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2008 DIGILAW 55 (GAU)

Sudarsan Brahma v. State of Assam

2008-01-24

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. This writ petition is directed against the order of termination of services of the petitioner. 2. The facts as narrated in the writ petition are that the petitioner belonging to the Scheduled Tribes community responded to the advertisement issued by the Divisional Officer, Goalpara Soil Conservation Division, Kokrajhar, i.e. respondent No. 3, inviting applications for the post of Field Worker. Be it stated here that the writ petition does not disclose the date and the mode of issuing the advertisement. 3. By Annexure-A letter dated 09.11.99, the petitioner was invited for written test scheduled to be held on 23.11.99. According to the petitioner he was successful in the written test and thereafter he was invited for the interview conducted by the Selection Committee on 26.02.2000. The interview was conducted at the Circuit House, Guwahati. The petitioner has annexed the purported select list dated 26.03.2000 (Annexure-C). It is interesting to note that the petitioner was called for the interview scheduled to be held on 26.03.2000 at 9:30 A.M. by Annexure-B latter of the same date, i.e. 26.03.2000. 4. In support of the claim of the petitioner that he was selected for the post of Field Worker, he has annexed the purported select list dated 26.03.2000 (Annexure-C). Long 3 years thereafter the petitioner was appointed as Field Worker by Annexure-D appointment order dated 27.02.03 issued by the then Director of Soil Conservation, Assam, Guwahati, i.e. respondent No. 2. 5. Pursuant to the aforesaid order of appointment, the petitioner joined his service as Field Worker on 03.03.2003 and thereafter was transferred to another place by Annexure-E order dated 21.03.2003 issued by the respondent No. 3. Then followed the impugned Annexure-F order dated 22.05.03 issued by the respondent No. 2 terminating the services of the petitioner. The order reads as follows: OFFICE OF THE DIRECTOR SOIL CONSERVATION DEPARTMENT, ASSAM C.C. No. 30 Dt. Guwahati the 22nd May, 03 Shri, I. Dutta, Director of Soil Conservation, Assam (Retd.) appointed one Shri Sudarsan Brahma, S/o. Shri Beli Ram Brahma, Temporarily to officiate as Soil Conservation Field Worker vide his O.O. No. 468 dated 27.02.2003 immediately before Ms retirement on 28.02.2003. The appointment is irregular as no selection process like formation of Selection Board, holding of written test/interview of candidates etc. was done before issuing appointment order. Further no approval of State Level Empowered Committed (S.L.E.C) formed by Govt. The appointment is irregular as no selection process like formation of Selection Board, holding of written test/interview of candidates etc. was done before issuing appointment order. Further no approval of State Level Empowered Committed (S.L.E.C) formed by Govt. of Assam which is mandatory for fresh appointments, was taken prior to appointment. After careful consideration of all relevant aspects of the matter, the following order is passed. ORDER The irregular temporary and officiating appointment of Shri Sudarsan Brahma which was made arbitrarily, without following laid down procedures for fresh appointments is hereby terminated. The order will take immediate effect. Sd/- Director of Soil Conservation, Assam Memo No. EST-10(1)/Pt./03-04/1277-82 dated Guwahati, the 22nd May/03 6. The order was communicated to the petitioner by the respondent No. 3 by the Annexure-G letter dated 27.05.03. Since then the petitioner is no longer in service. He purportedly made Annexure-H representation (undated) to the Govt. of Assam in the Soil Conservation Department and thereafter filed the writ petition praying for setting aside and quashing of the impugned order. 7. The stand of the respondents in their counter affidavit is the one as reflected in the impugned order of termination. It is the case of the respondents that the then Director of Soil Conservation issued the order of appointment in favour of the petitioner on 27.02.03 just prior to his retirement on 28.03.03 on attaining the age of superannuation. According to the respondents, the petitioner was appointed without following the selection process. Further stand of the respondents is that, no approval of the State Level Empowered Committee (SLEC) was also obtained prior to appointment of the petitioner. In the affidavit in opposition, the respondents have admitted that the merit position of the petitioner in the select list dated 26.03.2000 was. at serial No. 2. However, their stand is that, at the time of appointment of the petitioner by order dated 27.02.03, the select list had long expired, validity of the same being only for one year. The respondents have further stated in the affidavit that the petitioner was appointed illegally by the outgoing Director of Soil Conservation just one day ahead of his retirement. The respondents have denied submission of any representation by the petitioner. 8. The respondents have further stated in the affidavit that the petitioner was appointed illegally by the outgoing Director of Soil Conservation just one day ahead of his retirement. The respondents have denied submission of any representation by the petitioner. 8. Thus, according to the respondents, since the petitioner was appointed illegally and there being no legal basis of appointment of the petitioner, his service had to be terminated by the impugned order. 