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2009 DIGILAW 273 (GAU)

Runu Medhi v. State of Assam

2009-04-29

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. Nothing could be more glaring an example of ministerial interference even in the matter of selection and appointment relating to public employment. The petitioner is before this Court as she has been deprived of her appointment inspite of the fact that she has topped the list of successful candidates. Such deprivation is on the basis of the dictation of the particular Minister to which the members of the Selection Committee shamelessly responded and translated the dictation into reality by recommending the respondent No. 7, although in the selection, it was the petitioner who on merit scored march over all others. 2. The petitioner alongwith others respondent to the advertisement dated 17.11.2007 by which applications were invited for filling up certain posts in the different Foreigners Tribunals throughout the State. In this proceeding, we are concerned with the post of LDA/Bench Assistant/Typist in the office of the Foreigners Tribunal (No. 2) Morigaon. Accepting the candidature offered by the petitioner, the authority invited her to the written test held on 3.8.2008 where she appeared. While the petitioner secured 64-1/2 marks, the respondent No. 7 secured 54-1/2 marks. 3. The written test was followed by type test, computer test and oral interview. Altogether the petitioner secured 88.16 marks, while the respondent No. 7 secured 78 marks. In the merit list prepared by the Selection Committee, the petitioner obtained 1st position, while the respondent No. 7 obtained 5th position. Surprisingly enough, inspite of such a position, the committee in its meeting held on 22.12.2008 considering the recommendation of the Minister, Food & Civil Supplies and Minority Affairs, recommended the respondent No. 7 for appointment. The committee considering such recommendation, adopted resolution to appoint the respondent No. 7, although, in the minutes of the meeting it took into account the merit list as per which, it was the petitioner, who should have been approved for appointment. Thus, the committee yielded to the pressure of the Minister and gave weightage to his desire instead of the merit position obtained by the candidates in the competitive examination. 4. The official respondents have not filed any counter affidavit realizing the fallacy in recommending the respondent No. 7 for appointment. However, the respondent No. 7, who is the beneficiary of the blessing of the Minister concerned, has filed an affidavit playing the cards of "majority and minority". 4. The official respondents have not filed any counter affidavit realizing the fallacy in recommending the respondent No. 7 for appointment. However, the respondent No. 7, who is the beneficiary of the blessing of the Minister concerned, has filed an affidavit playing the cards of "majority and minority". It is his case that although he has been placed at serial No. 5 the petitioner at serial No. 1 in the merit list, the authority, considering the fact that there were as many as 29 employees, all from majority community in the office of the Foreigners Tribunal No. 2, Morigaon decided to appoint him. It has also been contended that although, population pattern in the Morigaon district is approximately 50 : 50, there being no adequate representation from the said community in the matter of employment there is nothing wrong in appointing him in consideration of the said reality. 5. In the reply affidavit filed by the petitioner, such stand on the part of the respondent No. 7 has been denied. While reiterating and reaffirming the statements made in the writ petition, it has been stated that the respondent No. 7 has been recommended illegally as per dictation of the Minister on whose recommendation, the Selection Committee acted ignoring the merit positions obtained by the candidates. 6. Mr. S. Saikia, learned Counsel for the petitioner argued that there cannot be any better example than the present case in the matter of public employment on extraneous consideration. Mr. A.S. Choudhary, learned senior counsel, assisted by Md. Mominul, learned Counsel for the respondent No. 7, while admitting the factual aspects of the matter and that as per the merit position, it is the petitioner who should have been appointed, submitted that perhaps the respondent No. 7 is entitled to reservation in the matter of employment, he being a member of the minority community. 7. I have considered the submissions made by the learned Counsel for the parties and the materials available on record. I have given my anxious consideration to the same. 8. There cannot be any second opinion to the irresistible opinion and conclusion, which could be formed in the glaring and staring factual aspects of the matter. The irresistible opinion and conclusion is that the merit has been ignored and the desire of the particular Minister has been preferred shamelessly by the members of the Selection Committee. 9. 8. There cannot be any second opinion to the irresistible opinion and conclusion, which could be formed in the glaring and staring factual aspects of the matter. The irresistible opinion and conclusion is that the merit has been ignored and the desire of the particular Minister has been preferred shamelessly by the members of the Selection Committee. 