B.K. Sharma, J.@mdashIt is not for nothing that a general perception is said to prevail, more particularly, amongst the aspirants for job that unless, you are favoured one of the politicians or the power that be, merit and performance do not count in the matter of public employment. This is a unique case of its kind in which a candidate (Respondent No. 6) has been appointed in the particular post with the blessings of the politicians with the sole consideration that the said candidate belongs to the same political party and in the process, the merit has been trampled.
2. Shortly stated the facts leading to the filing of the instant writ petition are that pursuant to the Annexure 1 advertisement dated 7.10.2009 for the post of Graduate Arts Teacher in the Govinda Misrashram Tol, amongst others, the Respondent No. 6 and the Petitioner offered their candidature for the said post.
3. Pursuant to a selection conducted, the Petitioner was selected for appointment as he secured 28.56 marks out of the total marks of 45 fixed under different heads. A penal of candidates was prepared by the Selection Committee in which the Petitioner secured first position and one Aparna Devi and one Sumi Patowary secured 2nd and 3rd position, they having obtained 27.8 and 27.7 marks respectively. As regards the Respondent No. 6, he was placed down below in the select list and naturally so when he could secure only 17.94 marks. As stated above, marks were awarded under different heads, such as, "Academic marks in HSLC/HS/BA/TDC/B. Ed/MA and finally under the head Interview". As many as 7(seven) members constituted the Selection Board.
4. In view of the aforesaid position, in the normal circumstances, the Petitioner should have been appointed but it is the Respondent No. 6 who was appointed by Annexure III order dated 11.5.2010 issued by the Deputy Director of Sanskrit Education, Assam. As per the order, the appointment was in pursuance to the Assam Education Minister''s DO letter No. ME.20/2010/126 dated 7.5.2010. A copy of the order was also endorsed to the Education Minister through his Private Secretary in reference to the said DO letter. For a ready reference, the said order dated 11.5.2010 is quoted below:
OFFICE OF THE DEPUTY DIRECTOR FOR SANSKRIT
EDUCATION
KAHILIPARA: GUWAHATI -19.
Ref.: Letter dated 7.12.2009 of Secy. Govinda Misrashram Tol, PO. Belsor, Distt. Nalbari.
Sub.: Approval of appointment.
ORDER
Sri Bikash Misra, Vill. Belsor, P.O. Belsor, Distt. Nalbari is hereby appointed as graduate teacher (Arts) in the Govinda Misrashram Tol, P.O. Belsor, Distt. Nalbari in the scale of pay of Rs. 5300 to 20,200 + 2800 grade pay p.m. with other allowances admissible as per rules w.e.f. his date of joining. The appointment is in pursuance to the hon''ble Edn. Minister, D.O. letter No. HE.20/2010/126, dated 7.5.2010.
This has the approval of the Finance (BIU) Department conveyed vide their U/o No. F.D.I. 352/09, dated 3.9.2009 and communicated to the undersigned, vide Government of Assam Edn.(H) Department Letter No. a.F. 275/2009/17 dated 5.9.2009.
Service condition of this appointment will be govern by the Finance Department Government of Assam letter No. H.3/2003/Pt.11/1, dated 25.1.2005.
Sd/-
Deputy Director of Sanskrit Education,
Assam, Kahilipara, Guwahati-19.
(emphasis supplied)
5. It is in the aforesaid circumstances, the Petitioner was forced to invoke the writ jurisdiction of this Court by filling the instant writ petition, which was entertained by order dated 18.5.2010. Noticing the aforesaid fact, the impugned order dated 11.5.2010 made in favour of the Respondent No. 6 was suspended.
6. Having noticed the aforesaid fact, this Court by the same order passed on 18.5.2010 arrayed the Education Minister, Government of Assam as party Respondent (Respondent No. 7), directing him to explain the circumstances in which he had written the aforesaid DO letter dated 7.5.2010 to the Respondent No. 3, i.e., the Deputy Director of Sanskrit Education. In response to the notice issued in the writ petition as well as the aforesaid order passed by this Court, the Respondent No. 7, i.e., the Education Minister, Government of Assam has filed his affidavit. Similarly, Respondent No. 6, Respondent No. 3, Respondent No. 2 and Respondent No. 1 have also filed their individual affidavits. An affidavit-in-opposition has also been filed on behalf of the Respondent Nos. 4 and 5.
