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2015 DIGILAW 403 (GAU)

SYED SAZIDUR ROHMAN v. STATE OF ASSAM

2015-03-31

UJJAL BHUYAN

body2015
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. SB Rahman, learned counsel for the petitioner and Mr. S. Chetia, learned counsel for the respondents. 2. This is an application under Article 226 of the Constitution of India, whereby, petitioner has challenged the legality and validity of the orders dated 29.01.2011 (Annexure-7 to the writ petition) and 30.12.2013 (Annexure-10 to the writ petition). 3. By the first order dated 29.01.2011, petitioner's appointment as Nazir, in the office of the Superintendent of Taxes (Recovery), Golaghat, was cancelled and by the second order dated 30.12.2013, it has been held that it is not possible to relax the existing rules to accommodate the claim of the petitioner. 4. Facts of the case may be briefly narrated. 5. Advertisement notice dated 20.08.2010 was issued by the Superintendent of Taxes (Recovery), Golaghat to fill up one newly created post of Nazir in his establishment. It was stated that no one had applied from the office of the Assistant Commissioner of Taxes, Golaghat against the notified vacancy and subsequently, no experienced employee could be recommended by the Employment Exchange, Golaghat pursuant to requisition sent. Under such circumstances, it was, therefore, stated that in the interest of Govt. revenue, the said vacancy was required to be notified and filled up through open advertisement. 6. Petitioner was serving as Assistant Nazir under the Assam Sarba Siksha Abhiyan Mission (SSA) at that point of time. He responded to the said advertisement and submitted application. Following interview held, petitioner was selected and consequently appointed as Nazir vide order dated 20.10.2010. Thereafter, petitioner was released from the SSA and he joined his new post. 7. By the first impugned order dated 29.01.2011, issued by the Superintendent of Taxes (Recovery), Golaghat, appointment of the petitioner as Nazir in his office was cancelled as per direction of Addl. Commissioner of Taxes, Assam. Petitioner was released from service w.e.f. 29.01.2011. 8. At that stage, petitioner moved this Court by filing WP(C) No.1985/2011. This Court disposed of the writ petition vide order dated 11.09.2013 directing the respondents to examine the possibility of relaxing the rules towards accommodating the petitioner in the post to which he was appointed earlier as Nazir pursuant to his selection. 9. Thereafter, the second impugned order dated 30.12.2013 was passed by the Commissioner & Secretary of the Department. This Court disposed of the writ petition vide order dated 11.09.2013 directing the respondents to examine the possibility of relaxing the rules towards accommodating the petitioner in the post to which he was appointed earlier as Nazir pursuant to his selection. 9. Thereafter, the second impugned order dated 30.12.2013 was passed by the Commissioner & Secretary of the Department. It has been held that the post of Nazir is a promotional post and is to be filled up from amongst Upper Division Assistants having five years of satisfactory service. It cannot be filled up by way of direct recruitment; therefore it is not possible to relax the existing rules. 10. Aggrieved, petitioner has filed the present writ petition with the grievance as indicted above. 11. Learned counsel for the petitioner submits that petitioner has been unfairly treated by the respondents. Petitioner had responded to a public advertisement and following a selection held, he was selected and appointed. In the process, petitioner had relinquished his earlier job. Respondent No.1 has failed to appreciate the judgment of this Court in the correct perspective and clearly erred in not exercising the discretion vested on him by virtue of the power of relaxation available under Rule 15 of the Assam Ministerial District Establishment Service Rules, 1967 (1967 Rules). He also submits that cancellation of appointment of the petitioner without issuing any notice and without affording any opportunity of hearing is violative of the principles of natural justice and is therefore illegal. The same is as such liable to be interfered with. In support of his submission, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Shridhar v. Nagar Palika, Jaunpur & Ors., AIR 1990 SC 307 . 12. Mr. Chetia on the other hand, refers to the impugned orders and submits that in view of the requirement under the 1967 Rules, which provides for filling up of the post of Nazir by way of promotion, it was a mistake in going for direct recruitment and appointing the petitioner by the said method. Therefore, respondents rectified the anomalous situation created by the wrong step taken by cancelling the appointment, though respondents have full sympathy towards the petitioner. 13. Submissions made have been considered. 14. Facts are not in dispute. 15. Therefore, respondents rectified the anomalous situation created by the wrong step taken by cancelling the appointment, though respondents have full sympathy towards the petitioner. 13. Submissions made have been considered. 14. Facts are not in dispute. 