9. As noted above, the petitioner secured total 88.16 marks as against 78 marks secured by the respondent No. 7. In the selection, the petitioner secured 1st position while the respondent No. 7 secured 5th position. Thus, there could not have been any choice other than the petitioner who is also entitled to reservation provided for women. However, since she could come out successful on her own merit, irrespective of such reservation, there was no escape from appointing her to the post in question. On a bare perusal of the minutes of the meeting held on 22.12.2008, it is seen that in all other categories, candidates have been recommended on the basis of merit positions except the one with which the present proceeding is concerned. The minutes of the meeting has shamelessly mentioned about the recommendation of the Minister of Food & Civil Supplies and Minority Affairs in favour of the respondent No. 7. The particular observation of the committee is quoted below: The Committee had examined the list No. III (Bench Asstt.) which contains 6 names. In this connection the Committee has considered the recommendation of the Hon'ble Minister Food & Civil Supply & Minority Affairs for Md. Nabi Hussain. The Committee had discussed the matter with all the members present and considered recommendation of Hon'ble Minister for appointment of Md. Nabi Hussain as a special case for the post of Bench Assistant. 10. The Selection Committee consisted of the responsible officers like-Deputy Commissioner, Additional Deputy Commissioner, Sub-Divisional Officer, District Employment Officer and the Member of the Foreigners Tribunal of the district and all of them readily agreed to the proposal made by the Minister for appointment of the respondent No. 7 ignoring the merit position obtained by the candidates, in which the petitioner stood 1st securing the highest marks among the candidates. Such conduct on the part of the members of the Selection Committee is unbecoming of the conduct expected from a Government Officer. Such conduct on the part of the members of the Selection Committee is unbecoming of the conduct expected from a Government Officer. They did not act keeping their head high and maintaining absolute integrity, but acted as per the choices of the said Minister, for which they are liable for departmental proceedings. 11. The above episode has reminded me of the observation of the Apex Court in, Tarlochan Dev Sharma v. State of Punjab reported in (2001) 6 SCC 260 . In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions to mortgage there own discretion, violation 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 superior. In (Anirduhsinghji Karan Singhji Jadeja JT 1995 (9) SC 603: 1995 (5) SCC 302 , this Court has 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 observations of this Court in The Purtabpur Company Ltd., AIR 1970 SC 1896 , are Instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. 12. 12. Although, during the course of hearing a feeble attempt was made on behalf of the respondent No. 7 to project his case as one of reservation for the minority community, but from the materials on record, I do not find that any such reservation has been provided for the minority community, rather, it is the petitioner/who is entitled to claim reservation for women. However, since she has been selected on her own merit and has occupied 1st position in the merit list, she not harped upon that. Merely, because the particular Minister desired appointment of the respondent No. 7 and the members of the Selection Committee readily and shamelessly agreed to implement such desire of the minister, it cannot be projected to be a case of reservation for minority community. The stand of the respondent No. 7 in his affidavit, playing the cards of majority and minority is also unfortunate more so, when the facts in the present proceeding speak otherwise. 13. For all the aforesaid reasons, the writ petition is allowed directing the respondents to appoint the petitioner forthwith in the post of bench Assistant in the office of the Foreigners Tribunal No. 2, Morigaon. Consequently the recommendation No. 3 in the minutes of the meeting of the Selection Committee held on 22.12.2008 (Annexure-6) stand set aside and quashed alongwith all consequential actions/orders towards implementation of the same. 14. The Registry shall send a copy of this judgment and order to the Chief Secretary of the State enabling him to take appropriate action against the members of the Selection Committee after providing them adequate opportunity of being heard. Let a copy of this judgment and order be also sent to the Chief Minister of the State for appraisal of the ministerial interference even in the matter of public employments. 15. The writ petition is allowed imposing a cost of Rs. 10,000/- against the members of the Selection Committee who are the party respondents Nos. 2, 3, 4, 5 and 6 to be borne by each one of them in equal shares. The Registry shall realize the cost in accordance with the rules, if the same is not deposited by the said respondents within a period of one month from today. Petition allowed