyance. For the direction so given, no reason has been assigned by the Respondent concerned. While persons, similarly appointed, have already been receiving salaries and allowances regularly, even those Petitioners, who have already joined their respective posts, are not being paid their salaries and allowances. Thus, the act of keeping the appointment in abeyance is wholly arbitrary and without jurisdiction. While the appointments of the Petitioners in the Education Department have been kept in abeyance, persons, similarly appointed, in other departments of the Government, have been allowed to work and draw their salaries and allowances regularly. The impugned directions to keep the appointments of the Petitioners in abeyance amounts to termination of their services, which the Respondents are not entitled to do without following the due process of law. 3. The impugned directions to keep the appointments of the Petitioners in abeyance amounts to termination of their services, which the Respondents are not entitled to do without following the due process of law. 3. The Respondent No. 4 has contested this case by filing his affidavit, his case being, in brief, thus: Some verbal/oral complaints were received by Respondent No. 4 that some candidates were not members of the martyr families and in the case of some other candidates, complaints were received that the members of their family had already been provided with Government jobs. Hence, in order to ascertain the actual state of affairs, the appointments of the candidates concerned have been kept in abeyance with the help of the order, dated 1.10.2002 and 4.10.2002, aforementioned. The order, so passed, is not illegal, arbitrary and/or bad in law. 4. I have heard Mr. A.S. Choudhury, learned Senior counsel for Petitioners and Mr. M. Bhagawati, learned Govt. Advocate appearing on behalf of Respondents. 5. Upon perusal of the materials on record and upon hearing the learned Counsel for the parties, what attracts my eyes, most prominently, is that this case has not been contested by any of the Respondents except Respondent No. 4. It has not been contended by the Respondents that the appointments of the Petitioners as member of the teaching and non-teaching staff are bad in law. Far from this, the materials on record reveal that the Petitioners were appointed in terms of the conscious decision taken by the Government and that the appointments of the persons concerned have received the clearance of the State Level Empowered Committee. It is also not in dispute that the names of the Petitioners were forwarded by the I.A.A. Department for appointment in terms of the said Rules of 1999. 6. It is worth noticing that the Assam Public Services (Preferential Appointment) Rules, 1999 (hereinafter referred to as "the Said Rules of 1999") have been framed by the Government to give preferential treatment for appointment in public services, under the State of Assam to the next of kin of persons, who had sacrificed their lives or who have been rendered physically disabled permanently, while participating in the Assam Movement on the problem of foreigners. 7. 7. It is also not in dispute before me that the said Rule of 1999 applies to the persons, who fall within the ambit of the definition of "affected candidates" as contained in Rule 2(a) of the Rules of 1999. According to this definition, "affected candidates" means a candidate, who is a member of the family of a martyr or a member of a family of a person, who has been rendered physically disabled and possess a certificate to that effect issued by the Deputy Commissioner of the respective District in such form as specified in the Schedule to these Rules. 8. There is no dispute before me that the Deputy Commissioners of the respective districts have issued necessary certificates describing the Petitioners as "affected candidates". There is also no dispute that it is after verification that the I.A.A. Department forwarded the names of the Petitioners for appointment as "affected candidates". It is also not in contended before me boldly, as indicated hereinabove, that the appointments of the Petitioners as members of the teaching and non-teaching staff of various schools is illegal. 9. Having once appointed the Petitioners on the ground that they were "affected candidates" and after having issued the necessary appointment letters/orders, the Respondent No. 4 aforementioned could not have, on the basis of mere oral/verbal complaints, kept the appointments in abeyance. 10. It has been correctly pointed out by Mr. Choudhury that according to definition of the "affected candidates" contained in Rule 2(a) of the said Rules of 1999, necessary certificates to the effect that the person concerned is an "affected candidate" is to be given by the Deputy Commissioners of the District concerned and once such a certificate has been issued, the candidate concerned has to be treated as the "affected candidate" until the time the certificate is either cancelled, withdrawn or set aside. 11. In the case at hand, it is clear that as long as the Petitioners possess the necessary certificates issued under the provisions of the said Rules of 1999, as they presently do, showing that they are affected candidates, their appointments cannot be cancelled. 11. In the case at hand, it is clear that as long as the Petitioners possess the necessary certificates issued under the provisions of the said Rules of 1999, as they presently do, showing that they are affected candidates, their appointments cannot be cancelled. However, if the Respondent No. 4 has received any complaints, the enquiry has to be made by him and the State Respondents will remain at liberty to take, in accordance with law, such steps as may be necessary, for termination of the services of the Petitioners, if the enquiry reveals that the Petitioners concerned are not entitled to be appointed under the said Rules of 1999, but as long as the appointment orders of the Petitioners stand, they cannot be restrained from joining their respective posts in the name of conducting any enquiry. 12. However, this Court has no reason disbelieve the Respondent No. 4 that he has received complaints, which he claims to have been received by him. On receiving such complaints, if the Respondent No. 4 wants to make any enquiry or wants the authority/authorities concerned to conduct any enquiry, such act/acts on the part of the Respondent No. 4 cannot be said to be unjust, illegal or without jurisdiction, for, when the Respondent No. 4 has received such complaint, he cannot be expected to put the same under the carpet or inside the cupboard and it is his duty to satisfy himself that the Petitioners are, indeed, affected candidates within the meaning of the said Rules of 1999. With this end in view, whatever enquiry the Respondent No. 4 wants to make or needs to make shall be allowed to be conducted freely. However, merely because of the reason that such a complaint has been made, as claimed by Respondent No. 4, the appointments of the Petitioners cannot be kept in abeyance. 13. Considering, therefore, the matter in its entirety, I am firmly of the view that the impugned order, dated 1.10.2002 and 4.10.2002 aforementioned cannot be allowed to stand good on the record and the same are accordingly set aside and quashed. 13. Considering, therefore, the matter in its entirety, I am firmly of the view that the impugned order, dated 1.10.2002 and 4.10.2002 aforementioned cannot be allowed to stand good on the record and the same are accordingly set aside and quashed. However, the Respondents are left at liberty to conduct any such enquiry as is permissible under the law to ascertain if all or any of the Petitioners are not eligible for such appointment, as have been made, under the provisions of the said Rules of 1999 or any other Rules contained in that behalf and if it is found that any of the Petitioners was not-entitled to receive the appointment, his/her appointment may be cancelled in accordance with law. It is further directed that the Petitioners shall co-operate with the Respondents in conducting any such enquiry that may be held to ascertain their eligibility to receive the appointment, in question. 14. The Petitioners shall be paid their due salaries and allowances with effect from their respective dates of joining their posts. Any payment so made, shall be refundable to the Government if the enquiry, which may be held/conducted, as indicated above, reveals that the Petitioner concerned was not entitled to such appointment.