Gauhati High Court
Sringdao Hapila vs The State Of Assam And 6 Ors on 2 February, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/12
GAHC010315832019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/233/2020
SRINGDAO HAPILA
S/O. LT. SUBASH HAPILA, VILL. SENGYA SAMBUDHAN RAJI, P.O. AND P.S.
HAFLONG, DIST. DIMA HASAO, ASSAM-788819.
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY ITS COMM. AND SECY. TO THE GOVT. OF ASSAM, HANDLOOM
TEXTILES AND SERICULTURE DEPTT., DISPUR, GUWAHATI-06.
2:THE COMMISSIONER AND SECY.
GOVT. OF ASSAM
HILL AREAS DEPTT.
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER AND SECY.
GOVT. OF ASSAM
FINANCE (SIU) DEPTT.
DISPUR
GUWAHATI-06.
4:NORTH CACHAR HILLS AUTONOMOUS COUNCIL
REP. BY ITS PRINCIPAL SECRETARY (T)
HAFLONG
DIST. DIMA HASAO-788819.
5:THE ADDL. DIRECTOR OF SERICULTURE
Page No.# 2/12
HAFLONG
DIMA HASAO-788819.
6:THE SUPDT. OF SERICULTURE
HAFLONG
DIMA HASAO-788819.
7:THE DEPUTY SECRETARY
GOVT. OF ASSAM
FINANCE (SIU) DEPTT.
DISPUR
GUWAHATI-06
Advocate for the Petitioner : MR B D DAS
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
02.02.2021 (1) Heard Mr. B.D. Das, learned senior counsel assisted by Mr. D. Thaosen, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned counsel for the respondent No.1, Mr. S.S. Roy, learned Government Advocate, Assam for the respondent No.2 as well as Mr. P. Nayak, learned Standing Counsel, Finance Department for the respondent Nos.3 & 7 and Ms. A Neog, learned Standing Counsel, North Cachar Hills Autonomous Council for the respondent Nos.4 to 6.
(2) The petitioner is aggrieved by non-payment of his salary with effect from his date of joining in the post of Chowkidar in the Office of the CMJ Muoaldam under the Superintendent of Sericulture, Haflong, wherein he was appointed, vide order dated 29.01.2016 issued by the respondent No.5.
(3) In pursuant to the advertisement dated 03.10.2015 issued by the respondent No.5, calling for filling up 14 Nos. of Grade-IV (Peon/ Chowkidar) posts, the petitioner applied for the same. Pursuant to the selection process, the Selection Committee, on the basis of the Page No.# 3/12 marks obtained by the candidates, made a merit list dt.14.12.2015 of 20 candidates, wherein the petitioner was shown to have secured the 15 th position. Thereafter, appointment letters were issued to the first 14 candidates in the merit list on 16.12.2015. However, as the person who secured 9th position in the merit list did not join his post, which was also informed by him to the authorities on 19.12.2015, the petitioner who was in 15 th position in the merit list, was appointed to the 14 the vacant Grade-IV post, vide Office order dated 29.01.2016.
A proposal was sent by the Principal Secretary, North Cachar Hills Autonomous Council (NCHAC) to the respondent No. 2 to sanction payment of the salaries of the 14 new appointees. While sanction for payment of salary for 13 new appointees were approved by the Finance Department, the same was not approved in respect of the petitioner.
(4) The petitioner being aggrieved by non-payment of his salary from the date of his joining to the said post, initially filed a writ petition being WP(C) No. 1364/2019, which was disposed of, vide order dated 28.02.2019, with a direction to the respondent authorities to verify if the petitioner was regularly appointed vide order dated 03.10.2015 and if he had joined the service. This Court held that if the same was found to be true, there was no reason to deny the salary of the petitioner for the service rendered by him.
(5) Subsequent to the order dated 28.02.2019 passed in WP(C) No. 1364/2019, the Principal Secretary, North Cachar Hills Autonomous Council Secretariat, Haflong, Assam issued a letter dated 16.07.2019 to the Under Secretary to the Govt. of Assam, Hills Areas Department, Dispur with a proposal for sanction for payment of salary of the petitioner. Though no reply was forthcoming on the Letter Dated 16.07.2019 issued by the Principal Secretary, North Cachar Hills Autonomous Council Secretariat, Haflong, the petitioner came to learn of the letter dated 05.01.2019 issued by Joint Secretary to the Government of Assam, Hill Areas Department and addressed to the Principal Secretary, NCHAC, which states that as there was a violation of Section 7 (g) of the Assam Fiscal Responsibility and Budget Management Act, 2005, as the select list prepared for fresh appointees to the 14 vacant sanctioned post should have contained names equal to the numbers of notified vacant posts, the proposal to release the petitioner's salary could not be approved. Hence, the petitioner has filed the present writ petition.
