Biswa Kumar Baruah vs State Of Assam And 3 Ors
2021 Latest Caselaw 2009 Gua

                                                                Page No.# 1/9

GAHC010134792021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/4280/2021

         BISWA KUMAR BARUAH
         S/O LATE RAM KUMAR BARUAH, P/R/A REGENT PARADISE, BHETAPARA
         CHARIALI, FLAT NO 1 C, 6TH FLOOR, HATIGAON, GUWAHATI, KAMRUP
         (M), ASSAM, PIN-781023



         VERSUS

         STATE OF ASSAM AND 3 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT,
         H-BLOCK, 2ND FLOOR, JANATA BHAWAN, DISPUR, GUWAHATI-781006,
         KAMRUP(M), ASSAM

         2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
          ENVIRONMNET AND FORESTS DEPARTMENT
          H-BLOCK
          2ND FLOOR
          JANATA BHAWAN
          DISPUR
          GUWAHATI-781006
          KAMRUP(M)
         ASSAM
          PIN-781006

         3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM
          ENVIRONMENT AND FOREST DEPARTMENT
          H-BLOCK
          2ND FLOOR
          JANATA BHAWAN
          DISPUR
          GUWAHATI
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             KAMRUP(M)
             ASSAM
             PIN-781006

            4:ARVIND MADHAV SINGH
             EX INDIAN FOREST SERVICE
             DONA PLANET
             B 116 7TH FLOOR
            VIP SIXMILE
             GUWAHATI
             KAMRUP(M)
            ASSAM
             PIN-78102

Advocate for the Petitioner   : MR H BEZBARUA

Advocate for the Respondent : SC, FOREST




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 31.08.2021

Heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. P.N. Goswami, learned Additional Advocate General for the State assisted by Mr. D. Gogoi, learned standing counsel for the Forest Department appearing for respondent nos.1, 2 and 3.

2. In brief, the case of the petitioner is that he had joined service in the Pollution Control Board, Assam (PCBA for short) as an Assistant Engineer in the year 1984. He had held the post of Chief Environmental Engineer from 30.01.2014 to 31.03.2019 and that had also held the post of Member Secretary of the PCBA from 02.06.2014 to 31.03.2019. The petitioner had superannuated from service on 31.03.2019 on attaining the age of 60 years and that now he is about 62 years of age and that he is currently holding the post of In-Charge Page No.# 3/9

Chairman of PCBA.

3. An employment advertisement was published in the newspapers on 10.07.2021, inter alia, to fill up the vacant post of Chairman wherein it was prescribed that the age limit for appointment to the post of Chairman shall not be exceeding 62 (sixty two) years as on the closing date of the receipt of applications. It was also prescribed that the Chairman shall have a fixed tenure of 3 (three) years not extendable further. As the prescribed age mentioned in the employment advertisement came in the way of the petitioner to apply and/or to be selected to the post of Chairman, the petitioner had filed WP(C) 3405/2021, amongst others, assailing the advertisement dated 08.07.2021 issued by the respondent no.2 and published on 10.07.2021 insofar as it relates to the post of Chairman, State Pollution Control Board of Assam. However, although the said WP(C) 3405/2021 was dismissed by this Court by judgment and order dated 10.08.2021, the following observation was made by the Court:-

"However, before parting with the records of this case, the Court is inclined to observe that Rule 20(A)(12) of the Water (Prevention and Control of Pollution) (Assam) Rules, 1977 as amended by the Water (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021 give power to the Government to relax any provisions with respect of any class or category of persons. Pari materia provision is available in Rule 3(A)(13) of the Air (Prevention and Control of Pollution) (Assam) Rules, 1991 as amended by the Air (Prevention and Control of Pollution) Assam (Amendment), Rules, 2021. Therefore, without treating the following observations to be a direction of this Court, it is hoped that notwithstanding the dismissal of this writ petition, if the petitioner makes an application within next three days before the competent authority of the Government of Assam for relaxation of provisions of the said Rules, the competent authority shall consider and dispose of such an application in its own merit within a period of 7 (seven) days from the date of receipt of such representation along with a copy of this order downloaded from the website of the Court. The competent authority shall be at liberty to verify the order from the website of this Court and act accordingly. Obtaining of certified copy is made optional for the petitioner.