7. The Respondent Nos. 1 and 2 are Additional Chief Secretary to the Government of Assam in the Education Department and Director of Higher Education, Assam, respectively. In their affidavits, the stand is that the selection and appointment of any teaching and non-teaching staff of provincialised Sanskrit Tols in Assam is within the jurisdiction of the Deputy Director of Sanskrit Education, Assam and they were not aware of the aforesaid selection and appointment.
8. In the counter affidavit filed by the Respondent No. 3, i.e., the Deputy Director of Sanskrit Education, it has been generally stated about the selection procedure and as to how the documents pertaining to the same were sent to him. In paragraph 19 of the counter affidavit, it has been stated, thus:
19, That in the meanwhile, the concerned Departmental Minister forwarded a letter dated 7.5.2010 to the deponent together with an application submitted by the Respondent No. 6 Sri Bikash Misra and other recommendations of different Students Unions, President of the Assam Pradesh Committee, etc., where by the said Respondent prayed for his appointment as Graduate Teacher in the Govinda Misrashram Tol. By the said letter the Departmental Minister asked the deponent that he may consider the case of the Respondent No. 6 for his appointment as prayed for.
9. From the above, what is seen is that there is no denial on the part of the Respondent No. 3 that the Respondent No. 6 was appointed pursuant to the aforesaid DO letter of the Departmental Minister.
10. In the affidavit filed by the Respondent Nos. 4 and 5, they have generally stated about the selection conducted for appointment of Graduate Teacher (Arts) in the aforesaid Sanskrit Tol. In their affidavit, it has been stated that in response to the advertisement dated 7.10.2009, altogether 63 candidates offered their candidatures and thereafter the selection was conducted on 22.11.2009. According to the said affidavit, a final merit list was prepared on the basis of the marks secured by the candidates and the School Managing Committee in its meeting held on 28.11.2009 took resolution for sending the select list to the departmental authority for necessary action. Thereafter, the final merit list was sent to the Departmental Authority on 7.12.2009. It has also been stated that there is resentment for not filling up the aforesaid post of Graduate Arts Teacher and accordingly the Managing Committee of the Tol in its meeting held on 9.5.2010, urged upon the Authority to make appointment on the basis of the aforesaid merit list.
11. In the affidavit filed by the Respondent No. 6, i.e., the candidate who has been appointed by the impugned order quoted above, it is his stand that he had submitted an application to the Education Minister on 18.10.2009 through the local MLA for being appointed as Graduate Teacher (Arts) in the aforesaid Sanskrit Tol. As regards the other statements made in the writ petition, the stand of the Respondent No. 6 is that appropriate submission would be made at the time of hearing of the writ petition. Today, Mr. A.K. Goswami, learned senior counsel representing him, submits that he has received instruction from the said Respondent, not to make any further submission. It will be pertinent to mention here that on earlier occasions, Mr. Goswami was heard on behalf of the Respondent No. 6.
12. In the counter affidavit filed by the Education Minister, i.e., the Respondent No. 7, he has enclosed the aforesaid DO letter dated 7.5.2010, which reads as follows:
"No. ME/20/2010/126
7th May, 2010.
Deputy Director
Sanskrit Education,
DHE Office, Kahilipara,
Guwahati.
Enclosed please find herewith an application submitted by Shri Bikash Misra resident of Village-Belsor in Nalbari District recommended by the President, APCC and the Ex-MLA, Dharmapur LAC, praying for appointment as Graduate Teacher at Gobinda Misra Ashram Toll, Nalbari. It has been stated in the application that he belongs to a victimised family, in support of which, certain documents have been enclosed.
The grounds stated in the application may please be taken into consideration for his appointment, as prayed for.
Sd/-
(Gautom Bora)
Minister, Education,
Assam, Dispur."