9. Mr. A.S. Choudhury, learned Sr. counsel assisted by Mr. A. Maleque appearing for the petitioner argued primarily on the plea of violation of the principles of natural justice towards terminating the services of the petitioner. According to him the petitioner having been deprived of any opportunity of being heard, the impugned order is not sustainable. 10. Countering the above arguments, Ms. R. Chakraborty, learned State counsel as well Ms. M. Bordoloi, learned S.C., BTC have argued that when on the face of it, the very appointment of the petitioner was illegal, there was nothing wrong in terminating his service by the impugned order. Both of them have argued on the basis of the grounds assigned both in the impugned order as well as in the counter affidavit. 11. On being pointed out that the validity of the select list stood expired on 25.03.01 and thus the petitioner could not have been appointed two years thereafter, learned Counsel for the petitioner had no answer. However, it was submitted that if the respondents in their wisdom decided to appoint the petitioner even after expiry of the select list, no fault could be attributed to the petitioner. 12. From the materials on record what has transpired is that the petitioner was not appointed pursuant to his purported selection in the year 2000 (26.03.2000), but was appointed independent of the same by the outgoing Director of Soil Conservation one day ahead of his retirement. This is precisely the reason as to why in the order of appointment, there was no mention of selection of the petitioner. He was appointed temporarily to officiate as Soil Conservation Field Worker against the vacant post which had occurred due to death of one Shri. S.K. Roy. 13. By the time the petitioner was appointed one day ahead of the retirement of the then Director of Soil Conservation, the select list drawn on 26.03.2000 was no longer valid, same having spent its force. 13. By the time the petitioner was appointed one day ahead of the retirement of the then Director of Soil Conservation, the select list drawn on 26.03.2000 was no longer valid, same having spent its force. Admittedly the petitioner was appointed in 2003 (27.03.03) without following due procedure of selection. On that occasion there was no advertisement, no selection and no approval etc. as required was obtained from the Govt. level, more particularly, the SLEC. That being the position, I am of the considered opinion that there was nothing wrong in terminating the services of the petitioner by the impugned order dated 22.05.03. 14. As regards the plea of violation of the principles of natural justice, I have duly considered the submissions made by the learned Counsel for the petitioner. On being asked as to what more the petitioner could have agitated, had there being a notice to him before issuance of the impugned order of termination, learned Counsel for the petitioner could not point out any. When the fact speaks for itself and the petitioner is not in a position to place anything more then what has been stated in the writ petition and the argument advanced during the hearing, the plea of violation of the principles of natural justice, even if accepted, cannot improve the case of the petitioner. As has been pointed out by the Apex Court in Aligarh Muslim University v. Mansoor Ali Khan reported in AIR 2000 SC 2783 , if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in the case of Godde Venkateswar Rao v. Govt. of Andhra Pradesh reported in AIR 1986 SC 823, it is not necessary to quash the order merely because of violation of the principle of natural justice. 15. In the instant case also, in the event of setting aside and quashing of the impugned order, the order which will get revived is the order of appointment of the petitioner which admittedly was founded on illegality. The writ of mandamus as has been prayed for by the petitioner cannot be issued. A mandamus can be issued only when the applicant establishes that he has a legal right to the performance of the legal duty by the party against whom the mandamus is sought. The writ of mandamus as has been prayed for by the petitioner cannot be issued. A mandamus can be issued only when the applicant establishes that he has a legal right to the performance of the legal duty by the party against whom the mandamus is sought. No mandamus can be issued to direct the Govt. to refrain from enforcing the provisions of law or to do something which is contrary to law. 16. Under somewhat similar circumstances, the Apex Court in Madhya Pradesh Hasto Silpa Vikash Nigam Ltd. v. Devendra Kr. Jain reported in (1995) 1 SCC 638 , while interfering with the judgment and order passed by the High Court upheld the termination of the services of the incumbents. As in the instant case, in the said case also two fold pleas raised were, violation of the rules of natural justice and that no approval for appointment of the incumbents was necessary. The High Court accepted both the pleas, but the Apex Court opined that High Court fell in serious error in doing so. 17. As in the instant case, in the aforesaid case also the Managing Director of the Govt. Company appointed the respondents just at the eve of his retirement without following the due procedure. Noticing the circumstances in which the incumbents were appointed, it was observed by the Apex Court that no opportunity of being heard was necessary to be provided before passing the order of termination. 18. For all the foregoing reasons, I do not find any infirmity in the impugned order and consequently there is no question of issuing the writ as has been prayed for by the petitioner. Consequently, the writ petition fails and accordingly it is dismissed. Petition dismissed.