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Gauhati High Court · body

2016 DIGILAW 114 (GAU)

Jyotish Kuli v. State of Assam

2016-02-18

A.K.GOSWAMI

body2016
JUDGMENT : Heard Mr. M. Sarania, learned counsel for the petitioners. Also heard Mr. B.J. Ghosh, learned State Counsel appearing for Respondent Nos.1 to 4 and Mr. P.P. Dutta, learned counsel appearing or Respondent Nos.5 and 6. 2. At the very outset, Mr. B.J. Ghosh and Mr. P.P. Dutta have submitted that the issues raised in the writ petition is squarely covered by the judgment and order dated 18.01.2016 passed by this Court in WP(C) No.170/2015 and 3 other writ petitions. Mr. Sarania, on the other hand, submits that it is not so. 3. While issuing notice of motion, returnable on 03.08.2015, this Court had passed an interim order suspending the notification dated 19.05.2015, impugned in the writ petition, so far as it related to the petitioners. 4. As agreed to by the learned counsel for the parties, the writ petition is taken up for disposal at the admission stage. 5. The case of the petitioners is that they belong to Scheduled Tribe Plains community. By a notification dated 25.07.2011 (Annexure-I), the first petitioner was nominated as Chairman of Integrated Tribal Development Project (ITDP) Committee, Dhakuakhana. Similarly, the second petitioner was nominated as Chairman of ITDP Committee, Lakhimpur by a notification dated 26.08.2011 (Annexure-II). It is pleaded that the ITDP committees are constituted for the purpose of upliftment of Scheduled Tribe communities of the respective Sub-Divisions and to utilize the grants-in-aid under Article 275(1) of the Constitution of India provided by the Central Government. 6. The petitioners have put to challenge a notification dated 19.05.2015 [(Annexure-19(A)] dissolving the Project Implementation Committee (PIC), ITDP/Sub-Divisional S.T. Development Board completing 3 (three) years with immediate effect from the date of notification. The said notification was issued in pursuance of a notification dated 12.09.2014. The notification dated 19.05.2015 reads as follows: “GOVERNMENT OF ASSAM DEPARTMENT FOR WELFARE OF PLAIN TRIBES & BACKWARD CLASSES DISPUR ::: GUWAHATI ORDERS BY THE GOVERNOR NOTIFICATION Dated Dispur, the 19th May, 2015 No.TAD/BC/440/2013/45: In pursuance to Notification No.TAD/BC/440/2013, dated 12-09-2014, all PIC ITDP/Sub-Divisional ST Development Board completing 3(three) years with immediate effect from the date of notification stands dissolved subject to compliance of the orders of Hon’ble Gauhati High Court. Sd/- P.K. Hazoari, ACS Secretary to the Govt. of Assam WPT & BC Department, Dispur” 7. Sd/- P.K. Hazoari, ACS Secretary to the Govt. of Assam WPT & BC Department, Dispur” 7. It is pleaded that in the notifications nominating the petitioners as Chairman, no tenure was specified, but it was common practice to allow such ITDPs to function for a period of 5(five) years, in general, unless, there were special circumstances to dissolve such committees. After the constitution of ITDP of the petitioners, a notification dated 20.02.2014 was issued laying down guidelines relating to constitution of SC/ST/OBC Development Boards providing, amongst others, constitution and function of the Development Board. It is also provided therein that term of the office of the Board shall not exceed 5(five) years, which is to be reckoned from the date of notification constituting the Board. 8. Mr. Sarania has submitted that there is distinguishable feature in the case presented by the petitioners and therefore, this case is not covered by the judgment and order dated 18.01.2016 passed in WP(C) No.170/2015. It is submitted by him that no subsequent notification was issued dissolving the Board in terms of the notification dated 19.05.2015 and by a general notification, a Board cannot be dissolved. That apart, there is no such notification as referred to in the said notification dated 19.05.2015, on the strength of which, the Board completing 3(three) years stood dissolved, he submits. 9. Learned counsel for the respondents point out that there are no distinguishable features as submitted by Mr. Sarania and the judgment and order dated 18.01.2016 passed in WP(C) No.170/2015 is squarely applicable to the facts and circumstances. 10. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 11. Having noticed the facts projected in the writ petition and bearing in mind the controversy as to whether the order dated 18.01.2016 passed in WP(C) No.170/2015 is applicable to the instant case, this Court must first undertake an exercise to find out that aspect of the matter. 12. A perusal of the aforesaid judgment goes to show that the petitioners in the said cases were also appointed in the year 2011 like the present petitioners. In such notifications also there was no tenure fixed as in the case of the present petitioners. 12. A perusal of the aforesaid judgment goes to show that the petitioners in the said cases were also appointed in the year 2011 like the present petitioners. In such notifications also there was no tenure fixed as in the case of the present petitioners. It is also not in dispute that petitioners in the present case and the writ petitioners in the decided cases were nominated by the Government as Chairman of the ITDPs. 