Bidhan Kumar Das vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2047 Gua

                                                                   Page No.# 1/7

GAHC010138232021




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

                          Case No. : WP(C)/4358/2021

         BIDHAN KUMAR DAS
         S/O. LT. GANA NATH DAS, R/O. AASTHA HEIGHTS, FLAT NO.3B, M R D
         ROAD, BAMUNIMAIDAN, GUWAHATI-781021.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
         ENVIRONMENT AND FOREST DEPTT., DISPUR, PIN-781006.

         2:THE COMMISSIONER AND SECY.
         TO THE GOVT. OF ASSAM
          ENVIRONMENT AND FOREST DEPTT.
          DISPUR
          PIN-781006.

         3:POLLUTION CONTROL BOARD ASSAM

          DEPTT. OF ENVIRONMENT AND FOREST
          GOVT. OF ASSAM
          BAMUNIMAIDAN
          GUWAHATI-781021
          REP. BY THE CHAIRPERSON.

         4:THE CHAIRMAN

          POLLUTION CONTROL BOARD ASSAM
          DEPTT. OF ENVIRONMENT AND FOREST
                                                                          Page No.# 2/7

             GOVT. OF ASSAM
             BAMUNIMAIDAN
             GUWAHATI-781021

Advocate for the Petitioner   : MR. B GOGOI

Advocate for the Respondent : SC, FOREST




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 03.09.2021

Heard Mr. B. Gogoi, 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 course of his service, he appointed as In-Charge Member Secretary of the PCBA on 27.10.2020 and he is holding the said post till permanent Member Secretary is appointed by the Government. In the meanwhile the petitioner was promoted to the post of Chief Environmental Engineer in PCBA.

3. An employment advertisement was published in the newspapers on 10.07.2021, inter alia, to fill up the vacant post of Member Secretary wherein it was prescribed that the age limit for appointment to the post of Member Page No.# 3/7

Secretary shall not be exceeding 57 (fifty seven) years as on the closing date of the receipt of applications. It was also prescribed that the Member Secretary 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 Member Secretary, the petitioner had filed WP(C) 3377/2021, 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 Member Secretary, State Pollution Control Board of Assam. However, although the said writ petition 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(B)(13) 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(B)(14) 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 Page No.# 4/7

of this Court and act accordingly. Obtaining of certified copy is made optional for the petitioner."

4. The learned counsel for the petitioner has referred to Annexure- G to the writ petition and it is submitted that pursuant to the said judgment in W.P.(C) 3377/2021, the petitioner had submitted an application dated 12.08.2021, before the Commissioner & Secretary to the Govt. of Assam, Environment and Forest Department (respondent no.2) to relax the age bar, contending that due to the upper age limit of 57 years which was fixed by the advertisement, the petitioner stood ousted as he was 58 years old. However, the Commissioner & Secretary to the Govt. of Assam, Environment and Forest Department (respondent no. 2), by an order no. FRM.55/2021/57 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 and quash the said speaking order dated 26.08.2021, to direct the respondent authorities to condone the age of the petitioner and allow him to participate in the selection process held pursuant to the advertisement dated 08.07.2021.

5. The learned counsel for the petitioner has submitted that this Court had observed in the judgment order dated 10.08.2021 in W.P.(C) Page No.# 5/7

3377/2021 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 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. In the said context, it is further submitted that the employment advertisement would never contain any clause that the intending applicant may pray for relaxing the upper age limit for applying. Therefore, it is submitted that it would always be open to an intending candidate to apply before the competent authority to relax the upper age limit for applying. Accordingly, it is submitted that the reason assigned to reject the representation to condone the age was whimsical and the refusal by the State to condone the age of the petitioner was arbitrary, malicious and illegal and the rejection was with premeditated intention to oust the petitioner from competing.

6. 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.

Page No.# 6/7

7. The Court is of the considered opinion that it 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) 3377/2021 was dismissed.

8. The Court has 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 Member Secretary, 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.

9. 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) 3377/2021 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 12.08.2021 by assigning reasons as the said authority had deemed appropriate. Thus, the Page No.# 7/7

said plea also fails.

10. 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, or otherwise designed to oust the petitioner from competition.

11. 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.

12. There shall be no order as to cost.

JUDGE

Comparing Assistant