Gauhati High Court
WP(C)/6730/2016 on 8 September, 2022
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GAHC010233602016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : W.P.(C) No. 5430/2016
Miss Manashi Hazarika
D/o Sri Bipul Hazarika,
R/o Dhemaji Town,
W/No. 3, P.O. & P.S. - Dhemaji,
District - Dhemaji, Assam, PIN - 787057.
.................. Petitioner
-Versus-
1. The State of Assam,
Represented by The Chief Secretary,
To The Government of Assam,
Dispur, Guwahati-6.
2. The Commissioner & Secretary,
To The Government of Assam
General Administration Department,
Dispur, Guwahati-6.
3. The Commissioner,
North Assam Division,
Tezpur, District - Sonitpur,
Assam, PIN -784001.
4. The Additional Secretary,
To The Government of Assam,
General Administration Department,
Dispur, Guwahati-6, Assam.
5. Deputy Commissioner, Dhemaji,
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District- Dhemaji,
Assam, PIN-787057.
6. Mrs. Bornali Dutta Changmai,
W/o Sri Biplab Changmai,
R/o Gowal Chapori,
P.O. & P.S. - Dhemaji,
District- Dhemaji, Assam, PIN-787057.
7. Mouchumi Deka,
D/o Lt. Sadananda Deka,
Village - Bharalichuk,
P.O. & P.S. - Dhemaji,
District- Dhemaji, Assam, PIN-787057.
...................Respondents
W.P.[C] NO. 6730/2016
1. Mrs Bornali Dutta Changmai,
W/o - Sri Biplob Changmai,
Village - Gowal Gaon,
P.O. - Gowal Chapori,
P.S. & District - Dhemaji,
Assam, PIN - 787057.
2. Mauchumi Deka,
W/o - Mr. Ramen Kumar Baruah,
R/o - Ward No. 5,
Bharalichuk,
P.O., P.S. & District - Dhemaji,
Assam, PIN - 787057.
.................. Petitioners
-Versus-
1. The State of Assam,
Represented by The Chief Secretary,
To The Government of Assam,
General Administration Department,
Sachivalaya, Dispur, Guwahati - 6.
2. The Under Secretary,
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To The Government of Assam,
General Administration Department,
Sachivalaya, Dispur, Guwahati - 6.
3. The Deputy Secretary,
To The Government of Assam,
General Administration Department,
Sachivalaya, Dispur, Guwahati - 6.
4. The Deputy Commissioner,
Dhemaji, District - Dhemaji.
...................Respondents
Advocates :
Petitioner in W.P.[C] no. 5430/2016 : Mr. P.J. Phukan, Advocate
Petitioners in W.P.[C] no. 6730/2016 : Mr. S. Borthakur, Advocate
Respondent nos. 6 & 7 : Mr. S. Borthakur, Advocate,
In W.P.[C] no. 5430/2016
Respondent nos. 2 & 4 in : Mr. A. Phukan, Standing Counsel,
W.P.[C] no. 5430/2016 & General Administration Department
Respondent nos. 1, 2 & 3 in
W.P.[C] no. 6730/2016
Respondent nos. 1, 3 & 5 in : Mr. H. Sarma,
W.P.[C] no. 5430/2016 & Additional Senior Government Advocate, Assam.
Respondent no. 4 in
W.P.[C] no. 6730/2010
Date of Hearing : 06.09.2022 & 08.09.2022
Date of Judgment & Order : 08.09.2022
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BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [Oral]
In the two writ petitions, an order dated 18.08.2016 passed by the
Commissioner & Secretary to the Government of Assam [GoA], General
Administration Department [GAD] has been put to challenge, from two separate
fronts. The challenges are made to the impugned order dated 18.08.2016 by -
[i] the petitioner in the writ petition, W.P.[C] no. 5430/2016 on one hand; and
[ii] the two petitioners in the writ petition, W.P.[C] no. 6730/2016, who are also
arraigned as the respondent no. 6 and the respondent no. 7 respectively in the
writ petition, W.P.[C] no. 5430/2016, on the other hand. For the sake of easy
reference, the petitioner in the writ petition, W.P.[C] no. 5430/2016 is being
referred to hereinafter as 'the petitioner' and the two petitioners in the writ
petition, W.P.[C] no. 6730/2016 are being referred to hereinafter as 'the private
respondents'.
2. The facts which are found necessary and relevant for determination of
the issues raised in the two writ petitions can be narrated, in short, as follows :
2.1. The Deputy Commissioner, Dhemaji published an advertisement on
04.04.2007 inviting applications from eligible candidates for filling up a number
of posts including two posts of Stenographers, in the amalgamated
establishment of the Deputy Commissioner's Office, Dhemaji. But in the said
recruitment process, no qualified candidate to fill up the posts of two
Stenographers could be found.
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2.2. Thereafter the Deputy Commissioner, Dhemaji published another
Advertisement on 27.02.2008 specifically to fill up two nos. of vacancies in the
post of Stenographer in the amalgamated establishment of the Deputy
Commissioner, Dhemaji. It was mentioned in the Advertisement that the
essential educational qualification would be HSSLC examination or an equivalent
examination of recognized University or Board with shorthand and typing speeds
of 80 & 30 words per minute respectively. Preference would, however, be given
to candidates with diploma in computer and knowledge of word processing. The
scale of pay for the post of Stenographer was mentioned in the Advertisement
as Rs. 3850-90-4480-120-4600-EB-120-5200-175-6600-250-7350/- p.m. and
other allowances as admissible under the Rules. In the Advertisement, it was
laid down that the appointment against the sanctioned vacant posts would be
made in accordance with the provisions of Section 7[1][g] of the Assam Fiscal
Responsibility and Budget Management Act, 2005 ['the AFRBM Act, 2005', for
short]. It was further mentioned that the appointment would be made after
getting necessary approval from the GAD, GoA.
