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2015 DIGILAW 802 (GAU)

Ratul Barman & Anr. v. State of Assam and Ors.

2015-06-23

MANOJIT BHUYAN

body2015
1. Heard Mr. M.U. Mondal, learned counsel for the petitioners as well as Mr. A.K. Bhuyan, learned counsel representing the BTC authorities. Also heard Mr. B. Gogoi, learned counsel representing the Finance Department as well as Mr. N. Upadhay representing Animal Husbandry & Veterinary Department. 2. The subject matter in all the four writ petitions, i.e. WP(C) 3357/2014, WP(C) 2413/2014, WP(C) 3323/2014 and WP(C) 7521/2013 being similar, the same are taken-up together for final disposal. 3. By Employment Notice / Advertisement dated 13.11.2009 issued by the Central Selection Board, Bodoland Territorial Council, Kokrajhar, applications were invited for 48 numbers of vacant posts of Veterinary Filed Assistant (VFA)/Stockman(SM) under the Department of Animal Husbandry, BTC, Kokrajhar, amongst others. Besides indicating the number of vacant posts as 48, the criteria with regard to age was stipulated to a maximum of 36 years as on 01.01.2009. The petitioners in all the four writ petitions responded to the said advertisement and being found eligible had also undergone the selection process. 4. A Select List of candidates for the post of VFA was published on 23.11.2010 showing names of 48 persons corresponding to the number of posts advertised. In the said Select List the names of the petitioners figured at Serial Nos. 45 (Bhupen Chandra Medhi), 46 (Amir Hussain), 47 (Ratul Barman) and 48 (Amarendra Choudhury). The said Select List was acted upon to give appointments to 42 candidates as per merit position. The petitioners being aggrieved had earlier instituted WP(C) 5946/2011 filed by the present petitioners in WP(C) 3357/2014 and another case being WP(C) 6036/2011 filed by the present petitioners in WP(C) 2413/2014, WP(C) 3323/2014 respectively. 5. The aforesaid two writ petitions were heard and disposed of by Order dated 21.05.2013. In the said proceedings the Court took note of the stand of the respondents that although the advertisement was with regard to filling-up 48 numbers of posts, however, appointments could be offered to only 42 candidates from the Select List in view of the fact that the Finance (SIU) Department, Government of Assam had only approved filling-up of only 42 Nos. of posts of VFA in the BTDA area. The BTC authorities had issued the advertisement showing 48 available vacancies well before receiving approval from the Finance Department. Accordingly, altogether 42 Nos. of posts were filled-up. Two candidates from the select list did not join and the candidates at Sl. Nos. of posts of VFA in the BTDA area. The BTC authorities had issued the advertisement showing 48 available vacancies well before receiving approval from the Finance Department. Accordingly, altogether 42 Nos. of posts were filled-up. Two candidates from the select list did not join and the candidates at Sl. Nos. 43 & 44 were brought in to make-up the list of appointments to 42 numbers. By the said Order of this Court dated 21.05.2013 a direction was made to the respondents to consider the appointment of the petitioners involved in WP(C) 5946/2011 and WP(C) 6036/2011 as expeditiously as possible preferably within 31st of July, 2013. 6. In pursuance of the Court's Order dated 21.05.2013 an Order was passed on 21.08.2013 under the hand of the Joint Secretary, Bodoland Territorial Council, Kokrajhar rejecting the claim of the petitioners for appointment as VFA. The grounds assigned is that having regard to the approval given by the Finance (SIU) Department only in respect of filling-up of 42 numbers of posts of VFA, as such, the BTC is not possessed with the power to make appointment beyond 42 numbers. Further stand of the authority is that all the petitioners had crossed the upper age limit of 36 years as on 31.07.2013 and therefore any consideration would go to violate Government recruitment conditions. Also, the validity period of the Select List had already expired and the list has become defunct in the eye of law and, as such, the question of making appointment form the list does not arise at all. Eventually, the authority had rejected the claim of the petitioners and also observed that the Select List containing the names of the remaining four candidates stands cancelled. This Order of 29.08.2013 is assailed in the present proceedings. 7. The Order so assailed has to be tested with the directions of this Court dated 21.05.2013 passed in WP(C) 5946/2011 and WP(C) 6036/2011. The direction was for considering the appointment of the petitioners as expeditiously as possible preferably within 31st of July, 2013. However, the Order dated 29.08.2013 do not go to indicate of having been passed in terms of the directions of this Court. There is no manner of doubt that the BTC Authority is without power to make any appointments beyond 42 numbers of posts of VFA on ground that the Finance (SIU) Department had only granted approval for 42 posts. However, the Order dated 29.08.2013 do not go to indicate of having been passed in terms of the directions of this Court. There is no manner of doubt that the BTC Authority is without power to make any appointments beyond 42 numbers of posts of VFA on ground that the Finance (SIU) Department had only granted approval for 42 posts. At the same time it would be worthwhile to mention that in the advertisement issued by BTC Authority the available numbers of vacancies were shown as 48 although only 42 found approval of the Finance (SIU) Department. Since appointment had been made only on the basis of the approval granted by the Finance (SIU) Department, the reasonable exercise that the BTC Authority should have undertaken pursuant to direction of this Court dated 21.05.2013 was to move the Finance Department for approval in respect of considering the case of the petitioners by showing reverence to the direction of this Court. What actually followed and as apparent from the Order dated 29.08.2013 is an outright rejection of the claim of the petitioners on grounds that the BTC is without authority to make any appointment without approval, that the petitioners are over aged as on 31.07.2013 and that the list had expired and has become defunct. 8. The said observation and decision arrived at in the Order dated 29.08.2013 is not in tandem with the directions of this Court dated 21.05.2013. For whatever eventualities, the direction of this Court dated 21.05.2013 must reach its logical conclusion, but certainly not in terms of the exercise undertaken and as apparent from the Order dated 29.08.2013. 9. In view of the above, all the four writ petitions stands disposed of with a direction to the Bodoland Territorial Council in the Department of Animal Husbandry & Veterinary to take steps forthwith for moving the Finance Department, Government of Assam through proper channel for seeking consideration of approval in respect of accommodating the petitioners against available vacancies in terms of the directions contained in the Order dated 21.05.2013 passed in WP(C) 5946/2011 and WP(C) 6036/2011. The said exercise for moving the Finance Department shall be undertaken by the BTC Authority, as indicated above, within a period of 3 weeks from today and the Finance Department in its turn shall take a final decision within 3 weeks from the date of receiving the proposal from the BTC Authority through proper channel. 10. In view of the above, all the four writ petitions stands disposed of. 11. A copy of this order be furnished to Mr. A.K. Bhuyan and Mr. B. Gogoi within 2 days.