13. It is the stand of the Respondent No. 7, i.e., the Education Minister that he had never directed/ordered to appoint the Respondent No. 6 as recorded in the impugned order dated 11.5.2010 but issued the DO letter only for consideration of the grounds stated therein. The Respondent No. 7 has also tendered unconditional, bona fide and unqualified apology to the court if there was any omission or commission on his part.
14.1 have heard Mr. N. Deka, leaned counsel for the Petitioner as well as Mr. M.R. Pathak, learned Standing Counsel, Education. I have also heard Mr. B.N. Sharma, learned Counsel representing the Respondent Nos. 4 and 5. As recorded above, there is no further submission on behalf of Mr. A.K. Goswami, learned senior counsel representing the Respondent No. 6. Mr. K.H. Choudhury, learned senior counsel representing the Respondent No. 7 vehemently argued that the Respondent No. 3, i.e., the Deputy Director of Sanskrit Education ought not to have made use of the aforesaid DO letter dated 7.5.2010, so as to make it known in the impugned order of appointment that such appointment was made on the basis of recommendation of the Respondent No. 7. He submits that only thing stated in the DO letter was to consider the grounds urged by the Respondent No. 6 in his representation and that there was no direction as such to appoint the Respondent No. 6.
15. During the course of hearing, Mr. Pathak, learned Standing Counsel, Education Department has produced the order dated 9.8.2010 issued by the Deputy Director, Sanskrit Education, Assam, by which the Petitioner has been appointed as Graduate Teacher (Arts) in the aforesaid Sanskrit Tol pursuant to the aforesaid selection. Be it stated here that pursuant to the aforesaid interim order dated 18.5.2010, the appointment made in favour of the Respondent No. 6 has already been cancelled.
16. As recorded in the order dated 22.7.2010, although a stand was sought to be taken that the Chairman of the Selection Committee did not sign the statement of marks but the records produced by the learned Standing Counsel, Education, clearly revealed that the said Chairman has signed the minutes of the Selection Committee as well as the Managing Committee by which the recommendations had been made for appointment on the basis of the marks obtained by the candidates in the selection. Accordingly, direction was issued to the Deputy Director to take necessary follow up action on the basis of the minutes of the Selection Committee followed by the resolutions adopted by the said Committee and the School Managing Committee.
17. Although, the writ petition could have been closed in view of the appointment of the Petitioner by the aforesaid order dated 9.8.2010 but having regard to the facts and circumstances involved in the case and the political interference in the matter of public employment, I felt it necessary to place on record the facts involved and findings of the court.
18. Since it is the stand of the Respondent No. 7, i.e., the Education Minister that his DO letter referred to above was not a direction for appointment of the Respondent No. 6 but was only to consider the grounds urged by the Respondent No. 6 in his application, I deem it appropriate to refer to the records produced by Mr. Pathak, learned Standing Counsel, Education.
19. The aforesaid records have revealed that there are resolutions adopted by the Managing Committee of the School in its meeting held on 21.9.2009, 25.10.2009, 8.11.2009, 22.11.2009, 28.11.2009, 15.5.2010 urging upon the Authority to appoint the candidate on the basis of merit. However, in the meantime, the candidature of the Respondent No. 6 was backed by the aforesaid DO letter dated 7.5.2010 addressed to the Deputy Director, Sanskrit Education by the Minister, Education. As reflected in the DO letter, the letter was written pursuant to the recommendations of the 2(two) political authorities indicated in the letter.
20. The file produced by Mr. Pathak, learned Standing Counsel, Education, apart from containing the above quoted DO letter of the Minister also contains the letters addressed to the Minister, Education by the said two political authorities, which find mention in the DO letter, as well as the recommendation of the Youth Wing of the same political party certifying that the Respondent No. 6 is a member of the Youth Wing of the said political party. Accordingly, request was made for his appointment. Acceding to the said request, the Education Minister addressed the said DO letter dated 7.5.2010 to the Deputy Director, Sanskrit Education, enclosing therewith all the aforesaid documents. Situated, thus, the Respondent No. 3, i.e., the Deputy Director had no other option than to appoint the Respondent No. 6 ignoring the selection already conducted by the Selection Committee pursuant to a regular selection.
