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2015 DIGILAW 261 (GAU)

Capt. Ved Barua v. State of Assam

2015-03-04

K.SREEDHAR RAO, UJJAL BHUYAN

body2015
Judgment Ujjal Bhuyan, J. Heard Mr. M.A. Sheikh, learned Counsel for the appellant, Mr. B.J. Talukdar, learned Government Advocate, Assam for respondents 1 to 4 and Mr. B.C. Das, learned Counsel for respondent No.5. There is no representation on behalf of respondent No. 6. 2. This writ appeal has been filed against the final order dated 21-02-2014 passed by the learned Single Judge dismissing the writ petition filed by the appellant challenging the appointment of respondent No.6 as Honorary Secretary of Assam Flying Club. 3. Facts of the case may be briefly noted. 4. An advertisement was issued by the Deputy Director, Sports and Youth Welfare, Assam which was published in the daily newspaper, the Assam Tribune, on 03-09-2013. The advertisement stated that applications were invited by Government of Assam from technically competent and interested persons for appointment as Honorary Secretary, Assam Flying Club (without payment of any remuneration) under clause 26(e) of the Byelaws of Assam Flying Club. Appellant submitted his application for the post of Honorary Secretary of Assam Flying Club pursuant to the said advertisement as he had the technical competence and was interested in such appointment. However, respondent No.6 was appointed as Honorary Secretary of Assam Flying Club vide notification dated 07-10-2013. Appellant filed WP(C) No.6809/2013 challenging the legality and validity of the aforesaid notification dated 07-10-2013 and for a direction to hold fresh selection. 5. Appellant contended that respondent No.6 did not have the technical competence and merely because he is the founder of College of Aeronautical Engineering would not confer eligibility on him. Further contention was that no selection was held and appointment of respondent No.6 was pre-determined. 6. The writ petition was contested by respondent Nos. 5 and 6 by filing a common affidavit. It was contended that respondent No.6 had the eligibility and the commitment to look after the affairs of Assam Flying Club which was earlier in a moribund State. In any case Byelaws of Assam Flying Club do not stipulate any eligibility criteria for appointment to the post of Honorary Secretary. Following the advertisement, the State Government scrutinized the credentials of all the candidates and found respondent No.6 to be the most suitable. Accordingly, he was appointed. Questions were also raised about the eligibility of the appellant. Allegation of choice of candidate being pre-determined was disputed and denied. 7. Following the advertisement, the State Government scrutinized the credentials of all the candidates and found respondent No.6 to be the most suitable. Accordingly, he was appointed. Questions were also raised about the eligibility of the appellant. Allegation of choice of candidate being pre-determined was disputed and denied. 7. Learned Single Judge on due consideration dismissed the writ petition after holding that no illegality was found in the decision of the Government to appoint respondent No. 6 and therefore no interference was called for. 8. Hence the writ appeal. 9. At the appellate stage, an affidavit has been filed on behalf of the Secretary to the Government of Assam, Sports and Youth Welfare Department. It is stated that an advertisement was published on 03-09-2013 inviting applications from technically competent and interested persons for appointment as Honorary Secretary of Assam Flying Club under clause 26(e) of the Byelaws of the Club. In response to the advertisement, 19 applications were received including that of respondent No. 6. Thereafter respondent No. 6 was appointed on honorary basis after considering the fact that he has the technical competence and the fact that he is the founder of an institute called College of Aeronautical Engineering at Guwahati. It is stated that after the appointment of respondent No. 6, the Assam Flying Club, which was a dying organization, has revived and its situation has improved. 10. We have heard the submissions made by learned counsel for the parties. 11. Before proceeding further, it would be apposite to refer to the order of the learned Single Judge dated 21-02-2014, the relevant portion of which reads as under:- “As per the advertisement issued on 03-09-2013 for appointment as Honourary Secretary of the Assam Flying Club, the person concerned is required to be technically competent. However, no qualification as such was laid down. Admittedly, respondent No. 6 is the founder of the College of Aeronautical Engineering having approval of the Directorate of Civil Aviation, Government of India. From the materials on record, it appears that the applications received in response to the advertisement were processed at different levels of the Government and, eventually, with the approval of the Chief Minister of the State, the respondent No.6 was selected for appointment to the said post. As the advertisement itself would indicate, the assignment is only honourary, without any remuneration. As the advertisement itself would indicate, the assignment is only honourary, without any remuneration. If the respondents, in their wisdom, have selected the respondent No.6 as the technically competent person to run the affairs of the Assam Flying Club as its Honourary Secretary, this Court, exercising its writ jurisdiction, cannot interfere with the said wisdom in absence of anything showing arbitrary and/or colourable exercise of power in respect of his selection. Going by the nature of the advertisement and the appointment in respect thereof, it cannot be said to fall within the domain of public employment as is understood in its common parlance. The respondent No. 6 has been selected by considering his application and credentials and, in the process, the candidatures of all other applicants were also considered and, eventually, on the basis of the materials furnished by the applicants, the authority decided to appoint the respondent No.6 as the Honourary Secretary of the Assam Flying Club, at Borjhar, Guwahati. That being the case, I do not find anything illegal to interfere with the said decision of the government and the appointment of respondent No.6”. 