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2007 DIGILAW 23 (GAU)

Dewan Ram Boro v. State of Assam

2007-01-09

AMITAVA ROY

body2007
JUDGMENT Amitava Roy, J. 1. The petitioner assails the notification dated 22.11.2006, whereby the respondent No. 3, according to him have been illegally and arbitrarily allowed to hold the charge of the post of Director of Elementary Education, Assam. This Court issued notice on 6.12.2006, directing service of notice on the said respondent by registered post. The petitioner, was also granted the liberty to serve the notice personally on respondent No. 3. By an affidavit filed on 15.12.2006, the petitioner has affirmed on oath that a copy of the writ petition had been served on the said respondent. Annexure-A to the affidavit bears out the said assertion. The respondent No. 3, however, has not entered appearance. In view of the urgency expressed at the Bar, the petition has been taken up for final disposal at the admission stage. 2. I have heard Mr. N. Dutta, Senior Advocate assisted by Mr. K. Goswami, Advocate for the petitioner and Mr. M.K. Choudhury, Senior Standing Counsel, Education Department for the official respondents. 3. The contesting parties having exchanged their pleadings, it is essential to take stock of the rival pleas. The petitioner's version is that, his initial appointment to the post of Deputy Director of Elementary Education Assam on 2.11.1985, under Regulations 3(f) of the A.P.S.C. (Limitation and Function) Regulation, 1951 (hereinafter also referred to as the Regulation), after being regularized on 13.7.1988, he was promoted as Joint Director of Higher Education of Assam on 6.2.1996 under Regulation 4(d). His service as such too was regularized on 4.9.1998. Subsequent thereto, he was promoted as Addl. Director of Education (Secondary) Department of Assam on 29.3.2005. Compared thereto, the respondent No. 3, was appointed as the Deputy Director of Education, Assam on 13.7.1988 and thereafter was promoted as joint Director and Addl. Director of Education on 31.3.2000 and 22.6.2006 respectively, signifying thereby, that he had been junior to the petitioner throughout his service career. 4. After being promoted to the post of Addl. Director of Higher Education on 29.3.2005, under Regulation 4(d), the petitioner's services were placed at the disposal of N.C. Hills Autonomous Council, Haflong and he was posted as Addl. Director of Education (Hills) Haflong. 4. After being promoted to the post of Addl. Director of Higher Education on 29.3.2005, under Regulation 4(d), the petitioner's services were placed at the disposal of N.C. Hills Autonomous Council, Haflong and he was posted as Addl. Director of Education (Hills) Haflong. While as such, he was posted as Secretary, Assam Higher Secondary Education Council, Bamunimaidan (hereinafter also referred to as the Council) on deputation, on 29.9.2005 vice Shri Mohsin Ali, Director of Secondary Education Council, Assam being relieved of the said office. On 22.6.2006, the petitioner's service in the post of Addl. Director of Education, Assam was regularized. On 19.8.2006, the provisional gradation list of the Officers in the Cadre of Additional Director of Education was published. The petitioner was placed at Sl. No. 2, whereas the respondent No. 3's name appeared at Sl. No. 4 therein, Shri B.K. Das, whose name appeared at Sl. No. 1 in the said list, while holding the post of Non-formal & Adult Education, Assam in the rank of Addl. Director, had been allowed to hold the charge of the post of Director of Elementary Education, Assam on 23.9.2005 in terms of seniority. However, following his arrest in connection with a criminal case, he was placed under suspension on 20.11.2006. While, the petitioner being the next Senior Addl. Director, was waiting in expectation to be allowed the charge of the post of Director of Elementary Education, Assam as per the practice hitherto adhered to, by the impugned notification, the respondent No. 3, was permitted to hold the charge of the said office in addition to his own duties as Addl. Director. Incidentally, on 30.11.2006, the final gradation list of the Officer in the cadre of Addl. Director Education was published maintaining the interse seniority reflected in the provisional gradation list. The petitioner admittedly, was senior to the respondent No. 3, but had been denied the charge of the Office of the Director of Elementary Education, Assam. This the petitioner, has alleged to be a yield of political interventions and extraneous considerations. 5. The official respondents in their counter, while dismissing the allegation of external interference and irrelevant considerations, have maintained that as the petitioner is serving as Secretary, Assam Higher Secondary Education Council on deputation, his withdrawal from the said post would adversely affect the preparatory process for the ensuing HSLC examination. 