IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:

MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)

WP(C) No.2184/2010

1.Shri Manabendra Sarma, Son of Sri Sarat Ch. Sarma, Resident of Durga Sarobar, Kamakhya Gate, P.O. Bharalumukh, District- Kamrup, Assam. 2.Shri Khargeswar Bora, Son of Late Nareswar Bora, Resident of Vill & P.O.-Tulashimukh, District- Nagaon, Assam. 3.Shri Mukut Deka, Son of Late Bhagawan Ch. Deka, Resident of Ananda Nagar, Bye-Lane No.1, P.O. Noonmati, District- Kamrup, Assam. 4.Shri Utpal Tamuly, Son of Sambhu Ram Tamuly, Resident of Vill-Abhaypur, P.O.- College Nagar, Guwahati-31, District- Kamrup, Assam. 5.Shri Paban Kumar Hazarika, Son of Sri Joynath Hazarika, Village-Bisoyachook, P.O. Puranigudam, District- Nagaon. 6.Shri Nipan Mahanta, S/o Sri Sarat Ch. Mahanta, Resident of Vill & P.O.-Sualkuchi, District- Kamrup, Assam.

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7.Shri Apurba Kr. Baruah, Son of Sri BN Baruah, Resident of Village- Kachalukhowa, P.O.-Nagaon, District- Nagaon, Assam. 8.Shri Mriganka Kumar Baruah, S/o Shri Jugal Mohan Baruah, Resident of Hatigaon, Guwahati, District- Kamrup. 9.Shri Ashim Jyoti Moral, C/o Dr. Bhagaban Moral, Fatasil G.S. Colony, Guwahati, District- Kamrup. 10.Shri Jitu Moni Hazarika, C/o Shri Thuleswar Hazarika, Village & P.O.-Debnarikali, District- Nagaon. 11.Shri Pranab Kumar Sarmah, S/o Late Guna Ram Sarmah, Village & P.O.-Borangutoli, District- Nagaon. 12.Shri Iftikar Rahman, Son of Rejifur Rahman, Resident of Vill- Ghutulai Patty, Haibargaon, District- Nagaon, Assam. 13.Shri Dipjyoti Saikia, Son of Sri Munindra Nath Saikia, Resident of Town Panigaon, Nagaon, District- Nagaon, Assam. 14.Shri Deba Prasad Bora, Son of Sri Bapi Ram Bora, Resident of Vill-Maukhati, PO-Ronthali, District- Nagaon, Assam.

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15.Mrs. Tilu Khataniar, Daughter of Late Duti Khataniar, Resident of Vill-Maukhati, PO-Ronthali, District- Nagaon, Assam. 16.Smti Riju Moni Bora, Daughter of Lalit Ch. Bora, Resident of Vill-Poruagaon, PO-Biharigaon, District- Nagaon, Assam. 17.Shri Gobinda Sarma, Son of Sri Agni Sarma Resident of Vill-Jyoti Nagar, PO-Bokakhat, District- Golaghat, Assam. 18.Shri Madhab Ch. Goswami, Son of Late Hirendra Nath Goswami, Resident of Vill-Namgaon, PO-Borbhogia, District- Nagaon, Assam. 19.Shri Jiten Bora, Son of late Ghanasyam Bora, Vill & PO-Kuwarital, District- Nagaon, Assam. 20.Shri Ranjit Borah, Son of Giri Kanta Borah, Resident of Vill-Teliagaon, PO- Pubthuria, District- Nagaon, Assam. 21.Shri Santanu Kumar Baruah, Son of Late Nanda Nath Baruah, Resident of Bamunimaidam, Opposite FCI Go down, Guwahati, District- Kamrup, Assam. 22.Shri Rohini Kanta Kalita, Son of Nagen Kalita, Resident of Vill-Fatepur, PO-Agia, District- Goalpara, Assam.

