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2009 DIGILAW 669 (GAU)

Marmik Riba v. State of Arunachal Pradesh

2009-09-15

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. K. Ete, learned Counsel for the petitioner, Mr. R.H. Nabam, learned Senior Govt. Advocate, appearing for the respondent Nos. 1 to 3 and Mr. K. Tado, learned Counsel for the respondent No. 4. 2. The pleaded case of the petitioner is that he was appointed as Assistant Teacher vide order dated 28.11.1986 and thereafter, he was appointed as Junior Teacher ('JT' in short) vide order dated 6.7.1987. He, having acquired the requisite qualification and eligibility criteria, was appointed as Assistant District Education Officer ('ADEO' in short) vide order dated 2.6.2003 and posted at Likabali in which he has been serving for last 5 years. Meanwhile, the Govt. decided to streamline the appointments of ADEOs in the Education Department as there were excess appointments of ADEOs without following the due process/norms or procedure. The appointment of the petitioner as ADEO, was, of course, made in due process. The respondent authorities, in their effort to streamline the appointments of ADEOs, sought for recommendation from the respective Deputy Director of School Education ('DDSE' in short) of all the districts. Accordingly, the DDSE, West Siang District, forwarded the names of suitable ADEOs by way of recommendations on 24.1,2008 as per their seniority wherein the name of the petitioner found place at serial No. 3. But the respondent authorities illegally appointed the private respondent No. 4, who was not recommended by the DDSE, West Siang District in place of the petitioner and thereby the service of the petitioner as ADEO has been discharged unceremoniously vide order dated 18.7.2008. The present petition has been filed challenging the legality or validity of the aforesaid impugned order dated 18-7-2008 so far it relates to the appointment of private respondent No. 4. 3. Mr. K. Ete, learned Counsel for the petitioner submits that the action of the respondent authorities in discharging the petitioner from the service of ADEO is arbitrary and illegal inasmuch as his case was recommended by the DDSE for appointment as ADEO. Similarly, the appointment of private respondent No. 4 as ADEO, without being recommended by the DDSE concerned, is also arbitrary and illegal which is liable to be set aside. He further submits that the petitioner has gained sufficient experience while serving as ADEO for last 5 years and he is a better qualified person than the private respondent No. 4. Similarly, the appointment of private respondent No. 4 as ADEO, without being recommended by the DDSE concerned, is also arbitrary and illegal which is liable to be set aside. He further submits that the petitioner has gained sufficient experience while serving as ADEO for last 5 years and he is a better qualified person than the private respondent No. 4. The respondent authorities while exercising power of discretion have violated the Principle of Wednesbury as laid down by the Apex Court in Union of India and Anr. v. G. Ganayutham, (1997) 7 SCC 463 wherein it is held that while examining 'reasonableness' of an administrative decision, the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one while no sensible person could have reasonably arrived at, having regard to the above choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. In order to establish his submissions, he relies on the observations made in para 12, which are quoted below: 12. This case is treated as laying down various basic principles relating to judicial review of administrative or statutory discretion. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the Judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation KB at P.229: All ER p. 682. It reads as follows: ...It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'reasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are Irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are Irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority.... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and In fact, all these things run into one another. Lord Greene also observed (KB p. 230 : All ER p. 683) ...it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to. It is not what the Court considers unreasonable.... The effect of the legislation is not to set up the Court as an arbiter of the correctness of one view over another. Therefore, to arrive at a decision on "reasonableness" the Court has to find out if the administrator has left out relevant factors or taken into account Irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. 