3. In response to the Advertisement dated 27.02.2008, a number of
candidates including the petitioner and the two private respondents, had
submitted their candidatures. In the selection process undertaken pursuant to
the Advertisement dated 27.02.2008, the petitioner, the private respondents and
a number of other candidates whose applications were accepted, were allowed
to participate. After completion of the selection process, the Deputy
Commissioner, Dhemaji by two orders of appointment, both dated 17.06.2008,
appointed the private respondents as Stenographer [Under Qualified] against
the two advertised sanctioned posts of Stenographer in the scale of pay of Rs.
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3010-60-3490-90-3850-EB-90-4480-120-5200-175-6075/- p.m., which was
lower than advertised scale of pay of Rs. 3850-90-4480-120-4600-EB-120-5200-
175-6600-250-7350/- p.m.
4. Aggrieved by the said two orders of appointment whereby the private
respondents were given appointments as Stenographers [Under Qualified] in the
establishment of the Deputy Commissioner, Dhemaji against the two posts
advertised as Stenographer with pay scale : Rs. 3850-90-4480-120-4600-EB-
120-5200-175-6600-250-7350/- p.m. the petitioner in the writ petition, W.P.[C]
no. 5430/2016 along with four other petitioners challenged the said orders of
appointment of the private respondents by instituting a writ petition, W.P.[C] no.
3197/2008. After hearing the parties, the writ petition, W.P.[C] no. 3197/2008
came to be disposed of by an order dated 16.06.2011. The relevant excerpts of
the order dated 16.06.2011 is as under :
"Although the Deputy Commissioner, Dhemaji pursuant to the selection, sought for
due approval of the Commissioner & Secretary, General Administration Department,
but before any response was shown, the respondents No. 5 and 6 were appointed.
There is no requirement of seeking such approval as per the provisions of the Rules. In
one hand, the case of the petitioners is that since the respondents No. 5 and 6 did not
conform to the requirement of the Rules, their candidatures ought to have been
rejected and consequently could not have been selected, but on the other hand the
stand of the respondents No. 5 and 6 is that they having offered their candidatures in
terms of the advertisement and the same having been accepted, they duly participated
in the selection. In one hand the contention is for strict application of the Rules and on
other hand the contention is for deemed relaxation or actual relaxation of the Rules. It
is also submitted that since the respondents No. 5 and 6 have been appointed as
Stenographer [Under Qualified] in the lower scale of pay, same by itself may not
disturb the posts of Stenographer Grade-III.
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All the above aspects of the matter will require consideration of the Commissioner &
Secretary to the Government of Assam in the General Administration [B] Department.
Accordingly, this writ petition is disposed of directing the said authority to examine the
matter in the light of the discussions made above and the materials available on record
and to pass appropriate orders as may be expedient in law. While taking action in
terms of this order, the authority may also consider whether in the meantime, the two
respondents have acquired the required qualification and/or whether they should be
given opportunity to acquire the same.
Let the entire exercise be carried out as expeditiously as possible, preferably within
four months from today."
5. In deference to the direction made in the order dated 16.06.2011, the
Deputy Secretary to the Government of Assam, GAD made a Communication to
the Deputy Commissioner, Dhemaji on 16.12.2011 wherein it was observed that
considering the service already rendered by the private respondents, they might
be given an opportunity for acquiring requisite qualification for the post of
Stenographer-III, as envisaged and prescribed in Schedule-I, Part-A [Rule-8],
Assam Stenographers Service Rules, 1995 within a time frame. The said
Communication dated 16.12.2011 came to be assailed by the petitioner in the
writ petition, W.P.[C] no. 5430/2016 along with another petitioner in a writ
petition, W.P.[C] no. 590/2012. By an order dated 31.05.2016 passed in the writ
petition, W.P.[C] no. 590/2012, the impugned Communication dated 16.12.2011
was set aside with a further direction to the Commissioner & Secretary to the
Government of Assam, GAD to consider all the points raised by the Court in the
order dated 16.06.2011 passed in the writ petition, W.P.[C] no. 3197/2008 and
to come to a finding by giving reasons. The said authority was also directed to
take a decision on the selection and appointment of the private respondents
within a specific time period.
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6. It was pursuant to the aforesaid directions made in the order dated
31.05.2016 [supra] the impugned order dated 18.08.2016 came to be passed.
In the order dated 18.08.2016, the Commissioner & Secretary to the
Government of Assam, GAD upon consideration of the rules governing the
recruitment of Stenographers, had directed the Deputy Commissioner, Dhemaji
to consider scrapping the earlier irregular recruitment process and to consider
the issuance of an Advertisement afresh to fill up the posts of Stenographer,
Grade-III as per the norms laid down in the Assam Stenographers Service
Rules, 1995 after obtaining fresh approval of the Government in the Finance
[SIU] Department/GAD towards filling up of the vacant sanctioned posts. It was
further observed therein that as per the provisions of the Assam Stenographers
Service Rules, 1995, the candidates must possess the required qualifications at
the time of application and in the fresh recruitment process, the Deputy
Commissioner, Dhemaji as the Appointing Authority, would examine whether the
applicants including the two private respondents herein, had acquired the
required qualification or not.