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23.Smti Irani Borah, Wife of Pulin Ch. Borah, Assam Tribune Office, Guwahati-3, District- Kamrup, Assam. 24. Shri Mrinmoy Kr. Bora, Son of Sri Sachi Kanta Bora, Resident of RRB Road, South Haiborgaon, District- Nagaon, Assam. 25.Shri Dharmeswar Hazarika, Son of Late Dambaru Hazarika, Resident of Vill-Nam Kariyani, District- Nagaon, Assam. 26.Shri Akhtarul Alam, Son of Late Nurul Islam, Resident of Azad Nagar, PO-Suta Haibar, District- Nagaon, Assam. 27.Shri Dhrubajyoti Sarma, Son of Sri PC Sarma, Resident of Jatia Path, Guwahati, District- Kamrup, Assam. 28.Shri Gautam Gogoi, Son of Sri Moniram Gogoi, Resident of Dimowguri, Nagaon, District- Nagaon, Assam.

… PETITIONERS -Vs.-

1. The State of Assam represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati.

2. The Commissioner & Secretary

to the Government of Assam, Secretariat Administration Department, Dispur, Guwahati.

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3. The Commissioner & Secretary to the Government of Assam, Personnel, GAD, SAD Department, Dispur, Guwahati.

..…..RESPONDENTS

WP(C) No.5645/2010

1.Sri Mukut Ranjan Sarma, Son of Sri Homeswar Sarma, Resident of Village- Nonoi, Muragaon, District-Nagaon, Assam. 2.Sri Kamaludddin Ahmed, Son of Late Abu Bakkar Siddik, Resident of Village & P.O.-Rupahi, Police Station-Rupahi, District- Nagaon, Assam. 3.Sri Alokesh Bora, Son of Late Padma Kanta Bora, Resident ofVillage & PO-Katonigaon, District- Nagaon, Assam. 4.Sri Rajib Bora, Care of Sri Jiten Kalita, Resident of Village- Paschim Jolah, Police Station- Nagaon Sadar, District- Nagaon, Assam. 5.Md. Farizul Haque, Son of Late Kamaluddin Ahmed, Resident of Parul Baruah Path, Near Railway Station, Police Station-Nagaon Sadar, District- Nagaon, Assam. 6.Sri Naba Borkotoky, Son of Late Hem Chandra Borkotoky, Resident of Industry Road, PO-Gopal Bazar, Police Station-Nalbari, District- Nalbari, Assam.

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7.Sri Ratul Mahanta, Son of Sri Dharani Dhar Mahanta, Resident of Village- Bardadhi, P.O.-Gerua, Police Station-Hajo, District- Kamrup, Assam. 8.Sri Budheswar Saikia, Son of Late Ananda Chandra Saikia, Resident of Village-UIuoni, PO-Rupahi, District-Nagaon, Assam. 9.Sri Nabajyoti Sarmah, Son of Sri Debendra Nath Sarmah, South Hazarpur Railway Gate, Opposite Employment Exchange, PO-Tezpur, District- Sonitpur, Assam. 10.Sri Dipak Sarma, Son of Sri Khagendra Nath Sarma, Resident of House No.2, Bye-Lane No.M7, Near Post Office, Rupnagar, Guwahati, PIN-781032, District- Kamrup (Metro) Assam. 11.Sri Anil Sarma, Care of Sri Akhil Sarma, O/o The Principal, Gauhati Medical College, Narakasur Hill Top, PO-Indrapur, Guwahati, Pin-781032, District- Kamrup (Metro), Assam. 12.Sri Rajib Choudhury, Son of Sri Deben Das, Resident of East Jyotinagar, PS-Noonmati, Guwahati, PIN-781020, District- Kamrup (Metro), Assam.

-Vs.-

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1. The State of Assam represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati-781006, District-Kamrup (M), Assam.

2. The Commissioner & Secretary

to the Government of Assam, Secretariat Administration Department, Dispur, Guwahati-781006, District-Kamrup (M), Assam.

3. The Commissioner & Secretary

to the Government of Assam, Personnel Department, Dispur, Guwahati-781006. District-Kamrup (M), Assam.