5. The official respondents in their counter, while dismissing the allegation of external interference and irrelevant considerations, have maintained that as the petitioner is serving as Secretary, Assam Higher Secondary Education Council on deputation, his withdrawal from the said post would adversely affect the preparatory process for the ensuing HSLC examination. The next Officer in seniority namely, Shri Bhuban Chandra Konwar is not willing to shoulder the responsibility of the Director of Elementary Education on health grounds. As the magnitude of the works and the public interest involved warranted immediate posting of an officer to hold the charge of the post of Director of Elementary Education, Assam, the respondent No. 3, was entrusted with the said responsibility on purely temporary basis in addition to his normal duties. The answering respondents, however, admitted that the respondent No. 3 was junior to the petitioner. They, however, sought to contend that the post of Director of Elementary Education being not a promotional post as per the provisions of the Assam Education Service Rules 1982 (hereinafter referred to as the Rules), officers in the cadre of Addl. Director cannot be considered for promotion thereunder. 6. In his reply, the petitioner has repudiated the justification advanced in support of the impugned decision citing the instance of Md. Mohsin Ali, who while being the Addl. Director in the said department and on deputation as Secretary, Assam Higher Secondary Education Council, had been allowed to hold the charge of the Director of SCERT, Assam and Director of Elementary Education, Assam consecutively. According to the petitioner, therefore, the reason cited for denying him the charge of the Office of the Director of Elementary Education, Assam is imaginary and only a pretence to favour the respondent No. 3. 7. Mr. Dutta, has argued that the arrangement occasioned by the impugned notification being an outcome of arbitrary exercise of power influenced by irrelevant considerations, the same is patently illegal. There being overwhelming materials on record to demonstrate that the petitioner had been recommended to hold the charge of the Office of the Director of Elementary Education, Assam in addition to that of the Secretary, Assam Higher Secondary Education Council, the impugned decision being the ipse dixit of the departmental Minister ought to be struck down as nonest in law. It being the persistent practice of permitting the incumbents in the post of the Addl. It being the persistent practice of permitting the incumbents in the post of the Addl. Director to hold the charge of the Office of the Director on the basis of seniority, in absence of any convincing and persuasive material on record proclaiming that the petitioner cannot be spared from the council in view of the impending HSLC Examination, the assailed action, is unsustainable. The learned Senior Counsel maintained that in any view of the matter, as no incumbent in Government service is indispensable, the ground projected in the affidavit in support of the decision, is illogical and absurd. The impugned decision being vitiated by political and inappropriate considerations, is liable to be interfered with. There being no existing material on record to suggest that Shri Bhuban Chandra Konwar had ever expressed his disinclination to hold the post of Director, Elementary Education, Assam on health grounds, he too had been superceded to accommodate the respondent No. 3, he contended. Mr. Dutta in support of his submissions placed reliance a decision of this Court in Satya Charan Biswas vs. State of Assam and other, (2005) 3 GLT 275. 8. Mr. Choudhury, per contra has submitted that, considering the post that the petitioner has been holding in the Council, it was considered inexpedient to shift him therefrom in the interest of the students bracing up to appear in the impending HSLC Examination in the State. While asserting that by the decision impeached, no vested right of the petitioner has been adversely affected, the learned Senior Standing counsel, referring to Rule 5(1) of the Rules, has urged that no interference, as prayed for, is warranted in the facts and circumstances of the case. 9. The competing arguments have been carefully evaluated. The interse seniority of the parties to the proceedings is not in dispute. Admittedly, the petitioner is senior to the respondent No. 3 in the grade of Addl. Director. It is not disputed by the official respondents that seniority has been a relevant consideration for identifying an eligible incumbent in the said grade for being offered the charge of the office of the Director. The instance of Mohsin Ali brought on records, has not been questioned by the respondents. Director. It is not disputed by the official respondents that seniority has been a relevant consideration for identifying an eligible incumbent in the said grade for being offered the charge of the office of the Director. The instance of Mohsin Ali brought on records, has not been questioned by the respondents. Rule 5 of the Rules prescribes the method of recruitment amongst others to the post of the Director, however, having regard to the nature of the arrangement