7. I have heard Mr. P.J. Phukan, learned counsel for the petitioner in the writ
petition, W.P.[C] no. 5430/2016 and Mr. S. Borthakur, learned counsel for the
two petitioners in the writ petition, W.P.[C] no. 6730/2016 and the private
respondents i.e. the respondent no. 6 and the respondent no. 7 in the writ
petition, W.P.[C] no. 5430/2016. I have also heard Mr. A. Phukan, learned
Standing Counsel, GAD and Mr. H. Sharma, learned Additional Senior
Government Advocate, Assam for the respondent authorities in the GAD and the
other State respondents respectively.
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8. Mr. Phukan, learned counsel for the petitioner in the writ petition, W.P.[C]
no. 5430/2016 has submitted that the qualifications for appointment for the
post of Stenographer, Grade-III have been specifically laid down in Rule 8 read
with Schedule-I, Part-A of the Assam Stenographers Service Rules, 1995 and as
such, any vacancy in the post of Stenographer, Grade-III is essentially required
to be filled up only by candidates fulfilling such prescribed qualifications. In the
case in hand, while the petitioner fulfilled the eligibility criteria under the Assam
Stenographers Service Rules, 1995 as on the last date of submission of
applications fixed by the Advertisement dated 27.02.2008, the private
respondents did not have the qualifications prescribed in the Assam
Stenographers Service Rules, 1995. Since the two vacancies in the post of
Stenographer advertised by the Advertisement dated 27.02.2008 are under the
establishment of the Deputy Commissioner, Dhemaji were of Stenographer,
Grade-III, the Deputy Commissioner, Dhemaji being the Appointing Authority,
was obligated under the law to fill up the vacancies only in conformity with the
provisions of the Assam Stenographers Service Rules, 1995 and he could not
have deviated from the eligibility criteria prescribed therein to make
appointments of ineligible and under qualified candidates in the form of the two
private respondents in the two vacancies of Stenographer, Grade-III. It is his
submission that having learnt about the illegal appointments by the Deputy
Commissioner, Dhemaji by orders of appointment dated 17.06.2008, the
petitioner had immediately approached this Court in the year 2008 and since
then, the petitioner has been pursuing the matter with all diligence till date. It is
his further contention that there could not be any relaxation of the essential
qualifications laid down in Assam Stenographers Service Rules, 1995 and the
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appointments of the private respondents are in clear violation of the provisions
of Article 14 and Article 16 of the Constitution of India.
8.1. While Mr. Phukan has supported that part of the order dated 18.08.2016
whereby the Commissioner & Secretary to the Government of Assam, GAD had
directed to scrap the selection process which would result in cancellation of the
appointments of the private respondents, he has not supported the other part of
the order dated 18.08.2016 whereby the said authority had directed to conduct
a fresh recruitment process for filling up the two vacancies of Stenographer,
Grade-III. Making assailment of that part of the order, he has submitted that
when a number of participant candidates including the petitioner, fulfilling the
prescribed qualifications laid down under the Assam Stenographers Service
Rules, 1995 are available in the fray, the respondent authorities should be
directed to continue with the selection process from the stage it stood vitiated,
with the remaining qualified candidates in the fray by applying the doctrine of
serverability.
8.2. In support of his submissions, Mr. Phukan has referred to the decision of
a Division Bench of this Court in Kime Bobby and another vs. Gauhati High
Court and another, reported in 2021 [3] GLT 33, wherein the decisions of the
Hon'ble Supreme Court of India in Rakesh Kumar Sharma vs. State [NCT of
Delhi] and others, reported in [2013] 11 SCC 58, and Ashok Kumar Sharma and
others vs. Chander Shekhar and another, reported in [1997] 4 SCC 18, have also
been relied upon. To buttress his submission on the doctrine of serverability, he
has relied upon the decision of this Court in Dr. Khagendra Narayan Baruah and
another vs. State of Assam and others, reported in 2002 [1] GLT 285.
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9. Per contra, Mr. Borthakur, learned counsel for the two petitioners in W.P.
[C] no. 6730/2016 and the two private respondents in W.P.[C] no. 5430/2016
[hereinafter referred to as 'the private respondents'] has submitted that the
Advertisement dated 27.02.2008 had mentioned the qualifications as HSSLC
examination or an equivalent examination of recognized university or Board with
shorthand and typing speeds of 80 & 30 words per minute respectively which
the two private respondents had and it did not indicate about the qualifications
prescribed in the Assam Stenographers Service Rules, 1995. Having the required
qualification as per the said Advertisement, the private respondents responded
to the same and submitted their candidatures. The Appointing Authority i.e. the
Deputy Commissioner, Dhemaji had accepted the candidatures of the private
respondents and accordingly, they were called to appear in the selection process
undertaken pursuant to the Advertisement and in the selection process so
undertaken, the two private respondents had emerged as the successful
candidates. It was only after their emergence as the successful candidates for
the two posts so advertised, the two private respondents came to be appointed
as Stenographer [Under Qualified] by the two orders of appointment dated
17.06.2008 and since then, they have been working in the establishment of the
Deputy Commissioner, Dhemaji. Since the private respondents had fulfilled the
qualifications laid down in the Advertisement, there can not be any occasion to
interfere with the selection process and the resultant appointments, as the same
were not vitiated on any other count save and except on the aspect of alleged
qualification criteria laid down in the Assam Stenographers Service Rules, 1995,
which were never indicated in the Advertisement.