..…..RESPONDENTS

B E F O R E

HON’BLE MRS JUSTICE ANIMA HAZARIKA

In WP(C) No.2184/2010 Advocates for the petitioners : Mr. PK Goswami,

Senior Advocate

Mr. M Bhuyan, Mr. S Sarma, Mr. P Hazarika.

Advocates for the respondents : Mr. RK Bora,

Addl. Senior Govt.

Advocate, Assam

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In WP(C) No.5645/2010 Advocates for the petitioners : Mr. M Choudhury, Mr. A Gogoi.

Advocates for the respondents : Mr. RK Bora,

Addl. Senior Govt.

Advocate, Assam Date of hearing : O2.05.2012 &

01.06.2012

Date of delivery of judgment : 01.06.2012.

JUDGMENT AND ORDER (ORAL)

Both these writ petitions are proposed to be disposed of by

this common judgment and order as they involve similar question

of facts and law.

2. In both the writ petitions, the order dated 9.3.2010 whereby

and whereunder the petitioners‟ services were terminated by the

Commissioner and Secretary to the Government of Assam in the

Secretariat Administration Department have been impugned.

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3. Heard Mr. PK Goswami, learned Senior counsel assisted by

Mr. M Bhuyan, Advocate, in WP(C) No.2184/2010 filed by 28

petitioners and Mr. M Choudhury, learned counsel in WP(C)

No.5645/2010 filed by 12 petitioners. Also heard Mr. RK Bora,

learned Additional Senior Govt. Advocate for the State respondents

and perused the records made available before this Court.

4. The admitted facts leading to issuance of this cumulative

impugned order may be summarized as follows:

a. The writ petitioners on being subjected to a selection

process were appointed in the posts of Lower Division

Assistants (LDA for short) in the Assam Secretariat under the

Secretariat Administration Department, Govt. of Assam on

Ad hoc basis with full time scale of pay. By different office

orders but containing similar Office Memo

No.S(E)/70/2001/3 dated 30.03.2001 issued by the

Commissioner & Secretary to the Government of Assam,

Secretariat Administration: Estt. Department. The

petitioners were appointed temporarily as LDA against ckear

vacancies under Secretariat Administration Department on

Ad hoc basis. In the appointment orders it was clearly

mentioned that the same were issued with due clearance of

SLEC, i.e. State Level Empowered Committee. However,

these appointment orders stood cancelled after the writ

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petitioners have reported for joining in their posts vide

Orders contained in NO. S(E)70/2001/30 dated 19.05.2001

issued by the Chief Secretary to the Government of Assam on

the ground that:

(i). the appointments were made in gross

violation of the provisions of Assam Secretariat

Subordinate Service Rules, 1963 („Rules‟ for short),

inasmuch as, under the said Rules the Chief Secretary

is the appointing authority of the Lower Division

Assistants while the appointments orders in question

were made by the Commissioner & Secretary,

Secretariat Administration Department,

(ii) Appointments were made without the

knowledge of the Chief Secretary and,

(iii) That the relaxation of the Rules for making

appointment was illegal.

5. These orders came to be challenged before this Court by a

series of writ petitions, viz. W.P.(C) Nos. 3677/2001, 4299/2001,

4303/2001, 4324/2001, 4327/2001 & 4354/2001 which stood

dismissed by order dated 28.09.2001, passed by a Single Bench of

this Court. The judgment of the Single Bench being challenged in

W.A. Nos. 429/2001, 430/2001, 431/2001, 432/2001 & 436/2001,

Division Bench of this Court allowed the said appeals vide

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judgment and order dated 16.09.2002, setting aside the judgment

and order dated 28.09.2001 passed in the writ petitions as well as

the impugned order of cancellation dated 19.05.2001 with a

direction to the State respondents to take back the writ

appellants/writ petitioners in service within a period of 3 weeks

from the date of receipt of certified copy of the Judgment and

order passed in the writ appeals by issuing necessary orders,

without, however, payment of any arrear salary. The judgment of

the Division Bench was based on the principal premise that the

impugned orders of cancellation of appointments having involved

civil consequences depriving the legitimate rights of the

appointees, the termination of services without giving prior notice

and opportunity to the appellants/writ petitioners were bad in

law. One of the grounds of issuance of the termination orders on

the reason of wrong relaxation of the Rules has been answered by

the Division Bench to the effect that while it is not disputed that

there is a relaxation clause in the related recruitment Rules, the

same was relaxed so as to achieve effective implementation of the

good Policy of the Government i.e., special recruitment.