sought to be made by the impugned notification, the said legal provision, in my considered view, has no determinative significance in the present fact situation. The conditions precedent for invocation of the proviso to Rule 5(1) also do not stand established. Further dilation on the Rules therefore, is not called for. 10. The official records produced in course of the arguments reveal that following the suspension of Shri B.K. Das, holding the charge of the post of Director of Elementary Education, Assam a note was put up before the departmental Minister on 22.11.2006, inter alia, suggesting that the petitioner be allowed to hold the charge of the Office of the Director of Elementary Education, Assam in addition to his own duties, if necessary by reverting him from the post of Secretary of Assam Higher Secondary Education Council. In the said note, the instance of dual charge of the office of the Director of Elementary Education and Secretary, Assam Higher Secondary Education Council held by Md. Mohsin Ali, was mentioned. An early decision was solicited in view of subsisting urgency. The departmental Minister, however, held the view that as the petitioner was holding the charge of the Office of Secretary, Assam Higher Secondary Education Council, a key organization and that as the Higher Secondary Examination was drawing near and there being no substitute to replace him with the said responsibility, he could not spared for the post of Director, Elementary Education, Assam. It was recorded further that Shri Bhuban Chandra Konwar, was not willing to change his present posting due to ailing health. The departmental Head therefore, decided to permit the respondent No. 3 to officiate as in-charge Director of Elementary Education. The impugned notification was thus issued. 11. It was recorded further that Shri Bhuban Chandra Konwar, was not willing to change his present posting due to ailing health. The departmental Head therefore, decided to permit the respondent No. 3 to officiate as in-charge Director of Elementary Education. The impugned notification was thus issued. 11. While it is logical that seniority in a feeder post to, is a formidable factor to determine an incumbent to be allowed the charge of the next promotional post, as has been ruled by this Court in Satya Charan Biswas (supra), a departure from such a norm on relevant and cogent grounds cannot be wholly impermissible. A margin of flexibility has to be conceded in the administration of the departmental affairs and interference in the exercise of power of judicial review would be justified, if the decision is condemnable for blatant contravention of law or the prescribed procedure therefore or vitiation by extraneous considerations or fraud on power. An administrative authority, though, empowered to decide an issue appertaining administrative functioning, has to be guided by relevance and reason. 12. The official record on scrutiny does not divulge any overzealous and motivated approach of the departmental Minister, so as to proscribe his views to be absurd or preposterous as such or his decision vitiated by malafide. The reasons weighing with him to rule out the petitioner for being entrusted with the responsibilities of the Office of the Director of Elementary Education are not irrelevant. The assessment of the departmental Head involves a value judgment. The fact that Md. Mohsin Ali at some earlier point of time in similar conditions had been permitted to hold the dual charge of the Secretary, Assam Higher Secondary Education and the Director of Elementary Education Assam, does not ipso facto render the opinion expressed by the departmental Minister on his estimate of the prevailing circumstances, indefensible or flawed to merit interference in exercise of the writ jurisdiction of this Court. The view expressed, is a plausible one and the sufficiency and adequacy of the recorded justifications in support thereof, is not open to judicial review, this Court being not a forum, exercising appellate jurisdiction over administrative decisions. The departmental Head undoubtedly, is competent to make an overall assessment of the ground realities and take a decision considered to be appropriate to the situation. Only because a different view on the existing facts in entertainable, no interference would be justified. The departmental Head undoubtedly, is competent to make an overall assessment of the ground realities and take a decision considered to be appropriate to the situation. Only because a different view on the existing facts in entertainable, no interference would be justified. The materials on record, do not reveal any perversity, irrationality or illogicalness, so much so, that no reasonable man of ordinary prudence could have arrived at the decision taken. Considering the constricted scope of interference in the exercise of the power of judicial review, in my view, the petition does not disclose any acceptable ground to interfere with the impugned decision. The petition thus fails and is dismissed. No costs. Petition dismissed.