Page No.# 4/12 (6) The petitioner's counsel submits that the Govt. of Assam in the Finance Department has not taken any decision with regard to the payment of salary to the petitioner in terms of the order dated 28.02.2019 passed in WP(C) No. 1364/2019, even though the North Cachar Hills Autonomous Council has appointed the petitioner and also given approval for giving him monthly salary. He submits that the reason for non-payment of the salary to the petitioner by the Finance Department is based on a wrong understanding that they have control over a subject which has been transferred to the North Cachar Hills Autonomous Council. He submits that as there is no infirmity with the appointment of the petitioner to one of the 14 vacant Grade-IV posts, the petitioner would have to be paid his salary from the date of his joining in the said post.
(7) Mr. B.D. Das, learned senior counsel for the petitioner submits that in terms of the Notification dated 25.09.1996 issued by the Governor of Assam, the Sericulture Department is a transferred subject, from the State of Assam to the North Cachar Hills Autonomous Council. He also submits that in terms of the OM dated 20.03.2015 issued by the Government of Assam, Finance Department, the State Government has delegated the power for filling up of Grade-III & Grade-IV cadre posts in respect of Transferred Departments to the areas covered by the 6th Schedule, which includes the North Cachar Hills Autonomous Council. As such, the North Cachar Hills Autonomous Council has the power to make it's own selection process and appointments in terms of the OM dated 20.03.2015 and the same cannot be curtailed by the 2005 Act, in view of the Para-6(2) of the 6th Schedule to the Constitution.
(8) Mr. B.D. Das, learned senior counsel for the petitioner submits that the making of the select list/ merit list by the Selection Committee, beyond the number of vacant posts, does not cause any prejudice to any of the parties, inasmuch as, there is a legitimate expectation with the persons who have secured positions beyond the number of notified vacant posts, to be given appointment, when one or more of the persons who could have joined the vacant posts, do not join the service. In this respect, he has relied on a Judgment of the Apex Court in the case of Gujarat State Dy. Executive Engineers' Vs. State of Gujarat and Others., reported in 1994 Supp (2) SCC 591.
Paragraph Nos. 8 & 9 of the Judgment of the Apex Court in case of the State of Gujarat Page No.# 5/12 State Dy. Executive Engineers' (Supra) is as follows:
"8. Coming to the next issue, the first question is what is a waiting list?; can it be treated as a source of recruitment from which candidates may be drawn as and when necessary?; and lastly how long can it operate? These are some important questions which do arise as a result of direction issued by the High Court. A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. How it should operate and what is its nature may be governed by the rules. Usually it is linked with the selection or examination for which it is prepared. For instance, if an examination is held say for selecting 10 candidates for 1990 and the competent authority prepares a waiting list then it is in respect of those 10 seats only for which selection or competition was held. Reason for it is that whenever selection is held, except where it is for single post, it is normally held by taking into account not only the number of vacancies existing on the date when advertisement is issued or applications are invited but even those which are likely to arise in future within one year or so due to retirement etc. It is more so where selections are held regularly by the Commission. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment to any future vacancy which may arise unless the selection was held for it. He has no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and choosing for extraneous reasons.
9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for Page No.# 6/12 appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service."
(9) Mr. P. Nayak, learned Standing Counsel, Finance Department, on the other hand submits that non-payment of the petitioner's salary is due to the fact that the Selection Committee had made a select list containing 20 names, though there were only 14 vacant Grade-IV posts. He submits that as per Section 7 (1) (g) of the Assam Fiscal Responsibility and Budget Management Act, 2005, hereinafter referred to as the "2005 Act", the select list to be prepared for fresh appointment to vacant sanctioned posts was to contain names equal to the number of vacant posts notified. He accordingly submits that only 14 names should have been reflected in the select list. However, as there were more than 14 names in the select list, the appointment of the petitioner, who was at Sl. No. 15 of the select list, was not proper and accordingly, no salary can be paid to the petitioner as the petitioner's appointment has been made dehors the "2005 Act".
In support of his submission, the learned Standing Counsel for the Finance Department has relied on a Judgment of the Hon'ble Apex Court in the case of Hoshiar Singh Vs. State of Haryana and Ors. reported in 1993 Supp.(4) SCC 377.
