Gobinda Chandra Kalita Vs the State of Assam and 2 Ors.

Heard Mr. D. Deka, learned counsel for the petitioner and Mr. B. Goswami, learned Additional Advocate General, Assam assisted by Mr. P. Kakoti, learned counsel and Ms. S. Konwar, learned Junior Government Advocate, Assam for the respondent nos. 1 & 2.

¶21

When the writ petition was moved on 19.02.2025, there arose a question of maintainability of the writ petition under Article 226 of the Constitution of India in view of the nature of relief sought for by the writ petitioner in this writ petition.

¶22

The petitioner has stated that he is presently serving as an Assistant Teacher in the Railway High School at New Guwahati. The petitioner has stated that the petitioner is a member of one association named Assom Madhyamik Siksha Aru Karmachari Sangha , which he has stated to be a registered and recognized association of the Government of Assam. The petitioner has further stated that the association, Assom Madhyamik Siksha Aru Karmachari Sangha is a member of the respondent no. 3, namely, Sadou Assam Karmachari Parishad .

¶23

The petitioner has further stated that the respondent no. 3 association came to be formed in the year 1981 and the respondent no. 3 adopted its Constitution on 12.05.1981 at its Diphu Convention. The petitioner has highlighted that Chapter – 1 of the Constitution of the respondent no. 3 has laid down its objectives and also about the criteria to be fulfilled for its membership.

¶24

Page No.# 3/8

¶25

The petitioner has referred to an Office Memorandum bearing no. ABP. 157/86/139 dated 19.09.1991, issued by the Personnel [B] Department, Government of Assam, to make the following prayer :-

¶26

In the premises aforesaid, it is therefore respectfully prayed that Your Lordships may be pleased to admit this petition, call for the records and issue a Rule calling upon the respondents to show cause as to why appropriate Writ[s] should not be issued directing the respondent authorities to take appropriate and immediate action to mitigate the grievances raised in representation dated 17.1.2025 and be further pleased to direct the respondents to show cause as to why directions should not issued to the respondent authorities to take necessary steps to declare the present executive committee as illegal for it has been formed without adhering to the mandate of the extant Rules and on such causes be shown by the respondents and upon hearing the parties, this Hon'ble Court may be pleased to direct the respondent authorities to take appropriate and immediate action to mitigate the grievances raised in representation dated 17.1.2025 and be further pleased to direct the respondents authorities to take necessary steps to declare the present executive committee as illegal for it has been formed without adhering to the mandate of the extant Rules and / or pass any such order[s] as this Hon'ble Court may deem fit and proper.

¶27

It is noticed that the petitioner has sought for a writ in the nature of mandamus for directions to the respondent authorities to take appropriate and immediate action on the representation, stated to have been submitted by him on 17.01.2025, and to take necessary steps to declare the present Executive Committee of the respondent no. 3 as an illegal one as the present Executive Committee is allegedly formed without adhering to the mandate contained in the Office Memorandum dated 19.09.1991.

¶28

Page No.# 4/8

¶29

In order to understand the background in which the petitioner has sought the directions, it appears apposite to refer to the Office Memorandum dated 19.09.1991 at first. The Office Memorandum dated 19.09.1991 is the Personnel [B] Department, Government of Assam. In the Office Memorandum, it is mentioned that it had become necessary, after the amendment of Rule 23 of the Assam Civil Services [Conduct] Rules, 1965, to lay down the procedure for recognition of association, grant of special casual leave for attending association’s meeting, etc. As per the procedure so laid down, every association representing, or purporting to represent, Government Servants shall have to be duly recognized by the Government and no official recognition is to be given to an association which do not comply with the conditions laid down herein. One of the conditions for recognition of a service association is that the membership of the association should be confined to Government Servants only and its office bearers including the President, should be selected or elected from its members.

¶30

The case of the petitioner is that the respondent no. 3 had carried out certain amendments in its Constitution in the years, 2005 and 2016 whereby provisions have been inserted to induct former office-bearers of the respondent no. 3 as Advisors in the State and the District Committees of the respondent no. 3. The respondent no. 3 had therefore, sought approval from the State Government in respect of those amendments in the Constitution of the respondent no. 3. According to the petitioner, such amendments are not in conformity with one of the criteria for recognition that the membership of an Association, to be recognized by the Government, should be confined to only Government servants. Highlighting the amendments in the Constitution of the respondent no. 3, the petitioner submitted a Representation dated 17.01.2025 before the respondent no. 1 to declare the present Executive Committee of the

¶31

Page No.# 5/8

¶32

respondent no. 3 as an illegal one and to issue necessary direction to the respondent no. 3 to constitute a new Executive Committee as per its original Constitution, which permitted inclusion of only Government servants as members.

¶33

The Office Memorandum dated 19.09.1991 was issued after substitution of Rule 23 of the Assam Civil Services [Conduct] Rules, 1965 vide a Notification no. ABP.157/86/138 dated 19.09.1991, which was published in the Assam Gazette in its issue dated 20.11.1991. Prior to the substitution, Rule 23 of the Assam Civil Services [Conduct] Rules, 1965 had the nominal heading, ‘Membership of the Service Association and Recognition of Association of Non Industrial Government Service’, and it provided that no Government Servant shall be a member, representative or officer of any association representing or purporting to represent Government servant unless such association was recognized. The original Rule 23 had further provided that no official recognition shall be given to such association which did not comply with the conditions laid down therein. After Rule 23 of the Assam Civil Services [Conduct] Rules, 1965 was substituted by a new Rule vide Notification bearing no ABP.157/86/138 dated 19.09.1991, there is no statutory provision in the Assam Civil Services [Conduct] Rules, 1965 for recognition of any Service Association. It was after the Notification no. ABP.157/86/138 dated 19.09.1991, the Office Memorandum no. ABP.157/86/139 dated 19.09.1991 was issued. The Office Memorandum bearing no. ABP.157/86/139 dated 19.09.1991 is not a notification in terms of any statutory provision, meaning thereby, it does not have any statutory force.