13. A question was posed in the said judgment as to whether the petitioners therein can claim continuation in the respective offices for a fixed tenure of 5(five) years on the strength of the notification dated 20.02.2014, which came much later in point of time. This Court observed as follows:- “16. It is in the aforesaid fact-situation, the issue involved for decision is as to whether the petitioners can claim continuation in the respective offices for a fixed tenure of 5 (five) years and for that matter whether the respective board will continue to operate for a full term of five years on the basis of its earlier constitution with the members who were nominated to the respective board. As noted above, when the petitioners were nominated as Chairman and for that matter, the boards were constituted, no specific term of office was indicated but the Chairman and Members were nominated not on the basis of any selection but on the basis of any recommendation of the Government without any process of selection. In this context, the learned counsel for the respondents have emphasized on the Doctrine of Pleasure. 20. As noted above in none of the notifications constituting the board and appointing the petitioners as Chairman any fixed tenure was specified. It was only on 20/02/2014, the Government issued guidelines regarding constitution and functioning of the boards. The qualifications/disqualifications and the method of selection etc. were also laid down. As regards the tenure of office, for the first time, it was laid down that the same shall not exceed five years, meaning thereby that the same could less than 5(five) years also. By bringing the modification vide Annexue-3 notification dated 12/09/2014, the term of office of the board was specified to be not exceeding 3 (three) years. As regards the tenure of office, for the first time, it was laid down that the same shall not exceed five years, meaning thereby that the same could less than 5(five) years also. By bringing the modification vide Annexue-3 notification dated 12/09/2014, the term of office of the board was specified to be not exceeding 3 (three) years. As in the case of 5 (five) years in the case of 3 (three) years also, having regard to the specification “not to exceed”, coupled with the nature of selection and appointment, it cannot be said that the petitioners are entitled to hold office for a fixed tenure of five years. As per their own showing, no such fixed tenure was available for any boards and for that matter in all the boards. 21. Above apart, the petitioners are also not occupying any selection post. The post they had held are purely in the domain of the Doctrine of Pleasure and not otherwise. In the notifications constituting the respective board and nominating the members, it was never specified that their term of office would be for five years. For the first time in 2014, two notifications, referred to above, were issued laying down the guidelines towards constituting the board and selecting the members. In these two notifications also, no fixed tenure has been prescribed. What has been said is that the term of office shall not exceed 5 (five) years (now three years). Pursuant to such notifications, all the boards have been dissolved and reconstituted. 22. Another point urged by the petitioners is that the private respondents were not appointed as per the requirement of the guidelines. In the counter affidavit filed by the respondents, it is their specific case that they were recommended by the concerned Minister. It being within the domain of the Government to appoint and re-appoint members and also to constitute and reconstitute the board, I am of the considered opinion that the issue raised in this writ petition cannot be viewed within the principles of judicial review exercising writ jurisdiction.” 14. The core issue as to whether the petitioners have any right to continue for a period of 5(five) years had been negated. This Court in paragraph 15 in the decided case also took note of the notification dated 19.05.2015 dissolving all the Boards completing the term of three years. The core issue as to whether the petitioners have any right to continue for a period of 5(five) years had been negated. This Court in paragraph 15 in the decided case also took note of the notification dated 19.05.2015 dissolving all the Boards completing the term of three years. Therefore, in view of the above, the submission of Mr. Sarania that no individual notification had been issued dissolving the ITDPs has no merit. This Court does not find any distinguishable feature in the case projected by the petitioners and the case of the writ petitioners in WP(C) No.170/2015. It is also relevant to notice that on being pointed out by Mr. Sarania that an interim order was passed on 08.01.2015 in WP(C) No.6958/2014, wherein also the question of dissolution of PIC/ITDP/Sub-Divisional ST Development Board is involved, an interim order was passed in this case on 17.06.2015. WP(C) No.6958/2014 had since been dismissed by the order dated 18.01.2016. 15. Before parting with the records, this Court must deal with another contention of Mr. Sarania relating to notification with No.TAD/BC/440/2013. There is a notification dated 12.09.2014 which is numbered as notification No. TAD/BC/440/2013/13 dated 12.09.2014 (Annexure-V). In this notification, as has been referred to earlier, in Sl. No.IV it was laid down that the term of the office of the Board shall not exceed 3(three) years. 16. It appears that notification 19.05.2015 was issued with reference to the said notification No.TAD/BC/440/2013 dated 12.09.2014, but while quoting the notification No., the portion of the notification “/13” appears to have been inadvertently dropped. The same cannot tilt the scales in favour of the writ petitioners when there is no denying of the fact of existence of a notification specifying that term of the Board shall not exceed there years. 17. In view of the above, I find no merit in the writ petition and the same is accordingly dismissed. No cost. 18. Interim order shall stand vacated.