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9.1. With both the private respondents having acquired the prescribed
qualification for the post of Stenographer, Grade-III, as laid down in the Assam
Stenographers Service Rules, 1995 in the meantime i.e. during the years : 2013
& 2014 respectively, the two petitioners are now continuing in the posts of
Stenographer fulfilling all the criteria prescribed for the post of Stenographer,
Grade-III in the Assam Stenographers Service Rules, 1995. Even if it is assumed
that their initial appointments as Stenographer [Under Qualified] were not in
conformity with the provisions of the Assam Stenographers Service Rules, 1995
but with the acquisition of requisite qualifications in the interregnum while in
service, and considering the long years of service rendered by the two private
respondents since the year 2008 without any kind of complaint whatsoever from
any quarter, the prayer made by the petitioner in the other writ petition shall not
be allowed as the cancellation of the appointments the private respondents
would not result in the petitioner therein getting the appointment in the
vacancies. It is his further submission that the order dated 18.08.2016 did not
address on the point of deemed relaxation as emphasized by the order dated
16.06.2011 and the order dated 31.05.2016 passed by this Court.
9.2. Mr. Borthakur with regard to his submission that there should be no
interference considering long years of service rendered by the private
respondents since 2008 and likeliness of causing undue hardship, has relied in
the decision of the Hon'ble Supreme Court of India in Vikas Pratap Singh and
others vs. State of Chattisgarh and others, reported in [2013] 14 SCC 494.
10. Mr. Phukan, learned Standing Counsel, GAD has submitted that the
Advertisement dated 27.02.2008 had made specific mention to the effect that
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the appointment to the two posts of Stenographer would be made after getting
necessary approval from the GoA, GAD. After the selection process, the Deputy
Commissioner, Dhemaji by his letters dated 02.05.2008 and 02.06.2008, sought
for approval of the select list from the Commissioner & Secretary to the
Government of Assam, GAD. When the matter of approval was under the
consideration of the GAD, the Deputy Commissioner, Dhemaji without waiting
for such approval, already sought by him, had issued the orders of appointment
dated 17.06.2008, whereby, the private respondents were appointed as
Stenographer [Under Qualified] against the two sanctioned post of
Stenographer, Grade-III in a lesser scale of pay of Rs. 3010-60-3490-90-3850-
EB-90-4480-120-5200-175-6075/- p.m. than as was advertised. He has
submitted that by a Communication dated 01.08.2008, the Commissioner &
Secretary to the Government of Assam, GAD had intimated the Deputy
Commissioner to the Dhemaji not to appoint candidates, if they were not eligible
for the post of Stenographer under the relevant Rules. There was already an
Office Memorandum dated 02.09.1998 wherein it was specifically instructed that
there shall not be any engagement of Under Qualified Stenographers and in the
event of repetition of such irregularities, the Appointing Authorities would be
held responsible.
11. Mr. Sharma, learned Additional Senior Government Advocate, Assam has
submitted that the Deputy Commissioner, Dhemaji as the Appointing Authority
to fill up the post of two Stenographers, as advertised on 27.02.2008, had the
obligation to adhere to the Rules in force viz. the Assam Stenographers Service
Rules, 1995. Since the orders of appointment dated 17.06.2008, whereby, the
private respondents came to be appointed as Stenographer [Under Qualified] at
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a scale of pay lower than the scale of pay of the Stenographer, Grade-III, had
been made subject-matter of challenge by the petitioner in the writ petition,
W.P.[C] no. 5430/2016 since 2008, this Court by the order dated 16.06.2011
directed the Commissioner & Secretary to the Government of Assam, GAD to
consider the entire aspects, indicated therein, of the matter and it was in
compliance of the said direction the Commissioner & Secretary to the
Government of Assam, GAD had passed the order dated 18.08.2016.
12. I have duly considered the submissions of the learned counsel for the
parties and have also perused the materials on record brought by the parties
through their pleadings. I have also considered the decisions referred to by the
learned counsel for the parties in support of their submissions.
13. At this stage, it is apposite to refer to the provisions of the Assam
Stenographers Service Rules, 1995, a set of rules framed in exercise of the
powers conferred under the proviso to Article 309 of the Constitution of India
for purpose of regulating recruitment and the conditions of service of the
persons appointed to the Assam Stenographers' Service. In the Definition
Clause, Rule 2[a] of the Assam Stenographers Service Rules, 1995 has defined
'Appointing Authority'. An Appointing Authority inter alia means the Heads of the
Department, the Deputy Commissioners or the other Heads of Offices, as the
case may be, in respect of the Stenographers, Grade-II & Grade-III in their
respective offices. Cadre and Status as provided in Rule 3[1] thereof, includes
Stenographer, Grade-III. As per Rule 3[2], Stenographer, Grade-III appointed in
other State Government offices shall be deemed to constitute separate cadres in
the respective grades in respect of each such office. The methods of recruitment
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to various cadres including Stenographer, Grade-III, have been outlined in Rule
5 and as per Rule 5, the method of recruitment in the cadre of Stenographer,
Grade-III is direct recruitment in accordance with the provision of Rule 6 and
Schedule-I, Part-A. Rule 6[1] has stated that appointment to the cadre of
Stenographer, Grade-III shall be made by direct recruitment in accordance with
the procedure as provided in the said rule. The selection is to be made in
accordance with the scheme of selection as given in Schedule-III or as
prescribed by the Government.