12. From a careful perusal of the order of the learned Single Judge it is seen that learned Single Judge took the view that going by the nature of the advertisement and the appointment, such appointment cannot be said to be within the domain of public employment as is understood in common parlance. Considering the nature of appointment, the procedure adopted by the authority in appointing respondent No.6 cannot be said to be arbitrary. The selection was processed at different levels and eventually had the approval of the Hon’ble Chief Minister. In the absence of anything showing colourable exercise of power, Court would not interfere with the selection. 13. From the documents on record it is seen that clause 26(e) of the Byelaws of Assam Flying Club deals with appointment of the Secretary and the terms and conditions of his appointment. It says that the Secretary shall be appointed by the State Government and shall enjoy all the privileges of a Director or ex-officio member on such terms and conditions as may be determined by the State Government. In other words, it is the State Government which is vested with the power to appoint the Secretary on such terms and conditions as may be determined by the State Government. 14. In other words, it is the State Government which is vested with the power to appoint the Secretary on such terms and conditions as may be determined by the State Government. 14. Coming to the advertisement, we find that it was issued by the Deputy Director of Sports and Youth Welfare, Government of Assam. Applications were invited by the Government of Assam for appointment as Secretary of Assam Flying Club. The Government had decided that such appointment would be on honorary basis i.e. without payment of any remuneration under clause 26(e) of the Byelaws. 15. The notification dated 07-10-2013 whereby respondent No. 6 was appointed as Honorary Secretary shows that it was issued under the signature of the Joint Secretary to the Government of Assam, Sports and Youth Welfare Department. It was a Government notification issued in the name of the Governor of Assam. 16. A conjoint reading of clause 26(e) of the Byelaws, the advertisement dated 03-09-2013 and the Government notification dated 07-10-2013 would show that the selection and appointment was made by the Government of Assam. It was an executive decision of the State. It is another matter that under clause 26(e), the State Government has decided to make such appointment on honorary basis i.e. without any salary or remuneration. Though the appointment of Secretary of Assam Flying Club may not fall within the domain of public employment stricto senso, nonetheless, it was a recruitment made by the Government. Infact under clause 26(e), it is the Government which is vested with the power to make the appointment. Therefore, it had all the trappings of public employment and would have to be judged from that perspective. 17. When an appointment partakes the character of public appointment, such appointment must meet the minimum standard of fairness and transparency. In other words, such an appointment must be in conformity with the requirement of Article 14 of the Constitution. The selection must be conducted in a reasonable manner which must not be arbitrary. There has to be a fair assessment of the candidature of the candidates. From the documents placed on record, including the note-sheet of the concerned file, which has not been disputed, 19 applications were received in terms of the advertisement. The selection must be conducted in a reasonable manner which must not be arbitrary. There has to be a fair assessment of the candidature of the candidates. From the documents placed on record, including the note-sheet of the concerned file, which has not been disputed, 19 applications were received in terms of the advertisement. As per note of the Commissioner and Secretary, Sports and Youth Welfare Department dated 03-10-2013, it is seen that out of the 19 applicants, as per paper sorting, respondent No. 6 was found to be the most suitable candidate. A proposal was submitted for appointment of respondent No. 6 as Secretary which had the approval of the Sports Minister as well as of the Chief Minister. 18. Such a selection, in our view, cannot be said to be a valid selection in the eye of law. When there were 19 applicants, there had to be a comparative assessment of the suitability of the candidates. Such assessment must meet at least minimum acceptable standard and must meet the twin test of fairness and transparency. It is for the authority to decide as to what procedure should be adopted for judging assessment of suitability of the competing claimants. Sorting of papers of the applicants and thereafter taking a view that one of the candidates is the most suitable cannot certainly be treated as an acceptable selection procedure in conformity with Article 14. 19. Accordingly, we are of the view that selection and consequential appointment of respondent No. 6 as Secretary of Assam Flying Club in the manner in which it was done, cannot be sustained and is accordingly set aside and quashed. Respondents 1 to 4 would be at liberty to hold fresh selection within a period of 4 months from the date of receipt of a certified copy of this order. During this interregnum, the said respondents would also be at liberty to make temporary arrangement for the post of Secretary as may be deemed fit so that functioning of the Assam Flying Club is not hampered. 20. Before parting with the record we make it clear that we have not gone into the claims and counter claims of the appellant and respondent No.6 or about their suitability. 21. Writ appeal is accordingly allowed. No cost.