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2007 DIGILAW 662 (GAU)

Basanta Kumar Kakoti v. State of Assam

2007-10-01

HRISHIKESH ROY, J.CHELAMESWAR

body2007
JUDGMENT Hrishikesh Roy, J. 1. The present writ petition has been filed purportedly in public interest, challenging the order dated 19.12.2006 (Annexure-1) whereby, the respondent No. 3 has been posted as Chief Secretary to the Government of Assam. Pleadings have been advanced alleging involvement of the said respondent in facilitating irregular disbursement of a loan of Rs. 7,45,09,390.53 in favour of M/s. Brahmaputra Sugar Manufacturing Company Ltd. by the Assam Co-operative Apex Bank, where the respondent No. 3 was an ex-officio member of the Board of directors of the Bank, while he was posted as Commissioner-cum-Secretary of the Co-operation department. 2. The petitioners have also referred to the additional affidavit filed on 4.1.2007 to contend that in view of findings of the report dated 21.1.1997 of S. Manoharan, IAS regarding the functioning of the Education department of Government of Assam, the respondent No. 3 should not be' considered to be an eligible person for being posted as the Chief Secretary of the State. It is also pleaded that there are other senior IAS officers who are also entitled to be posted as Chief Secretary and the respondent No. 3, considering the record of respondent No. 3, he should not have been chosen for such prestigious posting, by disregarding the claim of other eligible officers. 3. We have heard Mr. M.U. Mahmood, learned Counsel for the petitioner and Mr. K.N. Choudhury, learned Addl. Advocate General, Assam. 4. The learned Counsel for the petitioner in support of his challenge has submitted that the post of Chief Secretary is a crucial post in the State administration and only a person with impeccable records should be considered for such posting. It is argued that the respondent No. 3 should not have been considered as a suitable person for being posted as the Chief Secretary as allegations of corruption and mismanagement have been levelled against him, while he was posted in the Department of Education as well as in the Department of Co-operation and if such a person is made the Chief Secretary, he might try to interfere with the investigation of the charges against him. Mr. Mr. Mahmood has further argued that the posting of the respondent No. 3 is a matter of public concern and the two petitioners, who are stated to be the public spirited citizens have approached this Court, out of their concern to protect the interest of the people of the State. 5. Mr. K.N. Choudhury, the learned Addl advocate General, Assam challenges the maintainability of the writ petition and has submitted that in service related matters, entertainment of Public Interest Litigation at the instance of total strangers is uncalled for. It is also contended that grievances raised by strangers pertaining to posting of a person to a specific post are matters, which ought not to be entertained by the High Court. 6. On the merits of the contention raised vis-a-vis the allegations against respondent No. 3, the learned state counsel has drawn attention of this Court to the final report dated 30.9.2005 submitted by the CBI, in the court of Special Judge (CBI), Assam in RC-1(A)/2002-SHG which was the case registered in connection with the loan granted by the Assam Co-operative Apex Bank to M/s. Brahmaputra Sugar Manufacturing Company Ltd. In the said final report, the CBI has indicated that "no intention part of any of the public servant could be established to indicate favour in sanction of the loan. Rather, sincere efforts seem to have been made to run the mill from the side of the Bank as well as from the management of M/s. Brahmaputra Sugar Manufacturing Company Ltd. No evidence could come which would indicate criminal intention on part either of the Bank or the lessee of the mill." As per the said final report of the CBI nothing incriminating is found against the respondent No. 3. However, the Special Judge (CBI) by his order dated 18.8.2006 in Misc. Case No. 40/05 has declined to accept the said final report and directed further investigation into the matter. 7. Responding to a specific quarry raised by this Court, the learned Addl Advocate General has produced necessary documents to show that as regards the loan granted to M/s Brahmaputra Sugar Manufacturing Co. Ltd. by the Apex Bank, the Sugar sale proceeds ordered to be deposited by this Court on 23.8.199.0 in Civil Rule No. 5786/97, has since been deposited with the Bank, towards liquidation of the loan amount. 8. Ltd. by the Apex Bank, the Sugar sale proceeds ordered to be deposited by this Court on 23.8.199.0 in Civil Rule No. 5786/97, has since been deposited with the Bank, towards liquidation of the loan amount. 8. The State Counsel has also drawn attention of this Court to the report submitted by S. Manoharan, IAS and has submitted that the indictment of the committee is with regard to the Directors and Field Level Officials of the Education department and no incriminating finding whatsoever has been recorded on the functioning of the respondent No. 3. 9. On the basis of the above submissions, Mr. Choudhury has argued that there is nothing adverse or incriminating against the respondent No. 3 which would disentitle him from being considered for the post of Chief Secretary by the State. 10. It is further argued by the learned Addl. Advocate General that, it is for the Government to decide after considering all relevant factors to post a particular person to a particular post and interference of the court is not called for unless the selected person is not found eligible for such posting. 11. In the instant case, no materials have been brought before this Court to take the view that the respondent No. 3 is in any way disqualified to be appointed to the post of Chief Secretary of the State. Nothing has been placed before us to show that the State Government had ever tried to shield the respondent No. 3 from the charges levelled against him. On the contrary, in respect of the serious allegation of facilitating an irregular Bank loan to M/s. Brahmaputra Sugar Manufacturing Company Ltd. the CBI has filed the final report and no adverse finding has been recorded against the respondent No. 3. Furthermore, there is no indictment of the respondent No. 3 in the report of the Manoharan committee as well. 12. Thus, on merit, we do not find anything on record to take a view that the respondent No. 3 is not eligible or qualified to be posted as the Chief Secretary of the State. 13. Furthermore, there is no indictment of the respondent No. 3 in the report of the Manoharan committee as well. 12. Thus, on merit, we do not find anything on record to take a view that the respondent No. 3 is not eligible or qualified to be posted as the Chief Secretary of the State. 13. As regards the contentions advanced that there are other eligible IAS officers senior to the respondent No. 3, who could be appointed as Chief Secretary, we are of the opinion that the petitioners who seek to espouse a public cause are not entitled to base their, challenge against respondent No. 3 on the basis of other eligible officers being available, who could have been considered for posting by the Assam Government...as its Chief Secretary. It is for the State Government to decide which officer is to be posted against which post and this Court should not to interfere with such decision of the State Government in the absence of any pressing justification. If any other eligible contender to the post is available, who might feel aggrieved by posting of respondent No. 3 to the post of Chief Secretary, such a person is not making any challenge to the impugned appointment. 14. In our perception, the writ petitioners have failed to lay before this Court convincing materials justifying invocation of extraordinary powers of a writ court in a matter of this nature. 15. In view of above discussion, the PIL is held to be without any merit and the same is accordingly dismissed.