4. Mr. Nabam, learned Senior Govt. Advocate, appearing for the respondent authorities submits that the factual aspects of the matter are not disputed. Based on averments made in the counter affidavit filed by official respondents, he, however, submits that the post of ADEO is not a promotional post. The posts of ADEO and JT carry equal pay scale and they are in the same status. Both the posts of ADEO & JT are inter-changeable without any extra financial benefit. There is no service rule for appointment/promotion to the post of ADEO. The posts of ADEO and JT carry equal pay scale and they are in the same status. Both the posts of ADEO & JT are inter-changeable without any extra financial benefit. There is no service rule for appointment/promotion to the post of ADEO. He further submits the JTs are given charge of ADEOs as a matter of internal arrangement and no right accrues by the ADEOs for continuing in the said posts on the basis of such appointment. They may again be posted as JTs and such posting cannot be termed as reduction in rank. It is also submitted by Mr. Nabam that the DDSE of West Siang District while forwarding the list of ADEOs and APOs vide his letter dated 25.1.2008 (Annexure-4 to the writ petition) did not include any name from JTs and he sent up only the names of 15 ADEOs and 01 APO, who have already been working as ADEOs. For this reason, the respondent authorities have appointed the respondent No. 4 as ADEO although his name was not sent-up by the DDSE/respondent No. 3. The petitioner, admittedly, has already been given chance to work as ADEO and he cannot claim to continue to serve as ADEO for an indefinite period of time. The writ petitioner, according to Mr. Nabam, cannot raise the question of arbitrary and illegal action in respect of the appointment of the private respondent No. 4 as ADEO in place of the petitioner. 5. From the pleadings and submissions made by the learned Counsel for the parties, it is discernible that both the petitioner and the private respondent No. 4 are working as JTs under the Education Department of Arunachal Pradesh. Some JTs are allowed to work as ADEOs in the pay scale of JTs without giving any extra financial benefit. It means that both JTs and ADEOs draw the salary in the same pay scale and the posts are inter-changeable. There is no service rule for appointment to the post of ADEO. The respondent authorities are vested with discretionary power in the matter of appointment of ADEOs and while exercising the said discretion, the respondent authorities call for particulars of JTs from the respective DDSE. In the present case, the particulars of the JTs were obtained from the respondent No. 3 but while forwarding the names, he did not include the names of JTs. In the present case, the particulars of the JTs were obtained from the respondent No. 3 but while forwarding the names, he did not include the names of JTs. In his letter dated 25.1.2008 (Annexure-4 to the writ petition), the respondent No. 3, forwarded the names of 15 ADEOs and 01 APO, who were already working as ADEOs, although, it was incumbent upon the respondent No. 3 to forward some names of JTs as per their seniority. The petitioner, admittedly, has been working as ADEO since 3.6.2003 whereas the private respondent No. 4 has never been given the chance for serving as ADEO. The opportunity of appointment as ADEO is to be given to the other JTs who have never been given the said chance earlier. For the sake of giving equal opportunity and fairness, the respondent authorities have thought it proper and fair to give a chance to respondent No. 4 to serve as ADEO in place of the petitioner which cannot be faulted on the ground of arbitrariness and illegality as raised by the petitioner, 6. The petitioner has not been able to show that the respondent No. 4 was ever appointed as ADEO earlier. Nor has he been able to show that the respondent No. 4 is otherwise, no fit or eligible for being appointed as ADEO. If it is admitted that appointment of ADEOs from the JTs is a matter of discretion of the respondent authorities, the submissions of the petitioner that the respondent No. 4 cannot be appointed as ADEO as he was not recommended by the DDSE concerned, cannot be accepted inasmuch as the said DDSE failed to include any name from JTs in the panel of 16 ADEOs/APO. There is no reason why the JTs who are already serving as ADEOs should only be allowed to function as ADEOs and the other JTs who have never been given chance to serve as ADEOs should be left out. From the materials made available before this Court, I could not find out as to whether the Govt. created the posts of ADEOs or as to whether there is a separate cadre for the ADEOs. It is found that some JTs are appointed as ADEOs only to cope with the extra work load of Education Department in the administration side without giving any extra financial benefit to them. created the posts of ADEOs or as to whether there is a separate cadre for the ADEOs. It is found that some JTs are appointed as ADEOs only to cope with the extra work load of Education Department in the administration side without giving any extra financial benefit to them. If it is so, it would be fair if other JTs like the respondent No. 4 are given chance to gain experience in the administrative side by allowing them to serve as ADEOs. Considered from the aforesaid angle, the respondent authorities, in my considered view, committed no illegality or arbitrariness in appointing the private respondent No. 4 as ADEO in place of the petitioner. 7. In my considered view, the Principle of Wednesbury as urged upon by the petitioner would not be applicable to the present case. In view of the aforesaid facts and circumstances and discussions, I find that this petition is without any merit and accordingly, the same is liable to be dismissed. Thus, the present petition stands dismissed. 8. There shall be no order as to costs. Petition dismissed