Paragraph No.10 of the Judgment of the Apex Court in the case of Hoshiar Singh Vs. State of Haryana and Ors. (Supra) is as follows:
"10. The learned counsel for these appellants have not been able to show that after the revised requisition dated January 24, 1991 whereby the Board was requested to send its recommendation for 8 posts, any further requisition was sent by the Director General of Police for a larger number of posts. Since the requisition was for eight posts of Inspector of Police, the Board was required to send its recommendations for eight posts only. The Board, on its own, could not recommend names of 19 persons for appointment even though the requisition was for eight posts only because the selection and recommendation of larger number of persons than the posts for which requisition is sent. The appointment on the additional posts Page No.# 7/12 on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable."
(10) Ms. A. Neog, learned Standing Counsel for the respondent Nos.4 to 6 submits that the advertisement dated 03.10.2015 had notified filling up of 14 Nos. of vacant Grade-IV posts. After the selection process was completed, a merit list of 20 candidates was made. The persons who secured the first 14 positions were given appointment letters dated 16.12.2015. The person who secured the 9 th position informed the North Cachar Hills Autonomous Council that he was unable to join the said post and as such, the petitioner, who was in the 15 th position was given the appointment order for the 14th vacant post. The petitioner thereafter joined the service on 30.01.2016. However, the proposal for payment of the salary of the petitioner has been rejected by the Finance Department on the ground that that merit/ select list made by the Selection Committee contained 20 names, while there were only 14 Nos. of vacancies.
She submits that in the meantime, the Finance Department has given approval for payment of salary to all the other 13 appointees and they are receiving their salary even till date. She submits that the selection and appointment of Grade-III & Grade-IV post in the Sericulture Department, which is one of the subjects amongst many subjects transferred from the State Government to the North Cachar Hills Autonomous Council and in view of the OM dated 20.03.2015 issued by the Finance Department, Government of Assam, the petitioner has to be given his salary.
(11) Further, even if this Court comes to a finding that the merit list can be construed to be a select list whether the listing of 20 candidates in order to merit would not cause any prejudice to anybody including the respondents, when the merit list is not a recommendation for filling up of posts beyond the 14 notified vacant posts.
(11) I have heard the learned counsels for the parties. The issue to be decided is whether the merit list containing 20 names would be in violation of Section 7 (1)(g) of the 2005 Act.
Page No.# 8/12 (12) Section 7(1) of the 2005 Act states as follows:-
"7. Measures to ensure Fiscal Discipline.- (1) With a view to ensuring timely discharge of current liabilities, especially payment of salaries to the employees,
(a) 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 order;
Explanation: The appointing authorities under this clause shall include the appointing authorities of the autonomous bodies including Public Sector Undertakings, Companies, Statutory Bodies, Trust, Societies and Cooperative Societies under the State Government.
(b) notwithstanding any other provision contained in any Act or Rules, no new post shall be created in any department of the State Government or in Autonomous bodies including Public Sector Undertakings, Companies, Statutory Bodies, Trusts, Societies and Cooperatives Societies, which are under the State Government, without the prior concurrence of the Finance Department;
(c) no appointment shall be made by the State Government or the appointing authorities under it in the vacancies arising out of transfer and leave of the incumbents in these posts;
(d) no appointment shall be made by the State Government or the appointing authorities under it, in a post in anticipation of it's falling vacant in future;
(e) the State Government or the appointing authorities under it shall not make more than one appointment against one vacant post;
(f) any letter of appointment to any vacant sanctioned post shall clearly indicate the identity of the post in the manner as may be prescribed;
(g) 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."
(13) Section 7(1)(g) of the 2005 Act requires the select list should contain names equal to the number of notified vacant posts. Though, the merit list has 20 names, the same does not imply that more than 14 persons should be appointed in respect of any vacancy beyond the 14 notified vacancies. Further, it is not anyones case that the selection committee had recommended appointment of all 20 persons whose names were reflected in the merit list. The persons whose names appear from Sl. No.15 and above in the merit list can be said/assumed to be in a waiting list and as held by the Apex Court in the case of Gujarat State Dy. Executive Engineers' Vs. State of Gujarat and Others. (Supra), the same only ensures that the office work does not suffer, if selected candidates do not join their post for one reason or another. The merit list containing 20 names can be used only for Page No.# 9/12 contingency purposes and the same in the opinion of this Court does not violate Section 7(1)
(g) of the 2005 Act, so long as the same is used for filing up of the 14 notified vacancies.