15. To appreciate the rival submissions and to have a proper perspective, it would be apposite to refer to the order of this Court dated 11.09.2013 at the very outset. This Court while remanding the matter back to the respondents, had directed the respondents to examine the possibility of relaxing the rules towards accommodating the petitioner after noting that petitioner was put to an unenviable position because of the mistake committed by the respondents. The Court observed that the unfortunate situation was a creation of the respondents themselves. Relevant portion of the order dated 11.09.2013 reads as under: - "The fact of the matter is that the petitioner was appointed pursuant to the employment notice and was selected and he joined the post of Nazir resigning from his earlier post of Nazir under the SSA. He is presently jobless. It was only because of the mistake committed by the authority in the Finance (Taxation) Department the situation has arisen. If the position was made known to the petitioner, he was not responded to the employment notice, but unfortunately he offered candidature and thereafter on being selected also resigned from his earlier post of Nazir. This position has been creation of the respondents, more particularly the respondent No. 4. Mr. Rahman, learned counsel for the petitioner has drawn my attention to the letter dated 28.3.2011 addressed to the Joint Secretary to the Government of Assam in the Finance (Taxation) Department by the Commissioner of Taxes, Assam making a request to consider the case of the petitioner sympathetically for his appointment. Considering the matter in its entirety, this writ petition is disposed of directing the respondents to examine the possibility of relaxing the rules towards accommodating the petitioner in the post to which he was appointed earlier as Nazir pursuant to his selection as indicated above. Let the required exercise in this regard be carried out as expeditiously as possible, preferably by 31.12.2013." 16. Following the order of this Court, respondent No.1 passed the second impugned order dated 30.12.2013, relevant portion of which reads as under: - "1. Let the required exercise in this regard be carried out as expeditiously as possible, preferably by 31.12.2013." 16. Following the order of this Court, respondent No.1 passed the second impugned order dated 30.12.2013, relevant portion of which reads as under: - "1. The post of Nazir in the office of the Superintendent of Taxes, (Recovery) under this Department is to be filled up from Upper Division Assistant having at least 5 (five) years satisfactory services in the Establishments of the Superintendent of Taxes and Assistant Commissioner of Taxes as per guidelines issued by CT vide No. CE 15/74/243, dated 13.01.1988. As such, this post cannot be filled up by direct recruitment. Moreover, Syed Sazidur Rahman was not even in the Taxation Department. The appointment of Syed Sazidur Rahman was irregular. Prima facie this irregularity has been committed by the concerned appointing officer against whom action is being taken. 2. Syed Sazidur Rahman was working as Assistant Nazir, in the office of the District Mission Coordinator, Axom Sarba Siksha Abhiyan Mission, Golaghat on contractual basis prior to his appointment/joining as Nazir in the office of the Superintendent of Taxes (Recovery), Golaghat. Being a contractual appointee under Assam Sarba Siksha Abhiyan Mission, there is no suo-moto claim for further appointment by Syed Sazidur Rahman. As such, no relaxation of existing rules/procedure for appointment to the post of Nazir in the office of the Superintendent of Taxes, (Recovery), Golaghat can be considered. 3. As per Rule 6(a) of the Assam Ministerial District Establishment Service Rules, 1967, the post of Lower Division Assistant in the subordinate offices under the administrative control of Commissioner of Taxes, Assam is filled up by direct recruitment from the eligible candidates whose candidature is sought by open advertisement in the leading news papers & maintaining all reservation policies in force on the basis of a competitive examination. In view of the above, it will not be possible to relax the existing rules for appointment to accommodate the petitioner." 17. The stand of the Department as discernible from the above is that the post of Nazir is a promotional post to be filled up from amongst the Upper Division Assistants. It cannot be filled up by way of direct recruitment. Only the post of Lower Division Assistant is to be filled up by way of direct recruitment. Therefore, relaxation of the rules is not possible. It cannot be filled up by way of direct recruitment. Only the post of Lower Division Assistant is to be filled up by way of direct recruitment. Therefore, relaxation of the rules is not possible. It appears from the documents placed on record that the Govt. of Assam in the Finance (Taxation) Department had created 12 posts of Nazir to be posted in 12 districts as per post creation notification dated 13.01.1988. In the said notification, it was stated that the post of Nazir will be filled up from amongst Upper Division Assistants having at least 5 years satisfactory service in the grade. 18. 1967 Rules have been enacted to regulate the recruitment and conditions of service of persons appointed to the Assam Ministerial District Establishment Service. As per Rule 2(4), "District Establishment" has been defined to mean and include all non-gazetted ministerial staff in the offices of the Deputy Commissioner, Sub-Divisional Officers and Sub-Deputy Collectors of the district. In the note below sub-rule (4), it has been explained that offices of Deputy Commissioner and Sub-Divisional Officers shall include branches like Supply, Textile, Election, Revenue, Excise, Development and other general branches. 