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2017 DIGILAW 378 (GAU)

Kamal Mahanta v. State of Assam

2017-03-24

UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. K. Sarma, learned counsel for the petitioner, Mr. U.K. Nair, learned Standing Counsel, Gauhati High Court (GHC) and Mr. A.B. Choudhury, learned Senior Counsel, assisted by Mr. M.K. Sharma, learned counsel for respondent No. 5. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of appointment of respondent No. 5, in the post of Sheristadar in the establishment of District and Sessions Judge, Udalguri, vide order dated 08.05.2013, passed by the District and Sessions Judge, Udalguri and further seeks a direction to the respondents, more particularly, respondent No. 2 to appoint him in the post of Sheristadar in his establishment. 3. Facts of the case may be briefly noted. 4. Petitioner was initially appointed as Lower Division Assistant (LDA) in the office of Munsiff No. 1, Mangaldoi on 23.05.1984. Thereafter, he was promoted to the post of Upper Division Assistant (UDA) on 8.7.1992 and posted in the office of Munsiff, Udalguri. At that point of time, petitioner was asked to serve as Sheristadar. 5. Following creation of the new district of Udalguri, establishment of District and Sessions Judge, Udalguri was set up, but petitioner continued to serve in the office of Munsiff, Udalguri, as Sheristadar while maintaining his substantive post of Upper Division Assistant (UDA) in which post he was confirmed. By a subsequent order dated 21.12.2011, passed by the District and Sessions Judge, Udalguri (respondent No. 2), petitioner was directed to function as Sheristadar and Bench Assistant in the establishment of District and Sessions Judge, Udalguri. Thereafter, he was transferred to the establishment of District and Sessions Judge, Sonitpur, on 21.03.2012. Following his transfer, he continued to serve as Sheristadar in the Court of Munsiff at Tezpur, while holding the substantive post of Upper Division Assistant (UDA). 6. An advertisement dated 07.02.2013 was issued by respondent No. 2 to fill up the post of Upper Division Assistant (UDA)/Sheristadar in his establishment. Eligibility criteria mentioned was that the candidate should have served either as Sheristadar in the Court of Munsiff or Civil Judge or as Head Assistant under the establishment of District and Sessions Judge. It is stated that petitioner being eligible had responded to the said advertisement and appeared in the interview on 05.05.2013 along with respondent No. 5. Eligibility criteria mentioned was that the candidate should have served either as Sheristadar in the Court of Munsiff or Civil Judge or as Head Assistant under the establishment of District and Sessions Judge. It is stated that petitioner being eligible had responded to the said advertisement and appeared in the interview on 05.05.2013 along with respondent No. 5. According to the petitioner, respondent No. 5 had joined as LDA in the Court of Munsiff, Mangaldoi, in 1985, and, thereafter, promoted to the post of Upper Division Assistant (UDA) in 1993. He had no experience of serving as Sheristadar. However, respondent No. 2 issued appointment order dated 08.05.2013, appointing respondent No. 5 as Sheristadar in his establishment. 7. Aggrieved, present writ petition has been filed, seeking the reliefs as indicated above. 8. Main contention of the petitioner is that respondent No. 5 did not have the eligibility to be appointed as Sheristadar. Therefore, his appointment is illegal. On the other hand, petitioner had the eligibility. As such, overlooking of the case of the petitioner was not justified. 9. This Court by order dated 03.06.2013, had admitted the writ petition for hearing. 10. Respondent No. 2, in his affidavit, has referred to Rule 6(1) of the Assam District and Sessions Judges' Establishment (Ministerial) Service Rules, 1987 (1987 Rules, hereinafter) and has stated that both petitioner and respondent No. 5 did not have the eligibility to be appointed as Sheristadar. However, respondent No. 5 was found to be suitable for appointment. Accordingly, provision of Rule 16 of the 1987 Rules, which is the relaxation clause was invoked, whereafter, respondent No. 5 was appointed. Minutes of the interview proceedings held on 5.5.2013, has been annexed to the affidavit. 11. Respondent No. 5 in his affidavit has stated that he joined as Lower Division Assistant (LDA) in the office of Munsiff No. 1 at Mangaldoi on 1.9.1986, and, thereafter, as Upper Division Assistant since 2.1.2012, till his appointment as Sheristadar. He has also mentioned about various training programme attended by him and about his computer knowledge and skills. While admitting that petitioner was allowed to work as Sheristadar, firstly in the establishment of Munsiff, Udalguri and thereafter, in the establishment of District and Sessions Judge, Udalguri, he, however, stated that petitioner was transferred from Udalguri to Tezpur in view of certain allegations made against him and as such, his selection and appointment is justified. 