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2017 DIGILAW 1280 (GAU)

Gollo Tachang v. State of Arunachal Pradesh

2017-09-13

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : 1. Heard Mr. Khoda Tama, learned counsel for the petitioner. Also heard Mr. Tagum Jamoh, learned standing counsel, Education Department, Government of Arunachal Pradesh, as well as Mr. Dugmar Kamduk, learned counsel for private respondent No. 5. 2. Both the petitioner, herein, and private respondent No. 5, are presently serving as Block Education Officer (BEO), Papum Pare District, under the Education Department. 3. It is stated that petitioner was appointed as Block Education Officer (BEO) in the year 2008 whereas private respondent No. 5 was so appointed in the year 2009. Accordingly, the petitioner claims that he is the senior-most BEO of Papum Pare District. Be that as it may, the respondent-authorities were required to appoint one of the eligible Block Education Officer (BEO) to the post of District Project Coordinator under the Sarva Siksha Abhiyan in the Education Department, Government of Arunachal Pradesh. It is stated that the post of District Programme Coordinator (SSA) has some higher benefits and higher status in comparison to the post of Block Education Officer (BEO). Accordingly, it is the case of the petitioner that for the purpose of appointment to the post of District Programme Coordinator (SSA), all the eligible BEOs are entitled to be considered for the same. Although there is no specific service rules which provide for a procedure for appointment to the post of District Programme Coordinator (SSA), but, be that as it may, under general service law, a procedure which would be fair and transparent giving equal right to all, should be followed for such appointment. Merely, because the service rules do not provide for a particular procedure, it, by itself, cannot be construed to mean that no procedure satisfying the requisites of article 14 of the Constitution of India, is required to be adopted for the purpose. 4. It is further stated in the writ petition that although the petitioner had made an application, dated 2.11.2016, requesting the appropriate authority, to consider his case, for the purpose of such appointment to the post of District Programme Coordinator (SSA) but the same has not been given its due consideration. On the other hand, the respondent-authorities had adopted a procedure whereby the private respondent No. 5 had been appointed as the District Programme Coordinator (SSA) on the recommendation of MLA-cum-ex-Chief Minister. On the other hand, the respondent-authorities had adopted a procedure whereby the private respondent No. 5 had been appointed as the District Programme Coordinator (SSA) on the recommendation of MLA-cum-ex-Chief Minister. The said statement has been made in Paragraph No. 19 of the petition and it is stated that the said MLA has no role to play in the appointment to such public post and as such, the appointment of respondent No. 5 is illegal, per se. To substantiate the same, the petitioner has annexed the Note Sheet which was provided to him under the RTI Act, and the same goes to indicate the procedure adopted for the purpose of appointment of private respondent No. 5 to the post of District Programme Coordinator (SSA). From the said Note Sheet, it is seen that there is a forwarding note dated 20.9.2016, whereby a proposal had been made for appointing the private respondent No. 5 as the District Programme Coordinator (SSA). Subsequently, the Note Sheet was forwarded to the Secretary (Education), Government of Arunachal Pradesh, who had, again, through an endorsement, forwarded the same to the Minister concerned, for a decision. Thereafter, the Minister concerned mode an endorsement “Approved. Please issue order.” It is further seen that the order of the Minister concerned as well as the departmental Secretary, are all, dated, 20.09.2016, which is indicative that the entire procedure relating to the appointment of private respondent No. 5 to the post of District Programme Coordinator (SSA) was made, on the same day. It is, therefore, clear that the appointment of private respondent No. 5 to the post of District Programme Coordinator (SSA) has been made in pursuant to such procedure being adopted by the respondent-authorities. 5. On the prima facie reading of the Note Sheet, in question, it is observed that the procedure adopted by the respondent-authorities, is that, apart from the private respondent No. 5, no other candidate has been considered for appointment to the post of District Programme Coordinator (SSA) although it has been the admitted position that there are sufficient numbers of eligible BEOs in Papum Pare District, but, none of them, has been considered for the same. 6. On the other hand, Mr. 6. On the other hand, Mr. Kamduk, learned counsel for private respondent No. 5, had submitted that both the private respondent No. 5 and the writ petitioner, are serving as BEOs and, therefore, it is the prerogative of the authority concerned to appoint any one of them, as the District Programme Coordinator (SSA), Papum Pare District. The other submission of Mr. Kamduk, learned counsel is that the private respondent no. 5 had been functioning as District Programme Coordinator (SSA) for about a year, therefore, at this stage, it is inequitable to remove him from the said post. 7. The foregoing submissions of Mr. Kamduk, learned counsel, are found to be unacceptable for the reasons that for appointment of respondent No. 5 as the District Programme Coordinator (SSA); the provisions of article 14 of the Constitution of India has to be satisfied and the procedure followed by the authorities to appoint a candidate of their own choice, without considering others, would not satisfy the inherent requirement of article 14. Consequently, mere functioning as District Programme Coordinator (DPC) by the private respondent No. 5, for a year or so, does not entitle him to continue in the said public post as his appointment to such post, has failed to fulfill the basic requirements of article 14 of the Constitution of India. 8. In such view of the matter, this court is of the view that the procedure adopted by the respondent-authorities to appoint private respondent No. 5 to the post of District Programme Coordinator (SSA), Papum Pare District, is in violation of the provisions of article 14 of the Constitution of India, inasmuch as the right to equality, has been violated. As already held, although the service rules may not provide the procedure for making appointment to such post, which has some higher benefits than what is provided to the incumbents in the feeder post for such appointment; but, a procedure which will give equal opportunity to all eligible incumbents, should be followed by the respondent-authorities in making appointment to such public post. Any procedure which excludes the consideration of any other similarly situated and eligible candidates, would not satisfy the requirement of the provisions of article 14 of the Constitution of India. 9. Any procedure which excludes the consideration of any other similarly situated and eligible candidates, would not satisfy the requirement of the provisions of article 14 of the Constitution of India. 9. Considering the matter in its entirety; this court is of the view that the procedure so adopted to appoint private respondent No. 5 to the post of District Programme Coordinator (SSA), vide order, dated 23.09.2016, is unsustainable in the eye of law. Accordingly, it is hereby directed that the respondent-authorities shall initiate a fresh process for making appointment to the post of District Programme Coordinator (SSA) for Papum Pare District, by taking into consideration the claims of such eligible candidates who may be qualified for such appointment. While undertaking the aforesaid exercise, the authority concerned shall consider all such eligible candidates and give reasons, in writing, either, for their selection, or, for their rejection. The said process be initiated and brought to a logical conclusion within a period of 3 months from today. Till such exercise is made in this manner as indicated above, if it is found that the respondent No. 5 is holding the post of District Programme Coordinator (SSA), Papum Pare District, he shall continue to do so. If in case, the said exercise is not completed by the respondent-authorities within the stipulated 3(three) months from today; then, with effect from 15th of December, 2017, the private respondent No. 5 Sri Giogi Paih shall not continue to hold the post of the District Programme Coordinator (SSA), Papum Pare District, meaning thereby that he shall not be the District Programme Coordinator (SSA), Papum Pare District, w.e.f. 15.12.2017. If, on the other hand, the exercise is completed, the final decision thereof shall prevail over all other earlier orders. 10. With the above directions, this writ petition stands disposed of. No costs. 11. This writ petition having been allowed; the connected interlocutory application, viz. IA (WP) No. 29 (AP)/2017, filed by the petitioner, seeking stay of the impugned appointment order, dated 23.09.2016; has become infructuous and the same accordingly stands disposed of.