Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 393 (GAU)

Dimbes Wargogoi v. State of Assam and Ors.

2007-06-01

AFTAB H.SAIKIA

body2007
1. Heard Mr. A.K. Purkayastha learned counsel for the petitioner and Mr. M. Dutta, learned Govt. counsel representing the State respondents including Mr. T. Chutia, learned standing counsel, Assam Public Service Commission ('APSC'). 2. This is an application under section 226 of the Constitution of India seeking for issuance of writ or in the nature of certiorari or Mandamus and/or any other appropriate writ or order or direction quashing and setting aside the judgment and order dated 21.3.2001 passed by the Assam Administrative Tribunal ("the Tribunal') in Appeal Case No. 32ATA/99 whereby the appeal preferred by the petitioner was dismissed and thereby upholding the findings arrived at by the disciplinary authority in the matter of permanently withholding the pensionary benefit, holding that the appellant did great misconduct by misusing his official power with further observation that the appeal preferred by the petitioner was beyond the jurisdiction of the Tribunal for not exhausting all the remedies available to the appellant/petitioner. 3. The brief facts leading to filing this writ petition may be noticed below: (A) The appellant while serving as a Deputy Inspector of Schools ('D.I.'), Dhemaji, was alleged to have appointed 688 Nos. of Teachers in excess of the 169 sanctioned posts. According to the appellant, the appointments were made under extraneous circumstances and pressures from influential circles including the President of the Sub-Divisional Elementary Advisory Board. He further stated that at the relevant point of time a complete chaotic condition was prevailing at the Sub-Division mainly, due to the high handed activities of the extremist organizations and some other organizations like All Assam Tai Students Union, etc. It was contended that taking the advantage of the chaotic condition, some persons even forged his signature and issued such false appointment letters and such appointees even joined in some schools. (B) The Joint Director, Elementary Education, Assam, made an inquiry in this regard and even he also in his report dated 4.6.1990 (Annexure-16 to Appeal Memo) observed that some candidates who had not been selected and even not called for interview were appointed in such manner and as many as 217 candidates had already got appointed, most of them illegally because of pressure of influential circles including the slips issued by the Chairman and some members of the Sub-Divisional Elementary Advisory Board ('the SEAB') and without required norms and without being selected either by the selection committee or by the SEAB. Several other organizations also pressurized the Member of the SEAB and the D.I. for appointment. (C) On receipt of the reports from the Joint Director, Elementary Education, Assam, the Commissioner & Secretary to the G(3vt. of Assam, Education Department issued a show-cause notice to the petitioner and asked him to file his statement in defence within 15 days. The appellant requested the departmental authority to provide him with the copies of certain documents for facilitating the preparation of the statement in defence, but the departmental authority did not produce those documents. Even so, the petitioner filed a statement of his defence on 22.5.1993 to the Deputy Secretary to the Govt. of Assam, Education Department and pleaded not guilty inasmuch as he had to commit the irregularities under the peculiar and abnormal circumstances prevailing in Dhemaji Sub-Division at that time and also under the pressure of the influential circles including some terrorist organizations. His further contention was that he informed the local administration as well as the police but no action from any quarter was taken on the matter. (D) Thereafter, the petitioner was placed under suspension by the Commissioner and Secretary to the Government of Assam, Education Department vide Order No. EPG.70/90/1 dated 20.2.1990. (E) The petitioner retired on 29.2.1992 and the Government vide Notification No. EPG.506/91/38-A dated 1.4.1992 converted the disciplinary proceeding against the petitioner under rule 21, of the Assam Services (Pension) Rules, 1969 ('the Rules') with effect from 1.3.1992. According to him, although he submitted his statement of defence on 22.3.1993, the disciplinary authority did not take any action conducting any inquiry despite the repeated requests of the petitioner for early disposal of the disciplinary proceeding and also for granting the pensionary benefit to him. He even filed an appeal on 16.8.1994 to the Commissioner & Secretary of the Department concerned in this regard. (F) But in spite of that, the departmental authority did not dispose of the said departmental proceeding. Having no alternative, the petitioner knocked the door of the Tribunal by way of Appeal No. 20ATA/95 and the Tribunal by its order dated 4.11,1995 passed a direction to the departmental authority to dispose of the appeal dated 16.8.1994. (G) In compliance of the Tribunal's direction, the Commissioner & Secretary to the Govt. Having no alternative, the petitioner knocked the door of the Tribunal by way of Appeal No. 20ATA/95 and the Tribunal by its order dated 4.11,1995 passed a direction to the departmental authority to dispose of the appeal dated 16.8.1994. (G) In compliance of the Tribunal's direction, the Commissioner & Secretary to the Govt. of Assam, Education Department vide his Order No. A(1)EE.311/95/93, dated 19.1.1996 (Annexure-23 of the Appeal Memo) disposed of the appeal petition dated 16.8.1994 and found and hold that the charges against the petitioner to be proved beyond reasonable doubt. He also found that the petitioner did not only misuse his official