Gauhati High Court
Lachit Barkakati vs The State Of Assam And 3 Ors on 23 April, 2021
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GAHC010069492021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/132/2021
LACHIT BARKAKATI
S/O- BHUPEN CHANDRA BARKAKATI, R/O- LAKHINAGAR, NAYANPUR,
JAPORIGOG, L-5 BYE LANE, H/NO. 16, GUWAHATI, DIST.- KAMRUP(M),
ASSAM, PIN- 781005.
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-
781006, ASSAM.
2:ASSAM HIGHER SECONDARY EDUCATION COUNCIL
REP. BY ITS CHAIRMAN
BAMUNIMAIDAN, GUWAHATI- 781021
ASSAM
3:THE SECRETARY
ASSAM HIGHER EDUCATION COUNCIL
BAMUNIMAIDAN
GUWAHATI- 781021, ASSAM
4:RANJAN KUMAR DAS
S/O- LATE JATINDRA MOHAN DAS
R/O- H/NO. 1
BRINDAVAN PATH
RUPNAGAR, GUWAHATI- 781032
DIST.- KAMRUP(M), ASSAM
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, EDU
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BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
23.04.2021
(Sudhanshu Dhulia, CJ)
The matter is taken up through video conferencing.
Heard Mr. K. N. Choudhury, learned senior counsel, appearing for the writ
appellant. Also heard Mr. T. C. Chutia, learned Additional Government Advocate,
Assam, appearing for respondent nos. 1, 2 and 3.
This writ appeal has been filed by the appellant against the judgment and order
dated 11.02.2021 passed by the learned Single Judge in WP(C) 5799/2020, which was
filed by one Sri Ranjan Kumar Das, i.e. respondent no. 4 in the present writ appeal.
The present writ appellant was the respondent no. 4 in the said writ petition.
The writ petitioner was working as the Deputy Secretary (Inspection) under the
Assam Higher Secondary Education Council (hereinafter referred to as "the Council"),
Assam. An advertisement dated 25.07.2019 was issued by the Council inviting
applications from eligible candidates for the post of Deputy Secretary (Registration,
Permission & Recognition). The case of the writ petitioner before the learned Single
Judge was that the aforesaid post of post of Deputy Secretary (Registration,
Permission & Recognition) had not been approved by the State Government and since
it did not have the approval of the Government, appointment could not be made to
the said post. Learned Single Judge was of the view that as appointment had not been
made to the aforesaid post on the date of consideration of the writ petition, the writ
petition [WP(C) 5799/2020] was held to be premature and, consequently, the writ
petition was dismissed vide order dated 11.02.2021. All the same, while dismissing the
writ petition, certain observations were made by the learned Single Judge, which are
as follows:
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"Needless to say that as the provisions of the said 1984 Act is very specific, if
the AHSEC fills up any such post on its own, not defined in the Regulation and
without the prior approval of the Government, the same will be non est in eye
of law."
Meanwhile, consequent to the aforesaid advertisement made by the Council, the
present writ appellant was selected for appointment to the post of Deputy Secretary
(Registration, Permission & Recognition). All the same, after dismissal of WP(C)
5799/2020, the writ petitioner, Sri Ranjan Kumar Das (i.e. the present respondent no.
4) filed another writ petition [WP(C 1645/2021) before this court challenging the
process of selection and appointment of the writ appellant to the post of Deputy
Secretary (Registration, Permission & Recognition) on the ground that no appointment
can be made to the aforesaid post without "prior approval" of the Government as the
court had already held in its order dated 11.02.2021, passed in WP(C) 5799/2020,
that without "prior approval" of the Government, such appointment will be non est in
the eye of law. This argument of the writ petitioner found favour with the learned
Single Judge and the learned Single Judge was of the view that since there was
already an order passed by this court in WP(C) 5799/2020 to the effect that the post
will be non est in the eye of law, no appointment can be made against such post.
Accordingly, by an order dated 17.03.2021, the order of appointment of the writ
appellant [respondent no. 4 in WP(C) 1645/2021] was kept in abeyance by the
learned Single Judge until approval was granted by the Government. The relevant
portion of the order of the learned Single Judge dated 17.03.2021, passed in WP(C)
1645/2021 reads as under:
"We have to accept that if the post is a non-est, no appointment can also
be made against such post.
In view of the prima facie case being made out by the petitioner, the
balance of convenience and the irreparable loss that the petitioner may suffer,
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the order of appointment of respondent no. 4 is kept in abeyance till such time
any approval is granted by the government."
This aforesaid interim order, however, has not been put to challenge in the
present writ appeal, what is under challenge is the earlier order of the learned Single
Judge passed in WP(C) 5799/2020. In this appeal, the case of the writ appellant
before this court is that the statute governing the appointment of officers of the
Council does not prescribe obtaining of "prior approval" of the Government for making
appointment. Mr. K. N. Choudhury, learned Senior counsel has drawn attention of this
court in this regard to Section 12 of the Assam Higher Secondary Education Act, 1984
(hereinafter referred to as "the Act"), which reads as under:
12. (1) The following shall be the officers of the Council.
(i) The Chairman,
(ii) The Secretary,
(iii) The Controller of Examinations,
(iv) The Deputy Secretary (Academic),
(v) The Deputy Secretary (Administration).
(2) The Council may appoint such other officers and employees as it may
considers necessary for the efficient discharge of its functions under this Act on
such terms and conditions as be determined by regulations made by the Council
subject to the approval of the Government."
The emphasis of the learned senior counsel for the appellant is on the words
"subject to the approval of the Government" appearing in sub-section (2) of Section
12 of the Act. Learned senior counsel Mr. Choudhury would argue that an approval can
always be pre-decision as well as post-decision. He argues that the aforesaid statute
does not require the council to take "prior approval" of the Government for
appointment of its officers, but it speaks only about "approval" and approval can also
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be taken subsequently, i.e. subsequent to the appointment. Had the statute
specifically provided for obtaining "prior approval", the matter would have been
different. He would, therefore, argue that the learned Single Judge in WP(C)
5799/2020 was of the view that "prior approval" is required and, that is why, he was
of the opinion that the post will be non est in law without the "prior approval" of the
Government, which is not the case here since the statute only speaks of "approval".
We find that there is substance in the argument advanced by the learned senior
counsel for the writ appellant. Mr. T. C. Chutia, learned counsel for the State also
submits that the registration of Deputy Secretary is urgent.
Issue notice to the respondents, returnable on 02.06.2021.
No formal steps for service of notice upon respondent nos. 1, 2 and 3 are
required to be taken as they are represented by Mr. T. C. Chutia, learned Additional
Government Advocate, Assam.
Steps for service of notice upon respondent no. 4 be taken within one week.
We make it clear that the observation of the learned Single Judge, that is,
"Needless to say that as the provisions of the said 1984 Act is very specific, if the
AHSEC fills up any such post on its own, not defined in the Regulation and without the
prior approval of the Government, the same will be non est in eye of law.", made in
the order dated 11.02.2021 passed in WP(C) 5799/2020, shall not be acted upon until
further order of this court.
JUDGE CHIEF JUSTICE
Comparing Assistant