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4. The learned counsel for the petitioner has referred to Annexure-4 to the writ petition and it is submitted that on 10.07.2021, the petitioner had submitted an application before the Commissioner & Secretary to the Govt. of Assam, Environment and Forest Department (respondent no.3) to relax the age bar. However, the Principal Secretary to the Govt. of Assam, Environment and Forest Department (respondent no. 2), by an order no. FRM/ 2021/56 dated 26.08.2021 had rejected the prayer to relax the age of the petitioner to apply on the ground that at this stage it would not be prudent to relax the eligibility conditions as advertised in respect of age as it would disturb the level playing field since many prospective applicants might not have applied for this age limit. Aggrieved by the said impugned order dated 26.08.2021, the present writ petition has been filed with a prayer to set aside the same and to direct the respondent authorities to accept and consider his candidature for the post of Chairman, Pollution Control Board of Assam after exercise the power to relax the upper age limit of the said post and 62 years on the last date of application as indicated in the advertisement itself.

5. The learned counsel for the petitioner has referred to an office order dated 07.05.2013 (Annexure-7) to project that the respondent no.4, who was not a continuous resident in the State of Assam for 15 (fifteen) years had been allowed to participate in the selection process by relaxing Rule 3(d) of the amended Air (Prevention and Control of Pollution) (Assam) Rules, 1991 and pari materia provision of the Water (Prevention and Control of Pollution) (Assam) Rules, 1977. Accordingly, it is submitted that as relaxation had been granted to the respondent no. 4, nothing prevents the State respondents to relax the age of the petitioner. Accordingly, the learned counsel for the petitioner has pressed into service the prayer for interim relief.

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6. The learned counsel for the petitioner has submitted that if the requirement of the candidate having residence in the State for 15 (fifteen) years can be relaxed for respondent no. 4, the refusal by the State to condone the age of the petitioner was malicious and illegal and the rejection was with an intent to oust the petitioner from competition. It is also submitted that this Court had observed in the order dated 10.08.2021 that the application for relaxation of age was to be decided in its own merit, but the respondent no.2 had mechanically rejected the prayer for relaxation of age on an untenable and unreasonable ground that the many prospective applicants might not have applied because of the age limit. In this regard, it is submitted that even if it is assumed that the petitioner was the lone applicant for age relaxation, the reason assigned for rejection of the representation to relax age was not sustainable merely because no one else had applied.

7. Opposing the prayer for any interim relief at this stage, the learned Additional Advocate General has submitted that there is extreme urgency in the finalization of appointments in the Pollution Control Board of Assam as the State is facing contempt proceeding before the Supreme Court of India in Conmt. Pet. (C) No.655/2020 in CA No.1359/2017. It is also submitted that by filing an affidavit in the said proceeding before the Supreme Court of India, the State has projected that it would complete the process within 15.09.2021. It is also submitted that as per instructions received by him, the respondent no. 4 was an IFS officer of Assam Cadre and has served in the State for more than 15 years and that there is nothing in the Air Rules and Water Rules of the State which imposes condition that in order to apply for the post of Chairman, a candidate must have resided in the State continuously for 15 (fifteen) years.

8. The Court is of the considered opinion that at this stage, there is no Page No.# 6/9

material on record from which it can conclusively be said that the respondent no.4 was not a resident of Assam for a period of not less than 15 years merely on the basis of office order dated 07.05.2008 (Annexure-7). Prima facie it also does not appear to the Court that there is any clause in the amended Air (Prevention and Control of Pollution) (Assam) Rules, 1991 and amended Water (Prevention and Control of Pollution) (Assam) Rules, 1977, which requires 15 (fifteen) years of continuous residence in the State of Assam as a criteria for being appointed to the post of Chairman of the Pollution Control Board of Assam. It also prima facie appears that the consideration of the respondent no.2 that relaxation of age limit in case of petitioner may disturb the level playing field since many prospective applicants might not have applied for the age limit cannot be brushed aside. The Court is also conscious of the fact that otherwise on merit, the writ petition being WP(C) 3405/2021 was dismissed.