14. As per Rule 8, the academic qualification of a candidate for appointment
to each cadre shall be as prescribed by the Government from time to time. The
qualifications and experience have been prescribed in Schedule-I, Part-A and
Part-B. Schedule-I, Part-A reads as under :
"Qualification for direct recruitment to the following cadre of the service shall be as
prescribed below -
1. Stenographer Grade-III -
1) Passed PU/HSSLC or an equivalent examination of a recognized University or
Board.
2) Passed the speed test of 80 words per minute in English Stenography or in an
Indian Language Stenography [Assamese/ Bengali/Hindi] conducted by the Board.
2. The National Trade Certificate in Stenography [English] awarded to the trainees
from the Industrial Training Institutes in Assam by the National Council for
Vocational Trade after the 1st August, 1975 and diploma in Stenography from
Government recognized Polytechnic of the State shall be recognized as the
certificate of requisite qualification for the purpose of direct recruitment as
Stenographer Grade-III [English]; provided the candidate possesses the requisite
academic qualification as prescribed at paragraph 1[1] above :
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Provided further that this recognition shall remain in force till otherwise decided
by the Government :
Provided further that in case there are more such candidate that the number of
vacancies, the Appointing Authority shall hold a test with a view to judging the
comparative merit of the candidates for making a selection."
15. The Assam Fiscal Responsibility and Budget Management Act, 2005 ['the
AFRBM Act', for short] has been enacted by the Assam Legislative Assembly to
provide for the responsibility of the State Government to ensure fiscal stability,
sustainability, improve efficiency and transparency in management of the public
finances of the State, enhance the availability of resources by achieving
sufficient revenue surplus, reduce fiscal deficit and remove the impediments to
effective conduct of fiscal policy and prudent debt management for improving
the social and physical infrastructure and human development in the State.
Section 7 of the AFRBM Act, 2005 has emphasized to ensure fiscal discipline and
Section 7[1] of the AFRBM Act, 2005 has stipulated that the State Government
or the Appointing Authorities under it shall give appointments only against a
sanctioned post which is vacant and in accordance with the laid down rules,
procedures and orders.
16. It is not in dispute that for a sanctioned post in Stenographer, Grade-III,
existing in the amalgamated establishment of the Deputy Commissioner,
Dhemaji, the Deputy Commissioner, Dhemaji is the Appointing Authority and he
is obligated as per the provisions of the Assam Stenographers Service Rules,
1995 and AFRBM Act, 2005 to undertake the selection process to fill up the post
of Stenographer, Grade-III in strict compliance of the extant rules, procedures
and orders.
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17. The Office Memorandum dated 02.09.1998 of the Personnel Department,
Government of Assam is on the subject : Appointment of Under Qualified
Stenographers in the State Government and Semi-Government organizations. By
the Office Memorandum, attention has been drawn to the instructions issued
earlier by the Office Memoranda dated 06.07.1978 and 02.05.1981 to mention
that instances had come to the notice of the State Government that in spite of
instructions issued by the Government, the practice of engaging Under Qualified
Stenographers was being continued by some Departments. By the Office
Memorandum dated 02.09.1998, the Government had reiterated its earlier
decision and cautioned all concerned not to engage Under Qualified
Stenographers with the consequential action of holding the Appointing
Authorities responsible in the event of appointment of Under Qualified
Stenographers. By the Office Memoranda, the State Government has
emphasized that the Appointing Authorities shall not appoint Under Qualified
Stenographer.
18. It is settled that the omission to mention the relevant qualifications does
not relieve the State Government or the Appointing Authorities under the State
from its obligation to follow the existing rules which, in the case in hand, are the
Assam Stenographers Service Rules, 1995 and the AFRBM Act, 2005. The State
and its authorities are bound by the standards specified in the extant rules and
they cannot extricate themselves from the obligation of enforcing the extant
rules.
19. At the cost of repetition, it needs mention that the Advertisement dated
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27.02.2008 was published in order to fill up two vacancies of Stenographers
with pay scale of Rs. 3850-90-4480-120-4600-EB-120-5200-175-6600-250-
7350/- p.m. which pay scale is meant for Stenographer, Grade-III with the
qualification prescribed in the Assam Stenographers Service Rules, 1995. A look
at the orders of appointment dated 17.06.2008 goes to show that the private
respondents had been appointed as Stenographer [Under Qualified] against the
two sanctioned posts of Stenographer and the private respondents were given a
lower pay scale of Rs. 3010-60-3490-90-3850-EB-90-4480-120-5200-175-6075/-
p.m. The Deputy Commissioner, Dhemaji as the Appointing Authority for the
post of said two posts of Stenographer, Grade-III has not provided any
explanation as to why the two private respondents had been appointed as
Stenographer [Under Qualified] when the Advertisement was specific that
applications were invited for filling up the post of Stenographer with different
pay scale, as noted above. Thus, it is clear that the Deputy Commissioner,
Dhemaji as the Appointing Authority, did not follow the procedure in giving
appointments to the private respondents.
