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2017 DIGILAW 1395 (GAU)

Mainul Haque Khan v. State of Assam

2017-10-31

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. M.U. Ahmed, learned counsel for the petitioners and also heard Dr. B. Ahmed, learned standing counsel for the Co-operation Department. 2. The petitioners, who are graduates from various recognized Universities, claimed that they are duly qualified to be appointed as Junior Inspectors of Co-operative Societies in the Co-operation Department of the Government of Assam. Accordingly, the petitioners having the knowledge about the existence of certain vacancies for the post of Junior Inspectors in the Department of Co-operation, Government of Assam, had applied to the Registrar of Co-operative Societies for appointment as such. The Registrar of Co-operative Societies processed the applications of the petitioners and upon obtaining the sanction of the SLPC, had appointed the petitioners as Junior Inspectors of Co-operative Societies. 3. It is stated by Dr. B. Ahmed, learned standing counsel for Co-Operation Department as well as it can be found out from the record that the appointments were issued in favour of the petitioners on 28.2.2005, which was in fact, the last day in office of the then Registrar of Co-operative Societies, Assam. 4. Having realized the illegalities committed by the then Registrar, the respondent-authorities through various communications and WT messages, had prevented the petitioners from joining in their respective positions. Apart from the petitioners, several other persons had also been appointed by similar orders of 28.2.2005. The said issue came before this court in another writ petition being WP(C) No. 2072/2005, wherein certain directions were sought for appointing the petitioners pursuant to such appointment letters. This court after hearing all the parties including the petitioners therein and the respondent-Departments and also upon perusal of the records, came to the conclusion that the appointments were made de hors the recruitment rules on the last day of demitting office by the then Registrar of Co-operative Societies and secondly, the appointments were made without their being any selection or advertisement and the pick and choose method was adopted. In the said writ petition, another stand was taken by the petitioners therein that the appointments were made pursuant to orders of this court. Accordingly, the orders so referred was considered and it was found that by the order of 25.2.2005 in WP(C) No. 1511/2005, it was merely provided that the respondent-authorities shall consider the case of the petitioners for appointments and there was no further finding or direction therein to appoint. 5. Accordingly, the orders so referred was considered and it was found that by the order of 25.2.2005 in WP(C) No. 1511/2005, it was merely provided that the respondent-authorities shall consider the case of the petitioners for appointments and there was no further finding or direction therein to appoint. 5. In view of this court, the earlier order dated 25.2.2005 in WP(C) No. 1511/2005 was not an order directing appointment. Secondly, it was also recorded by this court in the earlier order that although the prior order of this court was dated 25.2.2005, but 26.2.2005 and 27.2.2005 were holidays being the 4th Saturday and Sunday respectively, the appointment orders were issued in a hasty manner on 28.2.2005. The aforesaid act was also considered to be an aspect, which indicates arbitrariness in the manner in which the appointment orders were issued. In the aforesaid factual background, the petitioners in this writ petition assails the order dated 16.3.2011 of the Registrar of Co-operative Societies, Assam. 6. By the said order, certain representations made by the petitioners were given a consideration. In the order, the Registrar of Co-operative Societies arrived at a conclusion that the appointments made in favour of the petitioners were fake and clandestine appointments, which were made by the earlier Registrar of Co-operative Societies on the last day of his retirement. It was also recorded in the said order that the appointments were made by the then Registrar without following the procedure established by law. 7. The petitioners in this writ petition when being asked about the procedure adopted in making the appointment could not give an appropriate answer to justify that the appointments were made by following the due procedure of law. In fact, it is an admitted position of the petitioners in paragraph 3 of the writ petition that they had applied to the Registrar of Co-operative Societies for such appointments upon having coming to know as regards the existence of vacancies. 8. As held by the hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 , an appointment on the basis of an application without following the constitutional scheme would be arbitrary and illegal, which cannot be relied upon for making any such appointment. 9. 8. As held by the hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1 , an appointment on the basis of an application without following the constitutional scheme would be arbitrary and illegal, which cannot be relied upon for making any such appointment. 9. In such view of the matter, as regards the categorical findings of the Registrar of Co-operative Societies as well as that of this court in its earlier judgment that the appointments are fake and not tenable in law and further in view of the admitted position of the petitioners that the appointments were made on a mere application without following the constitutional scheme, this court is of the view that no interference is required in the order dated 16.3.2011 of the Registrar of Co-operative Societies. As the order rejecting their appointments has been upheld, the further prayer of the petitioner seeking a direction for their appointment also cannot be made. 10. In view of the above, this court finds the writ petition to be devoid of any merit and accordingly, the same stands dismissed. However, no order as to costs.