19. From the above, it prima facie appears that offices like Superintendent of Taxes (Recovery) at the district headquarters would fall within the ambit of the definition of "District Establishment" under Rule 2(4) of the 1967 Rules. 20. Rule 3 deals with service, which says that the Assam Ministerial District Establishment Service shall comprise of the categories of posts mentioned therein, such as, Upper Division Assistant (re-designated as Senior Assistant), including the posts of Sadar Nazir and Sub-Divisional Nazir. 21. Rule 6 deals with recruitment to the service. As per Rule 6(4), the posts of Upper Division Assistant, including Sadar Nazir and Sub-Divisional Nazir, are to be filled up by way of promotion on the basis of seniority-cum-merit from amongst Lower Division Assistants (re-designated as Junior Assistants) of the District Establishment who have rendered not less than 5 years of service as Junior Assistants. As per note below sub-rule (4), the posts of Upper Division Assistant (Senior Assistant), Sadar Nazir and Sub-Divisional Nazir are equivalent and interchangeable. However, the post of Nazir carries a special pay and shall be filled up by selection from amongst the Upper Division Assistants having at least 3 years of service as such. As per note below sub-rule (4), the posts of Upper Division Assistant (Senior Assistant), Sadar Nazir and Sub-Divisional Nazir are equivalent and interchangeable. However, the post of Nazir carries a special pay and shall be filled up by selection from amongst the Upper Division Assistants having at least 3 years of service as such. Under Rule 6 (5), which deals with the post of Lower Division Assistant (Junior Assistant), the said post is required to be filled up by way of direct recruitment to be conducted by the Deputy Commissioner. 22. Under Rule 15, where the appointing authority is satisfied that the operation of any of the rules may cause undue hardship in any particular case, it may dispense with or relax the requirement of that rule to such extent, and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner. 23. From a careful reading of the 1967 Rules, it appears that the post of Upper Division Assistant (Senior Assistant) is to be filled up by way of promotion from amongst Lower Division Assistants (Junior Assistants) of the District Establishment by following the criteria of seniority-cum-merit. Eligibility criteria prescribed is having 5 years of experience as Lower Division Assistant (Junior Assistant). On the other hand, post of Lower Division Assistant (Junior Assistant) is to be filled up by way of direct recruitment. 24. On the other hand, though the posts of Nazir and Upper Division Assistant are treated as equivalent and interchangeable, given the specific nature of the job of Nazir, a special pay is given and is filled up from amongst Upper Division Assistants having at least 3 years of experience as such. As stated above, the posts of Upper Division Assistant and Lower Division Assistant have since been re-designated as Senior Assistant and Junior Assistant. 25. Coming back to the power of relaxation as provided in Rule 15, it is a recognised principle in law that when discretion is vested with an authority, like the appointing authority in this case, to exercise such a power, the same is required to be exercised in a reasonable and fair manner to ensure that no undue hardship is caused in any particular case by operation of any of the rules. The object is to ensure that the case is dealt with in a just and fair manner. The object is to ensure that the case is dealt with in a just and fair manner. The use of the expression "equitable" in Rule 15 therefore, assumes critical significance. If equity demands requirement of a rule may be relaxed or may even be dispensed with. In this case, Rule 6 (4) provides for filling up of vacancy in the post of Nazir from amongst the Senior Assistants. According to the appointing authority, previous attempts made to fill up the post in such manner were not successful. In the interest of Govt. revenue, it was therefore deemed fit and proper to advertise the vacancy so as to fill up the same by way of direct recruitment as a onetime measure. In the selection held pursuant to the public advertisement, petitioner was selected and consequently appointed. After having appointed the petitioner, to cancel his appointment on the ground that the Rules do not provide for direct recruitment, that too, without any prior notice, in the opinion of the Court, would be totally inequitable, unfair and unjust. It is, in such circumstances that the observation of this Court in the previous order dated 11.09.2013 was required to be considered. Unfortunately, respondent No.1 did not consider the same in the correct perspective and failed to exercise the power of relaxation, which was available to him under Rule 15. Admittedly, operation of Rule 6(4), in this particular case, has resulted in undue hardship to the petitioner and the same is therefore required to be dispensed with or relaxed to accommodate the case of the petitioner. 26. Accordingly and in the light of the discussions made above, both the impugned orders dated 29.01.2011 and 30.12.2013 cannot be sustained and are hereby set aside and quashed. Petitioner's appointment as Nazir in the office of the Superintendent of Taxes (Recovery), Golaghat is restored. 27. Writ petition is allowed, but without any order as to costs.