20. A submission has been advanced on behalf of the private respondents
that the Advertisement dated 27.02.2008 did not mention about the
qualifications, etc. in conformity with Schedule-I, Part-A of the Assam
Stenographers Service Rules, 1995 and, thus, no role could be attributed to the
private respondents in the act of their being appointed as Stenographer [Under
Qualified] by the orders of appointment dated 17.06.2008. It has also been
urged on behalf of the private respondents that considering the long years of
service they have extended as Stenographer [Under Qualified] since the year
2008 and also the fact that they have acquired the requisite qualification as per
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the Assam Stenographers Service Rules, 1995 in the meantime, no interference
should be made at this distant point of time. The Advertisement was published
on 27.02.2008 and the appointments were made by the orders of appointment
dated 17.06.2008. Immediately thereafter, the petitioner and a number of
candidates who participated in the same selection process, alleging commission
of illegality in the selection process, had approached this Court by the writ
petition, W.P.[C] no. 3197/2008. From the order dated 16.06.2011 passed in the
writ petition, W.P.[C] no. 3197/2008, it is noticed that a similar plea on behalf of
the private respondents were taken with the submission that on the date of final
consideration of the writ petition, they had already gathered experience of three
years as Stenographer [Under Qualified]. It is not denied at any stage by the
private respondents therein that they did not possess the requisite National
Trade Certificate, etc. as laid down in the Assam Stenographers Service Rules,
1995, either at the time of submission of the candidatures in response to the
Advertisement dated 27.02.2008 or at the time of their appointments on
17.06.2008.
21. It is a settled position of law that the eligibility of a candidate or applicant
for a public post or service is to be adjusted as on the last date of receipt of
application for such post or service in terms of the relevant advertisement and
the prevailing service rules. The Hon'ble Supreme Court of India in the three-
judges bench decision in Ashok Kumar Sharma and others [supra] has observed
as under :
".........the proposition that where applications are called for prescribing a particular
date as the last date for fling the applications, the eligibility of the candidates shall have
to be judged with reference to that date and that date alone, is a well-established one. A
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person who acquires the prescribed qualification subsequent to such prescribed date
cannot be considered at all. An advertisement or notification issued/published calling
for applications constitutes a representation to the public and the authority issuing it is
bound by such representation. It cannot act contrary to it. One reason behind this
proposition is that if it were known that persons who obtained the qualifications after
the prescribed date but before the date of interview would be allowed to appear for the
interview, other similarly placed persons could also have applied. Just because some of
the persons had applied notwithstanding that they had not acquired the prescribed
qualifications by the prescribed date, they could not have been treated on a preferential
basis. Their application ought to have been rejected at the inception itself. This
proposition is indisputable........"
22. In Rakesh Kumar Sharma [supra], the Hon'ble Supreme Court of India
has also referred to the decision in State of Gujarat vs. Arvindkumar T. Tiwari,
reported in [2012] 9 SCC 545, wherein, it is held that a person who does not
possess the requisite qualification cannot even apply for recruitment for the
reason that his appointment would be contrary to the statutory rules, and would
therefore, be void in law. Lacking eligibility for the post cannot be cured at any
stage and appointing such a person would amount to serious illegibility and not
mere irregularity. Such a person cannot approach the court for any relief for the
reason that he does not have a right which can be enforced through court.
Thereafter, it has gone on to hold that there is no obligation on the Court to
protect an illegal appointment. The extraordinary power of the Court should be
used only in an appropriate case to advance the cause of justice and not to
defeat the rights of others or create arbitrariness. Usurpation of a post by an
ineligible candidate in any circumstance is impermissible. It has noted that if in
the selection process an ineligible candidate is appointed then there could be a
large number of candidates who were not eligible as per the requirement of the
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rules, advertisement since they did not possess the required eligibility on the
last date of submission of the application forms. Granting any benefit to only
one ineligible candidate would be violative of the doctrine of equality, a
backbone of the fundamental rights under the Constitution of India. A large
number of such candidates may not have applied considering themselves to be
ineligible adhering to the statutory rules and the terms of the advertisement.
23. After referring to the afore-mentioned decisions of the Hon'ble Supreme
Court of India, a Division Bench of this Court in Kime Bobby & another [supra]
after taking note of the factual matrix of the case which resulted in appointment
of an ineligible candidate, has observed that the stand taken by the appointee
that he should be allowed to continue in service, as he had the required
eligibility criteria in the meantime, cannot be allowed as the same is not
permissible and, thus, has negated the prayer of such appointee by refusing to
invoke the equity jurisdiction of the Court.
24. The factual matrix in Vikas Pratap Singh and others [supra], relied on by
the learned counsel for the private respondents, in a nutshell, is that the names
of the appellants therein got included in the first merit list prepared for the
posts of Subedars, Platoon Commanders and Sub-Inspectors. On 18.09.2006,
an Advertisement inviting applications for recruitment of 380 posts of Subedars,
Platoon Commanders and Sub-Inspectors in the State of Chattisgarh was issued
and the preliminary examination was conducted on 24.12.2006. The successful
candidates were called for the main examination and after the main
examination, physical examination and personal interview, the final merit list of
candidates was published on 08.04.2008 whereby all the appellants therein
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were selected. Based on the said merit list, the appointment letters were issued
to the selected candidates including the appellants, in the year 2008. When
complaints were received regarding defects/mistakes in several questions of the
main examination papers, an expert committee was constituted to enquire into
the complaints. The expert committee noted two sets of defects. Re-evaluation
of the answer scripts of the candidates was carried out. On 27.06.2009, a new
revised merit list was published wherein the names of twenty-six appellants did
not figure and accordingly, the appointments of the appellants therein were
cancelled by the State of Chattisgarh. The Hon'ble Supreme Court of India took
note of the fact that in view of the interim orders passed by the Court, the
appellants had completed their training and had been in service for more than 3
years and thus, the only question that survived for consideration and decision
was whether after having undergone training and assumed charge at their
places of posting the twenty-six appellants should be ousted from service on the
basis of cancellation of their appointments qua the revised merit list. It was in
such backdrop situation, the Hon'ble Supreme Court of India had observed that
it would cause undue hardship to the twenty-six appellants if their appointments
were cancelled after being appointed only because of the erroneous evaluation
by the authorities in the State Government and it was directed to the State of
Chattisgarh to appoint the appellants in the revised merit list by placing them at
the bottom of the list.