6. The writ appellate judgment of this Court dated 16.09.2002

having been challenged by the State Authorities before the Hon‟ble

Supreme Court vide Civil Appeal Nos. 8305-09 of 2003, the said

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appeals were disposed of by the Apex Court vide judgment & order

dated 19.11.2009 holding as thus;

“……..The High Court in the impugned order has held

that before canceling the appointments the respondents

should have been given an opportunity of hearing. We agree

with this observation of the High Court. Hence, we see no

reason to interfere with the impugned judgment and order

of the High Court. It is open for the State Government to

now give an opportunity of hearing to the respondents and

thereafter pass appropriate orders. We direct that the State

Government shall pass such orders latest by 31st January,

2010 after giving opportunity of hearing to the respondents.

If no orders are passed by the State Government by the said

date, respondents will be reinstated forthwith.”

7. The said time limit of 31.01.2010 was extended upto

15.03.2010 by a subsequent order of the Apex Court dated

29.01.2010. Thereafter, in terms of the aforesaid observation of

the Hon‟ble Apex Court, fresh notices were issued on the writ

Petitioners on 18.12.09 and thereafter in supersession thereof on

22.01.2010 again fresh notices were issued to the petitioners. The

text of the said notice is quoted hereunder :

“….In pursuance of the judgment and order dated 19-11-

2009 passed by the Hon‟ble Supreme Court of India in Civil

Appeal No. (S) 3805-3809 of 2003 (State of Assam –Vs-

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Khargeswar Bora and others) regarding appointment of

Lower Division Assistant and in continuation of this

department‟s Notice No. S(E) 102/2001/pt.IV/213 dated 18-

12-2009 and in consideration of the representation received

from the respondents in pursuance of the said notice it is

felt necessary to issue a fresh notice. Accordingly this notice

has been issued as below :-

I, Shri Khargeswar Bora, S/o Late Nareswar Bora, 2.

Shri Mukut Deka, S/o- Late Bhagawan Ch. Deka, 3. Shri Amal

Ch. Das, S/o Sri Lohit Ch. Das, 4. Sri Utpal Tamuly, S/o-

Sambhu Ram Tamuli, 5. Shri Dipak Talukdar, S/o- late

Gopinath Talukdar, 6. Sri Manabendra Sarma, S/o- Sri Sarat

Ch. Sarma, 7. Sri Nipon Mahanta, C/o- Sri Sarat Ch.

Mahanta, 8. Sri Apurba Kr. Barua, S/o Sri BN Barua, 9. Shri

Iftikar Rahman, S/o- Rejibur Rahman, 10. Sri Dipjyoti saikia,

S/o- Sri Munindara Nath Saikia, 11. Sri Deba Prasad Bora,

S/o- Sri Bapi Ram Bora, 12. Mrs. Tilu Khataniar, D/o- Late

Duti Khataniar, 13. Smti Riju Mani Bora, D/o- Lalit Ch. Bora,

14. Sri Ajit Nath, S/o- Biren Kr. Nath, 15. Sri Mukut Ranjan

Sarma, S/o- Homeswar Sarma, 16. Shri Kamaluddin Ahmed,

S/o- Abu Bakkar Siddik, 17. Sri Gobinda Sarma, S/o-Agni

Sarma, 18. Sri Madhab Ch. Goswami, S/o- Late Hirendra

Nath goswami, 19. Sri Jiten Bora, S/o- Late Ganashyam

Bora, 20. Sri Ranjit Borah, S/o- Giri Kanta Bora, 21. Sri

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Rohini Kanta Kalita, S/o- Nagen Kalita, 22. Sri Alokesh