9. There is one more factor noticed by the Court. From the previous order dated 10.08.2021, passed by this Court, as quoted herein before, it is seen that this Court had expressed hope that if the petitioner makes an application within next three days before the competent authority of the Government of Assam for relaxation of provisions of the said Rules, the competent authority shall consider and dispose of such an application in its own merit within a period of 7 (seven) days from the date of receipt of such representation along with a copy of this order downloaded from the website of the Court. However, the petitioner had not submitted any fresh representation before the competent authorities of the State. Therefore, even in the absence of a fresh representation, the respondent no. 2 had disposed of his pending representation dated 10.07.2021. The respondent no. 2 had assigned a reason as deemed appropriate by him. The ground assigned to reject the Page No.# 7/9

representation cannot be held to be unreasonable, or malicious or illegal. It is also seen that in the representation dated 10.07.2021 (Annexure-4), the petitioner had expressed as follows - "... That Sir, my date of birth is 01.03.1959 and hence completed 62 years on March, 2021 and because of that I am perhaps not eligible to apply for the post . ..." Thus, not only the petitioner was aware on 10.07.2021, when he had submitted his representation that having crossed the age of 62 years on 01.03.2021, he may not be eligible to apply for the post, but the previous writ petition, i.e. W.P.(C) No. 3405/2021 was dismissed on merit by order dated 10.08.2021.

10. Therefore, the Court having noted the submissions made by the learned Additional Advocate General of the State that the respondent no. 4 was a retired member of the Assam Forest Service from Assam Cadre, who had served within the State for more than 15 years and had also held the post of PCCF of the State in the past and that no relaxation was granted to the said respondent no. 4 on account of any shortfall on 15 (fifteen) years' stay in the State, the said plea of the petitioner fails. The Court has also taken note of the submissions made by the learned Additional General of the State that the State is urgently required to fill up the vacant post of Chairman of Pollution Control Board of Assam, which is presently manned on In-Charge basis by the petitioner and that the State had purportedly submitted an affidavit before the Supreme Court of India that the process would be completed by 15.09.2021.

11. Moreover, the fact remains that the petitioner did not submit any fresh representation in terms of the liberty granted to the petitioner to do so vide order dated 10.08.2021 in W.P.(C) 3405/2021. Nonetheless, the respondent no. 2 had disposed of the representation by the impugned speaking order dated 26.08.2021.

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12. The plea forcefully urged by the learned counsel for the petitioner to the effect that this Court had observed in the order dated 10.08.2021 that the application for relaxation of age was to be decided in its own merit, but the respondent no. 2 had decided the same on extraneous reason appears to be untenable. The context of the said observation was that the writ petition, i.e. W.P.(C) 3405/2021 was dismissed on merit and therefore, the Court had merely required the competent authority to dispose of the representation on its own merit without being influenced by the dismissal of the writ petition. It is not acceptable submission that the observation of this Court would debar the respondent no. 2 to reject the representation dated 10.07.2021 by assigning reasons as the said authority had deemed appropriate. Thus, the said plea also fails.

13. In the present case in hand, the Court is not sitting in appeal over the wisdom of the State respondents not to relax the age of the petitioner to apply for the post of Chairman. Even assuming that the Court has not put its seal of approval on the said decision, but by no stretch of imagination, the reason assigned to reject the said representation can ex facie be held to be malicious, arbitrary, or illegal, designed to oust the petitioner from competition.

14. It may be stated that as per the cause title of this writ petition, the respondent no. 4 is shown to be a resident of Guwahati in the State of Assam. No authority has been cited by the learned counsel for the petitioner that if a person who is in All India Service Government Service and belongs to Assam Cadre as well as a resident of Assam would stand to forfeit any benefit of being a resident of the State merely because the appropriate Government had posted him outside the State in course of his service for which such government servant has not been able to stay continuously in the State of Assam for 15 Page No.# 9/9

(fifteen) years. Nonetheless, the learned counsel for the petitioner has not been able to show any particular Rule of the Air Rules and Water Rules of the State which prescribe that the eligibility criteria to select and appoint Chairman is that the incumbent has to be resident of the State continuously for 15 (fifteen) years.

15. Therefore, the Court is constrained to hold that the present challenge fails on all counts and accordingly, this writ petition stands dismissed without issuing notice upon the respondents.

16. There shall be no order as to cost.

JUDGE

Comparing Assistant