12. While admitting that petitioner was allowed to work as Sheristadar, firstly in the establishment of Munsiff, Udalguri and thereafter, in the establishment of District and Sessions Judge, Udalguri, he, however, stated that petitioner was transferred from Udalguri to Tezpur in view of certain allegations made against him and as such, his selection and appointment is justified. 12. Submissions made by learned counsel for the parties have received the due consideration of the Court. 13. At the outset, relevant provisions of the 1987 Rules may be adverted to. The said Rules have been made by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Appointing authority under the 1987 Rules is the District and Sessions Judge, as per Rule 2(1). As per Rule 3, Assam District and Sessions Judges' Establishment (Ministerial) Service comprises of a number of posts including the post of Sheristadar of District and Sessions Judge. As per Rule 6(1) of the 1987 Rules, the post of Sheristadar is filled up by way of selection from amongst the persons, who have served continuously as Sheristadar of Additional District and Sessions Judge or as Head Assistant, in the establishment of District and Sessions Judge, at least for 5(five) years. As per Rule 16, where the appointing authority is satisfied that the operation of any of these 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. 14. Thus, from the above, it is evident that for appointment of Sheristadar in the establishment of District and Sessions Judge, one must have served continuously as Sheristadar of Additional District and Sessions Judge or as Head Assistant in the establishment of District and Sessions Judge at least for 5 (five) years. 15. Having noticed the above, from the affidavit of respondent No. 5, it is clear that he did not have the eligibility to be appointed as Sheristadar of District and Sessions Judge as he neither served as Sheristadar of Additional District and Sessions Judge or as Head Assistant in the establishment of District and Sessions Judge at any point of time, not to speak of minimum of 5 (five) years as per the statutory requirement. In fact, this position is admitted by respondent No. 2, wherein he stated that both petitioner and respondent No. 5 were ineligible for the post in question. In so far petitioner is concerned, it is stated that he was not appointed as Sheristadar in the office of Additional District and Sessions Judge, on regular basis, but as respondent No. 5 was found to be suitable, the power of relaxation under Rule 16 was invoked, whereafter, respondent No. 5 was appointed as Sheristadar on 08.05.2013. From a perusal of the interview minutes dated 05.05.2013, annexed to the affidavit of respondent No. 2, it is seen that only signature of respondent No. 2 is available as Chairman-cum-District Judge of Udalguri. Signature of no other member of the selection committee is discernible. What appears from the above is that only the District Judge conducted the interview and there were no other members. However, petitioner was awarded 7 marks and respondent No. 5 was awarded 9 marks. How and in what manner the marks were awarded were not disclosed; there were no guiding principles for award of marks. At the bottom, there is a brief note by the District Judge to the effect that respondent No. 5 may be considered for appointment as Sheristadar by invoking Rule 16 of the 1987 Rules. On a query by the Court, Mr. Nair, learned Standing Counsel submits that he has no other papers relating to the selection. The first thing to be noted is that the interview was conducted only by the District Judge, Udalguri. Secondly, even according to respondent No. 2, both the candidates, i.e., petitioner and respondent No. 5 were not eligible as per Rule 6 (1) of the 1987 Rules. Thirdly, there is a mere note of the Chairman-cum-District Judge (respondent No. 2) that respondent No. 5 may be appointed by invoking Rule 16. A careful analysis of Rule 16 would go to show that before invoking the power of relaxation as provided under the said provision, the appointing authority must arrive at a satisfaction that the operation of any of the Rules may cause undue hardship in any particular case, whereafter requirement of that particular Rule may be dispensed with or relaxed, which again would be to such extent and subject to such conditions as may be considered necessary to deal with a case in a just and equitable manner. 16. 16. From the minutes of the interview dated 05.05.2013, no such satisfaction of respondent No. 2 is discernible. That apart, whether the basic eligibility criteria can be relaxed or can be dispensed with altogether by invoking the power of relaxation is also highly debatable. In such circumstances, selection of respondent No. 5 and his consequential appointment appears to be contrary to the 1987 Rules and cannot be sustained. 17. Accordingly and in the light of the above, appointment order of respondent No. 5 as Sheristadar in the establishment of District and Sessions Judge, Udalguri, dated 8.5.2013, is set aside and quashed. Respondent No. 2 may hold the selection afresh. 18. Writ petition is allowed to the extent indicated above, but without any order as to costs.