25. In Vikas Pratap Singh and others [supra], the question of ineligibility of
the appellants due to lack of qualification prescribed in the statutory rules was
never the question. But in the case in hand, the case of the private respondents
is about their lack of qualification for the post of Stenographer, Grade-III on the
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date of the Advertisement as well as on the last date of submission of
applications in response to the Advertisement as well as on the dates of their
appointments. The position in Vikas Pratap Singh and others [supra] cannot be
equated with the position obtaining in the case in hand and as such, this Court
is of the view that the decision in Vikas Pratap Singh and others [supra] relied
on behalf of the private respondents, cannot be made applicable to the case of
the private respondents, for the established position of law that the
appointments made in contravention of the statutory rules are void ab initio.
Moreover, the appointments of the private respondents had been under the
cloud right since the year 2008 with the institution of the writ petition, W.P.[C]
no. 3197/2008. Thus, the consequence of cancellation of their appointments
was hanging over them continuously since 2008 like a sword of Damocles.
26. Rule 25 of the Assam Stenographers Service Rules, 1995 has contained
the provision for relaxation and as per Rule 25, where the State Government is
satisfied that the operation of any of the rules causes 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 just and equitable manner, provided that the case of
any person shall not be dealt with in any manner less favourable to him than
that provided in the Assam Stenographers Services Rules, 1995.
27. This Court while disposing of the writ petition, W.P.[C] no. 3197/2008 had
inter alia observed that when the Commissioner & Secretary to the Government
of Assam, GAD would consider the matter, the said authority may also consider
whether in the meantime, the two private respondents had acquired the
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required qualification and/or whether they should be given the opportunity to
acquire the same. It is this observation which has been canvassed by the
learned counsel for the private respondents to urge that there was indication for
grant of deemed relaxation and the impugned order did not take into
consideration the aspect of deemed relaxation. From Rule 25 of the Assam
Stenographers Service Rules, 1995, it is evident that it is only the Government
not any other authority like the Deputy Commissioner, Dhemaji in the case in
hand who is otherwise the Appointing Authority for the post of Stenographer,
Grade-III in his establishment, who has been given the power of relaxation. The
object and purpose of conferring the power on the Government to dispense or
relax the requirement of any of the Rules to the extent, and with such
conditions as it may consider necessary for dealing with a case in just and
suitable manner is to mitigate undue hardship in any particular case, and to deal
with a case in a just and equitable manner. If the Rules cause undue hardship or
Rules operate in an inequitable manner, in that event the State Government has
the power to dispense with or to relax the requirement of rules. It has been
elucidated in J.C. Yadav vs. State of Haryana, reported in [1992] 2 SCC 189,
that the Rules do not restrict the exercise of power to individual cases. The
Government may in certain circumstances relax the requirement of Rules to
meet a particular situation. The expression 'in any particular case' does not
mean that the relaxation should be confined only to an individual case. The
relaxation of the Rules may be to the extent the State Government may
consider necessary for dealing with a particular situation in a just and equitable
manner. Many a times strict application of service rules create a situation where
a particular individual or a set of individuals may suffer undue hardship and
further there may be a situation where requisite qualified persons may not be
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available for appointment to the service. In such a situation, the Government
has power to relax requirement of Rules. The State Government may in exercise
of its powers, issue a general order relaxing in particular rule with a view to
avail the services of requisite officers. The relaxation even if granted in a
general manner would enure to the benefit of individual officers.
28. In Arvindkumar T. Tiwari [supra], it has been held that in a particular
case, where it is so required, relaxation of even educational qualification[s] may
be permissible, provided that the rules empower the authority to relax such
eligibility in general, or with regard to an individual case or class of cases of
undue hardship. However, the said power should be exercised for justifiable
reasons and it must not be exercised arbitrarily, only to favour an individual. The
power to relax the recruitment rules or any other rule made by the State
Government is conferred upon the Government to meet any emergent situation
where injustice might have been caused or, is likely to be caused to any person
or class of persons or, where the working of the said Rules might have become
impossible.
29. It is to be noted that in the selection process there were number of
qualified candidates fulfilling the eligibility criteria laid down for the post of
Stenographer, Grade-III in the Assam Stenographers Service Rules, 1995 and as
such, it is not a case where there were no qualified candidates. Since the
Communication dated 16.12.2011 of the Deputy Secretary to the Government of
Assam, GAD has already been set aside by the order dated 31.05.2016 passed
in the writ petition, W.P.[C] no. 590/2012 and as a result, the observation made
therein stood effaced and therefore, no dilation is necessary to be made in that
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regard. The impugned order dated 18.08.2016 has clearly observed that the
entire recruitment process stood vitiated and a direction has been made to the
Deputy Commissioner, Dhemaji to consider scraping the recruitment process and
to consider the issuance of an advertisement afresh to fill up the post of
Stenographer, Grade-III as per the norms laid down in the Assam Stenographers
Service Rules, 1995 after obtaining fresh approval from the concerned
departments of the Government. It has also been observed that while
undertaking the fresh recruitment process, the Deputy Commissioner, Dhemaji
as the Appointing Authority would examine whether the applicants including the
two respondents have acquired the required qualifications or not. Though it is
canvassed that the Commissioner & Secretary to the Government of Assam,
GAD has not made any observation in express terms, it is evident that the said
authority by observing that the Deputy Commissioner, Dhemaji as the
Appointing Authority would also examine as to whether the private respondents
have acquired the required qualification in the meantime, has, by clear
implication, refused to exercise the power of relaxation under Rule 25 of the
Assam Stenographers Service Rules, 1995 in favour of the private respondents.