21. Above is the manner and method in which the appointment of Respondent No. 6 got materialised making a mockery of the entire selection process in which altogether 63 candidates had participated.
22. Those at the helm of affairs, talk about good and viable education policy, transparency and fair play and avoidance of nepotism, favouritism, etc., in the matter of selection and appointment but in reality the position is, as reflected in the aforesaid narration of facts. Although, it was submitted by Mr. K.H. Choudhury, learned senior counsel representing the Education Minister that the said Minister had never recommended for appointment of the Respondent No. 6 but had only urged upon the Respondent No. 3 to consider the grounds stated in the application, but when the grounds stated in the application are coupled with the most important ground that the said application had the recommendation of two political authorities reflected in the letter itself and the recommendation of the Youth Wing of the same political party and also when it was made known that the Respondent No. 6 is an active worker of the said political party, in the Indian system of bureaucratic pattern of working, the Respondent No. 3 thought it prudent to appoint the Respondent No. 6 in the post for which advertisement was already issued and selection was already conducted. As to what was the result of the said selection, has been noticed above.
23. During the course of hearing, a submission was made by Mr. K.H. Choudhury, learned senior counsel that since the impugned order of appointment in favour of the Respondent No. 6 is said to be based on the aforesaid DO letter of the Education Minister but in reality it is not so, appropriate disciplinary action against the Respondent No. 3 would follow. However, on being asked as to what action should be taken against the Education Minister who had addressed the said DO letter, although he had no authority to write such a letter in the matter of public employment interfering with the selection process, there was no answer to that. At a latter point of time, Mr. Choudhury submitted that since the Petitioner has already been appointed on his own merit resulting in happy end to the entire episode, there will be no victimisation of any one.
24. While it is true that the Respondent No. 3 ought not to have mortgaged his conscience to the Minister towards appointment of the Respondent No. 6 bypassing the selection and merit, but it will also have to be borne in mind that the bureaucrats at certain level are to work under some amount of political pressure. There is always a danger of victimisation if they do hot listen to the political bosses and/or the power that be. In the instant case, such a course of action was made known to the court when a submission was made on behalf of the Respondent No. 7 that appropriate action would be taken against the Respondent No. 3 for naming the Minister in the impugned order. While noticing the following observations of the Apex Court in
In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In
25. The present case is only a single instance of political interference in the matter of public employment. If the departmental Minister involves himself in the above manner for a solitary post of teacher, the situation can well be imagined when it involves large scale appointments. Consequently, the general perception mentioned in the opening paragraph of this judgment is bound to be deeply rooted in the minds of the job aspirants, the resultant affect of which can also well be imagined.
26. It is only expected that there will be no such recurrence of political interference in the matter of public employment and each and every eligible candidate will be considered on his/her own merits and performance and not on extraneous considerations. It must be remembered that anything opposed to reasonableness is an anti-thesis to law. The administrative or quasi-judicial authority clothed with the power of selection and appointment, ought to be left unfettered for advancement of fair play, good conscience and equity.
27. Although the Petitioner has been appointed by the aforesaid order dated 9.8.2010, it has been stated in the order that the appointment is subject to the outcome of the writ petition. The outcome is, as recorded in this judgment and order. The Petitioner being the selected candidate occupying the merit position No. 1 for the post of Graduate Teacher (Arts) in the aforesaid Sanskrit Tol, there cannot be any deprivation of him from the said appointment, more particularly, when the ground of deprivation has been interfered with.
28. The writ petition is allowed. The impugned order dated 11.5.2010 is set aside and quashed. The Petitioner who has already been appointed by the aforesaid order dated 9.8.2010 will be entitled to all the consequential benefits.
29. Since the Petitioner was unnecessarily forced to approach this Court at the very threshold of his service career as he was sought to be illegally deprived of his appointment, while allowing the writ petition, a cost of Rs. 5,000 (Rupees five thousand) only is awarded which shall be borne by the Respondent Nos. 3 and 7 in equal shares. The Registry shall realize the amount in accordance with rules unless deposited voluntarily.