Borah, S/o- Late Padma Kanta Bora, 24. Smti Irani Borah,

W/o- Pulin Ch. Borah, 24. Sri Mrinmoy Kr. Bora, S/o- Sri

Sachi Kanta Bora, 25. Sri Dharmeswar Hazarika, S/o- Sri

Dambaru Hazarika, 26. Sri Akhtarul Alam, S/o- Nurul Islam,

27. Sri Bolin Sarma, S/o- Late Ganesh Ch. Sarma, 28. Sri

Dhrubajyoti Sarma, S/o- PC Sarma, 29. Md. Farizul Haque,

S/o-Late Kamaluddin Ahmed, 30. Sri Ritu Raj Dutta, S/o- Sri

Dwijendra Nath Dutta, 31. Sri Gautam Gogoi, S/o- Sri

Moniram Gogoi, 32. Sri Rajib Bora, S/o- Sri Jiten Saikia.

Whereas you were appointed temporarily as a Lower

Division Assistant in the Assam Secretariat Subject to

discharge without notice and without assigning any reason

thereof vide the Secretariat Administration Department

order dated 30th March, 2001 and whereas.

(1) Your appointment order was issued in gross

violation of the Assam Secretariat Subordinate Services

Rules 1963 and without following proper procedures and

norms.

(2) These appointment orders were issued in gross

violation of the said Rules as the Chief secretary to the

Government of Assam, who is the Appointing Authority

under the Rules, was neither consulted nor informed about

the issuance of Appointment Orders.

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(3) As per Rule 11 A of the said Rules, due clearance

for the Selection Committee constituted by the Appointing

Authority has to be obtained, which was not adhered to in

the present case.

(4) Select list was not placed before the Appointing

Authority for his approval.

(5) Ex-post facto approval given by the Cabinet for

such appointments was not backed by the law as the said

Rules does not provide for relaxation of

recruitment/appointment rules by the Cabinet.

(6) The Cabinet Memorandum dated 12-04-2001 for

appointment placed before the Cabinet was not routed

through the Chief Secretary, but was placed to the Cabinet

by the Commissioner & Secretary to the Government of

Assam, Personnel Department.

(7) Relaxation of the Rules made for appointment was

illegal.

Therefore, you are required to show cause as to why

the said appointment order will not be cancelled. You are

hereby requested to submit written representation in

support of your claim, if any and also appear personally

before the Commissioner & Secretary, Secretariat

Administration Department and attend hearing on 28-01-

2010 at 11 am in the Conference Hall of General

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Administration Department in the 2nd Floor of „A‟ Bloc,

Assam Secretariat, Dispur, Guwahati.”

8. The Writ Petitioners responded to the aforesaid notices by

way of representations contending inter alia, that the grounds

raised in the Notice dated 22.01.2010 had already been covered by

the findings of the High Court and affirmed by the Hon‟ble

Supreme Court. As such, the grounds mentioned in the Notice

amounted to overreaching the judgments in question, as the same

had already been rejected and such rejection has also attained

finality. In support, reliance was placed upon the findings and

observations recorded in the common judgment rendered in the

writ appeals, by quoting the relevant portions of paragraphs 8, 9,

10 and 14 thereof. It was also contended that the Apex Court did

not interfere with the said findings and the same still holds good

and has attained finality.

9. However, without considering the representations so filed,

the impugned office order No.S(E).102/2001/Pt.IV/269 dated

09.03.2010, under challenge in these writ petitions, were passed

by the Commissioner & Secretary to the Government of Assam in

the Secretariat Administration Department treating the

appointment orders of the petitioners as illegal and hence

cancelled. While passing the impugned order, the State Authorities

stuck to its earlier decision of canceling the appointment orders

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holding the same “ab initio void and illegal” on the plea that the

same “were made exercising the power of relaxation of conditions

of recruitment arbitrarily in the garb of the said policy decision.”