power but also seriously subverted the discipline in the office of the petitioner. He also found the petitioner to be involved in public scandal for issuing appointment letters against non-existent posts. He, therefore rejected the representation dated 16.8.1994 filed by the petitioner. However, since the matter was subjudiced before the Tribunal, he did not pronounce the indictment. (H) Being aggrieved by the aforesaid order, the petitioner as appellant filed the Appeal No. 43 ATA/93 wherein the Tribunal vide its order dated 9.10.1995 directed the departmental authority to dispose of all the proceedings within a period of three months keeping the said Appeal No. 43ATA/93 in abeyance. In the meanwhile, the respondents obtained the views of the Assam Public. Service Commission ('APSC') in respect of the matter relating to the withholding of pension and other pensionary benefits to the petitioner. The Secretary to the Govt. of Assam, Education Department having received the views of the APSC disposed of the departmental proceeding and withheld the pension of the petitioner permanently. (I) Dissatisfied with the said order the petitioner again moved the Tribunal with a prayer to set aside the said order of the Secretary to the Government of Assam, Education Department. (J) The respondents contested the appeal before the Tribunal by filing an affidavit-in-opposition through the Joint Secretary to the Govt. of Assam, Education Department wherein the respondents denied the contentions and allegations of the petitioner. According to the respondents, the petitioner was a victim of his self-created circumstances. The allegations as to the pressurization by the extremist outfits and other organizations were wholly denied and refuted by the respondents. of Assam, Education Department wherein the respondents denied the contentions and allegations of the petitioner. According to the respondents, the petitioner was a victim of his self-created circumstances. The allegations as to the pressurization by the extremist outfits and other organizations were wholly denied and refuted by the respondents. It was contended that if any such untoward situation ever happened and arose at all, the petitioner ought to have brought to the notice of the higher authorities about those facts. However, according to them, the petitioner taking advantage of the alleged situation misused his power and appointed 688 persons as teachers although there were no so much vacancies at the relevant point of time and thereby he made the Government liable in huge financial involvement. The petitioner was duty bound to appoint only the selected candidates in accordance with the Rules and not on the basis of slips, if there was any, issued by any influential quarter including the politicians, ministers and other organization. According to the chaotic condition at Dhemaji at that time as stated by the petitioner was baseless. They further contended that following the suspension of the petitioner, notice dated 23.8.1991 asking him to show cause was issued and the petitioner filed reply. The proceeding was, thereafter, converted into a proceeding under rule 21, of the Pension Rules after following the due formalities thereof. At any rate, according to the respondents, the petitioner misused his power, appointed teachers in excess of the sanctioned vacancies and thereby caused heavy loss to the Government. Their further contention was that the grounds of the appeal as advanced by the petitioner as appellant are not tenable in law and the petitioner is not entitled to the relief prayed for. 4. The learned Tribunal upon hearing learned counsel for the parties and having considered thoroughly the materials available on record, vide impugned judgment dated 21.3.2001 dismissed the appeal holding that there is no reason whatsoever to interfere with the findings arrived at by the disciplinary authority. 5. Being aggrieved by the impugned judgment dated 21.3.2001 passed by the Tribunal as well as the orders dated 19.1.2006 passed by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur and the order dated 6.2.1999 issued by the Secretary to the Government of Assam, Education Department, Dispur, the petitioner has moved this court filing the instant writ petition. 6. Mr. 6. Mr. Purkayastha, learned counsel representing the petitioner, has forcefully argued that the Tribunal in rejecting the appeal committed grave error apparent on the face of the judgment itself. Because, it failed to consider and appreciate the basic issue as regards the violation of mandatory provision of rule 9, of the Assam Services (Discipline and Appeal) Rules, 1964 ('the Service Rules') and more particularly, the illegal conversion of the proceeding, so initiated under the Service Rules into rule 21, of the Assam Services (Pension) Rules, 1969 ('the Pension Rules'). His specific stand is that whatever appointments made in excess, were made only under the tremendous pressure put on him by the high profile political personalities, several organizations and more importantly the extremist outfits. Had there been no such extra constitutional pressure and circumstances beyond his control, such appointments would not have been made by the petitioner. Mr. Purkayastha has also vehemently contended that during the departmental proceeding no witnesses were examined and thereby petitioner was deprived of his legal right to cross-examine of those witnesses, though list of witnesses were prepared and furnished to him. The basic thrust of the argument of Mr. Purkayastha is that the inquiry as provided under rule 9, of the Service Rules was not at all conducted and rather the petitioner was punished unnecessarily and illegally by converting the inquiry from the above Service Rules into the Pension Rules. 