A reading of the order dated 18.08.2016 goes to imply that due consideration
has been given to the relevant factors required to be taken into consideration
and this Court has not found any good and sufficient reason to hold that the
impugned order dated 18.08.2016 is incongruent in any manner to the direction
made by this Court in its order dated 16.06.2011. The order dated 18.08.2016
wherein the direction had been made to scrap the earlier selection process
which culminated with the orders of appointment dated 17.06.2008 is found
just, proper and in conformity with law, for the reasons already discussed
hereinabove. At the cost of repetition, this Court iterates that a person who
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does not possess the requisite qualifications laid down for the post of
Stenographer, Grade-III, prescribed by the governing Assam Stenographers
Service Rules, 1995, at the time of the selection process cannot be appointed to
the post of Stenographer, Grade-III and any such appointment would be
contrary to the rules and void in law. Subsequent acquisition of the prescribed
qualification cannot be cured at any stage and continuation of such an
appointee would be an illegality.
30. As a result of the above discussion and for the reasons assigned therein,
the orders of appointment dated 17.06.2008 are found unsustainable in law and
such appointments being illegal, cannot receive judicial imprimatur.
Consequently, the assailment made to the order dated 18.08.2016 fails. Thus,
the writ petition, W.P.[C] no. 6730/2016 is found unmerited. It is accordingly
dismissed. The interim order dated 21.09.2016 stands recalled and the
competent authority shall pass the consequential order accordingly.
31. In so far as the contention raised on behalf of the petitioner in the writ
petition, W.P.[C] no. 5430/2016 on the doctrine of serverability is concerned, it
is noticed that the Advertisement dated 27.02.2008 had specifically indicated
that the appointment against the sanctioned post was to be made in accordance
with the provisions of Section 7[1][g] of the AFRBM Act, 2005. Section 7[1][g]
of the AFRBM Act, 2005 is with a non obstante clause and it has stated that
notwithstanding any other provision contained in any Act or Rules, the select list
prepared for the fresh appointments to vacant sanctioned posts shall contain
names equal to the number of vacant posts notified at the time of calling for
applications for filling up the posts. The Advertisement dated 27.02.2008 was
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published for filling up two vacant posts of Stenographer. The provision of
Section 7[1][g] of the AFRBM Act, 2005 has stipulated that the select list for two
nos. of posts should contain only the two names and not more. While in the
selection process, two private respondents were found to have got 58.5 and
51.6 marks, the petitioner was found to have scored 26.3 marks. Nothing is
available on record as to whether the petitioner got the requisite cut-off mark if
there was any or not. Be that as it may. The process of recruitment initiated by
the Advertisement dated 27.02.2008 for filling up of two nos. of posts of
Stenographer stood culminated after the preparation of select list in terms of
Section 7[1][g] of the AFRBM Act, 2005 and with the orders of appointment
dated 17.06.2008, whereby, the two private respondents came to be appointed.
The selection process stood culminated with the publication of the select list and
the consequent appointments of the candidates from the select list. The setting
aside of the two private respondents will not result in revival of the selection
process by relating it back to the stage where it stood vitiated.
32. The decision in Dr. Khagendra Narayan Baruah and another [supra] was
in relation to selection and appointment of Principals in three Medical Colleges in
Assam by the Assam Public Service Commission ['the Commission', for short].
The select list containing the names of the recommended candidates, prepared
by the Commission, was under challenge there and the entire select list was set
aside by a learned Single Judge holding that some of the candidates selected
and recommended by the Commission were found to be ineligible. The question
that arose in the intra-court appeal was whether the entire select list prepared
by the Commission was to be quashed or set aside when some of the
recommended candidates in the select list were found to be ineligible owing to
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overage, etc. It was observed that it would be permissible to maintain the
select list retaining the names of the eligible candidates by severing the
ineligible candidates and it would not be contrary to the accepted norms of the
selection procedure. Accordingly, it was observed by applying the doctrine of
serverability that the list of valid candidates recommended duly by an Expert
Body of the Commission was held to have the enforcibility minus those
candidates who were found ineligible due to their over-age or below experience
limit prescribed in the advertisement.
33. In Dr. Khagendra Narayan Baruah and another [supra], the selection
process was not culminated with the appointment of candidates and at the time
the challenge was made, only the select list of candidates recommended by the
Commission was prepared and no appointment from the select list was made. In
such view of the matter, the decision in Dr. Khagendra Narayan Baruah and
another [supra] is found not applicable to the facts and circumstances of the
case in hand. As a result of the above discussion, this Court is not in a position
to accede to the submission advanced by the petitioner in the writ petition, W.P.
[C] no. 5430/2016 as the same is found unmerited. As a result, the writ petition
is deserved to be dismissed and it is accordingly dismissed.
34. In view of the dismissal of both the writ petitions, the Appointing
Authority i.e. the Deputy Commissioner, Dhemaji may proceed with the selection
process to fill up the resultant vacancies in the post of Stenographer, Grade-III
in his establishment in accordance with the extant rules and procedures, if so
advised. If in such process there is participation of the petitioner or the private
respondents, the Appointing Authority shall consider about grant of age
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relaxation under the extant provisions.
35. There shall, however, be no order as to costs.
JUDGE
Comparing Assistant