The findings of facts recorded in the order dated 09.03.2010

reveals that the approval of the State Level Empowered Committee

was also taken to fill up the vacant posts and that the Chief

Secretary was the Chairman of the said State Level Empowered

Committee. However, it is contended in the order that although at

the relevant point of time the Chief Secretary to the Government

of Assam was the appointing authority for the posts in question

under the Rules, the appointment orders were issued without

consulting the Chief Secretary and his approval was not taken. The

cancellation of appointments are sought to be justified on the

premise that the approval of the Chief Secretary as the Chairman

of the State Level Empowered Committee is construed to be

confined to allowing vacant posts to be filled up without any

further reference to appointment of specific persons while the

actual appointments are to be made by the corresponding

authorities as per the existing rules. Thus, it is contended in the

order dated 9.03.2010 that the Chief Secretary as the appointing

authority did not accord approval before the appointment orders

were issued by the Commissioner & Secretary, Secretariat

Administration Department. It is further contended that the

Cabinet Memorandum dated 12.04.2001 was not routed through the

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Chief Secretary making a departure from the rules and norms in

this regard. However, the authenticity, veracity and legality of the

approval given by the State Cabinet in its meeting of 16.04.2001

vide Cabinet Memorandum dated 12.04.2001 are not challenged.

The point regarding approval of the State Level Empowered

Committee is answered in the order dated 9.03.2010 to the effect

that the role of the said committee is limited to clearing the

vacant posts to be filled up meaning thereby that in the absence of

the clearance of the State Level Empowered Committee, no vacant

post of any department can be filled up in any manner by the

appointing authority, thereby trying to make a distinction that the

clearance of the State Level Empowered Committee and the

approval of recruitment and selection are two distinct matters and

can not be substituted for each other.

10. The order dated 9.03.2010 has been challenged by the writ

petitioners mainly on the following grounds :

(I) That the State Authorities had tried to misdirect and

misinform this Court at various stages regarding the

status of approval of State Level Empowered

Committee. While the appointment orders clearly

state that the appointments were cleared by the State

Level Empowered Committee, in earlier series of writ

petitions it was a categorical stand of the respondent

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authorities by way of affidavit that no clearance or

approval was obtained from State Level Empowered

Committee for appointment of 67 LDAs and 1

Lokokanya (Jr.) in Assam Secretariat. However, there

is a clear reversal and change of stand by the State

Government now, inasmuch as, the order dated

09.03.2010 categorically admits of approval of the

State Level Empowered Committee in respect of

appointment made in the 67 posts of Lower Division

Assistants and also the fact the Chief Secretary was in

fact the Chairman of the said State Level Empowered

Committee.

(II) The second ground of challenge is that the impugned

order dated 9.03.2010 is self contradictory in respect

of the role of the Chief Secretary inasmuch as while

the Chief Secretary‟s role and consequent knowledge

of the entire matter right from the stage of State

Level Empowered Committee‟s approval (the Chief

Secretary being its Chairman) to the stage of Cabinet

Approval (Chief Secretary being the Ex Officio

Secretary of the Cabinet) is not denied, the stand that

his approval as appointing authority was not taken in

issuing the appointment orders and that the

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appointment orders were not issued by him contrary to

the Rules cannot be sustained.

(III) The third ground of challenge is that the Commissioner

& Secretary to the Government of Assam Secretariat

and Administration Department who passed the

impugned order dated 9.03.2010 is not competent to

review the State Policy approved by the State Cabinet

in terms of which the appointment orders in question

were made.