¶34

To press the writ petition, the petitioner has referred to two other Office Letters bearing no. eCF No. 312204/94 dated 04.05.2024 and bearing no. eCF

¶35

Page No.# 6/8

¶36

No. 312204/278 dated 17.08.2024 of the Personnel [B] Department, Government of Assam, addressed to the President/Secretary General of the respondent no. 3 on the subject, ‘Prayer for ex-post facto approval on the amendments of the SAKP Constitution made in the year, 2005 and 2016 and violation of Government rules and regulations – reg’.

¶37

From the contents of the afore-mentioned two Office Letters, it transpires that the respondent no. 3 made proposals for amendments in its Constitution in the years, 2005 and 2016 whereby the provisions had been inserted for inclusion of former office-bearers as Advisors in the State and District Committees of the Association. Noticing that on the strength of the said provision, retired Government employees who were earlier office-bearers of the respondent no. 3 could be inducted in the State and District Committees of the respondent no. 3 without voting rights, the Personnel [B] Department, Government of Assam requested the respondent no. 3 to bring amendments in the Constitution of the respondent no. 3 so as to confine its membership to Government employees only and not to include any retired Government employees who served as office bearers-earlier, in the capacity of Advisors in any State or District Committees of the respondent no. 3. By the Office Letters, the respondent no. 3 was also requested to bring any amendment proposal to the notice of the Chief Secretary to the Government of Assam. The Personnel [B] Department had thereby, requested the respondent no. 3 to come up with modified amendment proposals for concurrence and operationalization.

¶38

As already noted above, the Office Memorandum dated 19.09.1991 is not a statutory notification and in the considered view of this Court, the procedure laid down therein for recognition of Association cannot be enforced by

¶39

Page No.# 7/8

¶40

instituting a writ petition. What has emerged from the Office Memorandum dated 19.09.1991 is that the Government can accord recognition to a Service Association of Government servants like the respondent no. 3 provided the Service Association complies with the conditions laid down in the Office Memorandum dated 19.09.1991. As a corollary, the Government would also have the authority withdraw the recognition, if the Association does not comply with the conditions laid down in the Office Memorandum dated 19.09.1991. It does not flow from the Office Memorandum dated 19.09.1991 that Government of Assam in the Personnel [B] Department would also have the power and authority on the respondent no. 3 to force it to changes in its Constitution in the manner the Government desires. Meaning thereby, the State Government does not have any power, authority and jurisdiction to change the Constitution or any of the Bye-Laws of a Service Association like the respondent no. 3.

¶41

The petitioner is silent as to whether the respondent no. 3 is a registered association or not. The petitioner has also not annexed any supporting and convincing material in support of registration of the association, Assom Madhyamik Siksha Aru Karmachari Sangha , which he claims to be a registered entity and is a recognized association of the Government of Assam. The petitioner is also silent in what manner Assom Madhyamik Siksha Aru Karmachari Sangha is a member of the respondent no. 3.

¶42

Since the State Government is found to have lacked any authority and jurisdiction to compel the respondent no. 3 to change the Constitution or to bring modifications/changes to the amendments in the Constitution already carried out by it in the years, 2005 and 2016 whereby former office-bearers and retired Government employees had been permitted to be inducted as Advisors in

¶43

Page No.# 8/8

¶44

the State and District Committees of the respondent no. 3, a direction to act as per the prayer made by the petitioner in its Representation dated 17.01.2025 is not called for. What cannot be done directly, cannot be done indirectly. In the Representation dated 17.01.2025, the petitioner has projected that the respondent no. 3 has disobeyed the directive contained in the Office Letters, dated 04.05.2024 & dated 17.08.2024, of the Personnel [B] Department, Government of Assam. Other than granting recognition and withdrawing recognition to a Service Association like the respondent no. 3, the State Government does not have any authority and jurisdiction to change the Constitution or any Bye-Law of a private Service Association entity like the respondent no. 3 or for that matter, to compel it to change the Constitution or any of its Bye-Law. At the most, it can make a request to the respondent no. 3 to bring appropriate changes in its Constitution. The State Government does not wield any power to declare an executive committee of an association of persons like the respondent no. 3 as illegal, when such executive committee has been formed in accordance with the Constitution and the Bye-Laws, if any, of the respondent no. 3 which is purely an internal affair of the respondent no. 3.

¶45

For seeking a direction in the nature of mandamus, the petitioner should have a legal right to assert and there must be a corresponding legal obligation of the part of the State. Both the aspects are found to be lacking in the instant writ petition. Consequently, the writ petition is found bereft of any merits and the same is accordingly, dismissed.

¶46

JUDGE

¶47

Comparing Assistant

Gobinda Chandra Kalita v. the State of Assam and 2 Ors.

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Gobinda Chandra Kalita v. the State of Assam and 2 Ors.

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