Dismissed

Mrs Bornali Dutta Changmai and Anr. v. the State of Assam and 3 Ors.

Gauhati HC8 Sept 2022WP(C)/6730/2016

Case brief

AI extract

What is this about?

Two writ petitions challenged an order directing the scrapping of a recruitment process by which two candidates lacking the prescribed Stenographer Grade-III qualifications had been appointed and worked since 2008. The court upheld that order and the invalidity of the appointments, and rejected the plea to continue the selection with the remaining qualified candidates.

What the court decided

AI extract

Mrs Bornali Dutta Changmai and Anr. Vs the State of… — Service and Employment | Gauhati HC (2022)

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GAHC010233602016

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

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Case No. : W.P.(C) No. 5430/2016

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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.

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……………… Petitioner

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- Versus -

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The State of Assam, Represented by The Chief Secretary, To The Government of Assam, Dispur, Guwahati-6.

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The Commissioner & Secretary, To The Government of Assam General Administration Department, Dispur, Guwahati-6.

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The Commissioner,

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North Assam Division, Tezpur, District – Sonitpur, Assam, PIN -784001.

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The Additional Secretary, To The Government of Assam, General Administration Department, Dispur, Guwahati-6, Assam.

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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.

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The Under Secretary,

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To The Government of Assam, General Administration Department, Sachivalaya, Dispur, Guwahati - 6.

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The Deputy Secretary, To The Government of Assam, General Administration Department, Sachivalaya, Dispur, Guwahati – 6.

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The Deputy Commissioner, Dhemaji, District – Dhemaji. ……………….Respondents

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Advocates :

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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

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HON’BLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER [Oral]

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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’.

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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 :

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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.

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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-120-5200175-6600-250-7350/- p.m.

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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-EB120-5200-175-6600-250-7350/- 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 :

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“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.

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Let the entire exercise be carried out as expeditiously as possible, preferably within four months from today.”

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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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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.

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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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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.

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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.

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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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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.

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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.

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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. 3010-60-3490-90-3850EB-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.

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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.

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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.

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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.

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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 :

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“Qualification for direct recruitment to the following cadre of the service shall be as prescribed below –

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Stenographer Grade-III –

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1. Passed PU/HSSLC or an equivalent examination of a recognized University or Board.

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1. 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.

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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 1^st 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 :

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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.”

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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.

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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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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.

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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.

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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-120-5200-175-6600-2507350/- 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.

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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.

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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 threejudges bench decision in Ashok Kumar Sharma and others [supra] has observed as under :

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“………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……..”

¶89

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.

¶92

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.

¶93

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.

¶96

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.

¶99

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.

¶100

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.

¶105

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.

¶106

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.

¶111

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.

¶112

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.

¶115

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.

¶118

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.

¶119

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.

¶122

There shall, however, be no order as to costs.

¶123

JUDGE

¶124

Comparing Assistant

Mrs Bornali Dutta Changmai and Anr. v. the State of Assam and 3 Ors.

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Mrs Bornali Dutta Changmai and Anr. v. the State of Assam and 3 Ors.

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