11. The plea of the Government regarding the appointment

orders being contrary to Rules for the same having not been issued

by the appointing authority i.e. the Chief Secretary is answered by

the writ petitioner urging that the same Chief Secretary having

accorded the approval of the State Level Empowered Committee

thereby clearing the recruitment process and being a part of the

process of the Cabinet approval being its Ex Officio Secretary can

not now turn volte face on the ground that the appointment orders

were in fact not issued by its seal and signatures. Examples have

been cited as regards appointment orders of various persons under

similar posts in the Assam Secretariat made under the seal and

signature of Deputy Secretary/ Under Secretary to the Personnel

Department. It is further contended that relaxation of rules made,

if any, in the instant case is permissible within the framework of

the said rules itself and the same having been made in respect of a

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class of a person under exceptional circumstances to give effect to

a State policy in public interest, the said relaxation of rules can

not be faulted with.

12. Before answering the grounds of challenge set forth by the

Writ Petitioners, it is also important to note some facts as

appearing in the pleadings. Admittedly the Writ Petitioners are

beneficiaries of a State Policy to rehabilitate the civilians who had

suffered due to militant activities of the State or had extended

help and co-operation to the Government to abate militancy. The

conspicuous presence of a letter issued by the Commissioner &

Secretary to the Government of Assam, Personnel, GAD, SAD

Departments to the General Secretaries of various employees

associations issued on the same day of the date of the termination

orders i.e. 19.05.2001 is also not explained by the State

authorities. However, the argument of the writ petitioners pointing

out malice and extraneous considerations playing behind the

issuance of the termination orders notwithstanding, the

termination orders dated 19.05.2010 and the order dated

9.03.2011 confirming those termination orders have to be tested

on the touchstone of constitutional parameters.

13. Nothing has been brought in complete terms by the State

respondents to establish that the writ petitioners do not possess

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the requisite educational and other qualifications prescribed under

law to hold the post in question. As such, the court will proceed on

the basis of assertions of the writ petitioners that they are all

graduates in different streams and fulfilled the eligibility criteria

laid down under the relevant Rules. The next question is whether

they could have been appointed in the manner as has been done in

the instant case and whether the appointments are de-horse the

Rules and accordingly void ab initio. The State as the employer

had formed the State Level Empowered Committee wherein the

Chief Secretary himself was the Chairman and had cleared

appointment in respect of the posts in question against which the

writ petitioners have been appointed. It is not contested that the

posts were either non-sanctioned or that they were not lying

vacant for recruitment. Admittedly, the Government at the

appropriate level had relaxed the Rules in exercise of its powers of

relaxation available under the Rules itself and the said relaxation is

made in terms of the public policy approved by the State Cabinet

which is the highest collective decision making authority in the

State. The relaxation has been made for a class of persons on

definite qualifying terms within legally known permissible

parameters. The basic qualifications stipulated under the rules for

an appointee has not been relaxed. It is only in the realm of the

source and the process of recruitment that a departure has been

made to give effect to the Cabinet approved public policy which

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remains on record and has not been reviewed or changed. In view

of the same, it is not for the Commissioner & Secretary to the

Government in its Secretariat Administration Department to pass

the impugned order dated 09.03.2010 revalidating the termination

orders dated 19.05.2001 on the grounds stipulated therein. The

State Policy adopted by the Cabinet can not be rescinded by an

Executive Officer of a Government Department on the plea that

the related Cabinet Memorandum on the basis of which the State

Policy stood adopted was not routed through the Chief Secretary;

fact remains that the Chief Secretary being the Ex Officio

Secretary of the Cabinet itself have the full knowledge of the said

Cabinet Memorandum and there is nothing on record to show that

the said Chief Secretary had in any manner disowned the veracity

or genuineness of the Cabinet Memorandum at any stage before or

after its adoption and approval by the State Cabinet on

16.04.2001. The same Chief Secretary is also the Chairman of the

State Level Empowered Committee which cleared the recruitment

process in the post in which the writ petitioners were appointed.