7. In support of the impugned judgment, Mr. Dutta, learned Standing Counsel, Education Department has submitted that the allegations and claims so set out by the petitioner in this petition and that too basically as regards the pressurization of the high political authorities including extremist groups as well as other organizations cannot be accepted because at no point of time the petitioner brought those extraneous circumstances to the notice of the higher authority. According to him, taking advantage of such situation prevailed on that relevant time, the petitioner misused his official power and appointed 688 teachers in excess of the existing vacancies of 169 posts. According to him, the imposition of punishment upon the petitioner by the respondents is just and proper and accordingly no interference to the same is called upon. 8. According to him, taking advantage of such situation prevailed on that relevant time, the petitioner misused his official power and appointed 688 teachers in excess of the existing vacancies of 169 posts. According to him, the imposition of punishment upon the petitioner by the respondents is just and proper and accordingly no interference to the same is called upon. 8. Having given our thoughtful consideration to the submissions so canvassed by the rival parties and also on meticulous scanning of the entire materials made available before this court including the averments and statement made in this writ petition, it transpires that the Disciplinary Authority framed the definite charges against the petitioner and he was also duly served with show cause to which he replied by presenting the statement in defence and also an inquiry officer was appointed for the proceeding. More particularly, from close perusal of the averments made in paragraph Nos. 5, 6, 7, 8, 9 and 10 of this writ petition including the statement of defence filed by the petitioner, it is seen that the petitioner admitted the allegation charged that he appointed 688 teachers in excess against the actual vacancies of 169 posts. The reason for such excess appointment, as per the version of the petitioner himself, is that he was pressurized and threatened by high-ranking authorities including politicians and by the extremists. However, such facts could not be proved by the petitioner during the course of his departmental inquiry. Even, he was found to be negligent in proving such circumstances as expressed by him. 9. The plea, so taken by the petitioner, is not at all tenable in the eye of law. It is settled law that a responsible officer is not supposed to mortgage his own discretion and be prepared to give way and or being pushed back or pressed ahead at the behest of any politician or any extremist groups. It is incumbent upon a civil servant to maintain all through out his service career honesty and integrity. He must behave in a manner that befits the position of a government servant. He is required to demonstrate his complete devotion to duty and he should not succumb to the pressure and dictation of any authority whatsoever. 10. The Apex Court in Tarcholan Dev Sharma v. State of Punjab (2001) 6 SCC 260 in paragraph 16 the Apex Court observed as under: "16. He is required to demonstrate his complete devotion to duty and he should not succumb to the pressure and dictation of any authority whatsoever. 10. The Apex Court in Tarcholan Dev Sharma v. State of Punjab (2001) 6 SCC 260 in paragraph 16 the Apex Court observed as under: "16. In the system of Indian democratic governance as contemplated by the constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The conduct rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this court held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether." 11. The ratio of Tarcholan Dev's case (supra) has also been relied upon by Division Bench of this court in Writ Appeal No. 136/2004 (State of Nagaland and Others v. S. W. Yaden) disposed of on 16.6.2005. 12. In, S.W. Yaden's case (supra) the respondent therein while serving as Deputy Inspector General of Police (Wireless) ('DIG') was charged with the basic allegation vide Memo of Chargesheet dated 27.2.2001 that while functioning as DIG, he appointed Constable Operators and Constable Messengers without sanctioned posts and much in excess (over 400) of the authorized strength. Against such basic charge amongst others the respondent virtually admitted in his written statement filed against those allegations by stating that illegal appointments so made by him were done as per recommendation made by superior authorities and also under pressure of the extremist groups. Against such basic charge amongst others the respondent virtually admitted in his written statement filed against those allegations by stating that illegal appointments so made by him were done as per recommendation made by superior authorities and also under pressure of the extremist groups. However, the disciplinary authority on consideration of the entire material available on record imposed upon the respondent with the penalty of compulsory retirement from service by order dated 27.11.2003. The decision of the disciplinary authority was interfered with by the learned Single Judge setting aside the major penalty of compulsory retirement. However, the writ appellate court by its judgment and order dated 16.6.2005 set aside the order rendered by the learned Single Judge holding that the ground taken by the respondent that illegal appointments were made as per the recommendation made by the superior authorities was not tenable. 13. In view of what has been discussed and also having regard to the ratio laid down in Tarlochan Dev's case (supra), this court does not find any error apparent on the face of the impugned judgment calling for any interference. 14. In the result, this writ petition stands dismissed. No costs.