The objection regarding the violation of the rules on this count

stating that neither the Chief Secretary approved of the

appointment orders nor had issued the same is of no avail

inasmuch as the appointment orders were issued after the State

Level Empowered Committee headed by him had approved of the

same and the State Cabinet which formulated the policy under

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which the writ petitioners were appointed acted on the basis of

the Cabinet Memorandum while the same Chief Secretary was its

Ex-Officio Secretary. It has never been the case of the State

Respondents that the particular officer who had issued the

appointment orders had acted on his own individual discretion

without the valid sanction of the higher authorities. The Chief

Secretary under the aforesaid circumstances cannot plead either

his ignorance or disapproval in the process of issuance of the

appointment orders. The allegation of the change of stand being

actuated by change of political power running the State

Government in the intervening period of appointment and

termination orders as alleged by the writ petitioners also has been

taken note of by the Hon‟ble Apex Court in the order dated

19.11.2009. The State policy in terms of which the writ petitioners

were appointed having not been struck down by any subsequent

State Cabinet, it is not for the Commissioner & Secretary of the

Government to disown the said State Policy merely on the

procedural ground of the Cabinet Memorandum not been routed

through the Chief Secretary while the fact remains that the same

Chief Secretary was the Ex-Officio Secretary of the Cabinet

approving the Cabinet Memorandum. The relaxation of the Rules

made under a valid State Policy in terms of relaxation clause

stipulated under the same very set of Rules also cannot be faulted

with. The ground of the appointment orders being illegal for the

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same being not issued by the Chief Secretary is also too fragile to

sustain judicial scrutiny on grounds and the circumstances

discussed hereinabove.

14. The leave graciously granted by the Apex Court to the State

to pass appropriate orders after giving opportunity of hearing to

the respondents is not one of matter of course. Such leave has to

be exercised prudently, reasonably and on grounds based on

acceptable parameters of law. The right of hearing and affording

of opportunity to the affected persons is not a mere compliance of

formality. The records produced by the learned State counsel do

not reveal any enquiry as contemplated by law was initiated. The

manner in which the identity and capacity and the relative powers

to be exercised by the Chief Secretary has been sought to be

severed, cannot be supported in the facts and circumstances of the

case. The knowledge and approval is that of a person holding a

particular post, the same person holding a particular post by virtue

of it holding the said particular post being a party to a process of

approval in a committee cannot later on feign ignorance and plead

disapproval of the same. In fact, on earlier occasion the State

respondents on affidavit had pleaded total nonexistence of the

State Level Empowered Committee‟s approval in respect of the

same very set of appointments while in the order dated 9.03.2010

for the first time the authorities admit the existence of State Level

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Empowered Committee‟s approval, albeit trying to infuse new

explanation to the same to suit their end. It is true that the

executives have to be sentinels of preserving the rule of law in the

State. But the paramouncy of the decision of the State Cabinet and

its implementation cannot be mellowed down under changed

circumstances.

15. The sum total of the aforementioned discussion leads this

Court to the inevitable conclusion that the appointment of the

petitioners made vide orders dated 30.03.2001 cannot be faulted

with. Consequently both the orders dated 19.05.2001 and

9.03.2010 terminating services of the petitioners are set aside and

quashed. Further, the learned counsel appearing for the

petitioners have brought to the notice of this Court the order

dated 6.4.2010 passed by this Court in WP(C) No.2184/2010

whereby, while issuing notice of motion in the said writ petition,

this Court also passed an interim order to the effect that until

further order, 67 posts of LDA in the Assam Secretariat shall not be

filled up without obtaining leave of this Court either by direct

recruitment or selection or promotion. Similar order has been

passed on 8.10.2010 in WP(C) No.5645/2010 also. It has further

been submitted at the Bar that the interim orders so passed by this

Court are continuing till date.

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16. In view of the same, the Government is directed to reinstate

the petitioners in the post of LDA wherein the petitioners were

appointed vide appointment orders dated 30.3.2001 as

expeditiously as possible but not later than 8 (eight) weeks from

today. The petitioners, however, will not be entitled to any arrear

salary for the period they have not worked.

17. The writ petitions accordingly stand allowed with the above

directions.

18. In the facts and circumstances of the case, there shall be no

order as to costs.

JUDGE

Mdb/gunajit