(14) In the case of Hoshiar Singh Vs. State of Haryana and Ors .(Supra), the selection Board was required to send it's recommendation for 8 posts only. However, the Board had recommended 19 persons for appointment, even though the requisition had been made for only 8 posts. In the present case, though the requisition is for 14 posts, 20 names have been put in the merit list for filing up of 14 posts. There is no recommendation for appointment to 20 posts in terms of the merit list. The merit list was to be used for selecting and appointing only 14 candidates for appointment. Accordingly, this Court is of the view that the case in Hoshiar Singh Vs. State of Haryana and Ors . (Supra) is not similar to the facts of this case and as such, the case of the Hoshiar Singh Vs. State of Haryana and Ors. (Supra) is not applicable to the facts of this case.
(15) As can be seen from the pleadings and submissions made by the parties, the selection process had been conducted for filling up of 14 vacant posts. As one of the selected 14 candidates, that is the person in the 9 th position had declined to join his post, the 14 th notified vacant post was filled up by appointing the petitioner, who had secured the 15 th position in the merit list. In the considered view of this Court, the same does not cause any prejudice to anybody including the Finance Department, Government of Assam, i.e respondent nos.3 & 7.
(16) In exercise of the powers conferred by Sub-para (2) of paragraph 6 of the Sixth Schedule of the Constitution of India, the Governor of Assam was pleased to entrust and delegate the functions in relation to the Sericulture Department, amongst other subjects/ departments, which had been extended within the Executive powers of the State of Assam, to the the North Cachar Hills Autonomous Council (NCHAC). Subsequent to the above, the Secretary to the Government of Assam, Finance Department issued Office Memorandum dated 20.03.2015, by which the Government of Assam delegated the power of filling up of Grade III and Grade IV District cadre posts in respect of the transferred Departments of the Sixth Scheduled areas to the respective authority of the Council, thereby providing that the NCHAC could make its own selection process and appointment for Grade III and Grade IV Page No.# 10/12 posts. The relevant portion of the OM dated 20.03.2015 issued by the Secretary to the Government of Assam, Finance Department is reproduced below:-
"OFFICE MEMORANDUM Subj: Filling up of sanctioned vacant Grade III and Grade IV posts in Sixth Scheduled areas in modification to OM No. FSI 5/2005/Vol-VI/76 dtd 30.03.2012.
............. The Government after careful consideration with the approval of Cabinet has decided to delegate the power of the filling up of Grade-III and Grade-IV District cadre posts in respect of the transferred departments of the Sixth Scheduled areas of Karbi Anglong Autonomous District Council (KAAC), North Cachar Hills Autonomous Council (NCHAC) and the Bodoland Territorial Council (BTC) to the respective authority of the Council and is pleased to revise the existing OM No. FSI 5/2005/Vol-VI/76 dtd 30/03/12 for filling up of Grade III and Grade IV District cadre posts in the Sixth Scheduled Areas in the following manner.
1. The Principal Secretary of the respective Autonomous District Council shall issue prior approvals for filling up of duly created and retained vacant sanctioned Grade III and Grade IV District cadre posts in respect of transferred departments of Sixth Schedule Areas (except all posts of teachers of Elementary Schools and Driver) instead of obtaining prior approval from concerned Administrative Departments as required as per Paragraph 4 of the OM dated 30.03.2012.
2. For creation of new posts or up-gradation of existing posts, all authorities including other Administrative Departments will continue to move Finance Department as per existing procedure.
3. Sweeping and cleaning services are to be outsourced and posts of sweepers shall not be filled up in any Department including the authorities in Councils on any ground, including compassionate ground, except in Govt. Hospitals.
The other procedures to be followed by the concerned Council Authorities shall continue, to remain operational as per the existing OM No. FSI.5/2005/Vol-VI/76 dated 30/03/2012."
Page No.# 11/12 A perusal of the above extract of the OM dated 20.03.2015 clearly shows that the power of the NCHAC to make its own selection process and appointment for filling up duly created posts, in terms of the OM dated 20.03.2015, is only subject to the condition, that prior approval of the Principal Secretary, NCHAC is to be taken, prior to filling up the vacancies. In the present case, it is an undisputed fact that approval had been taken from the Principal Secretary, NCHAC for filling up of 14 vacancies. It is also an undisputed fact that only the 14 notified vacancies were filled up.
(17) Sub-para (2) of paragraph 6 of the Sixth Schedule states as follows:-
"6. Powers of the District Council to establish primary schools, etc.-
(2) The Governor may, with the consent of any District Council, entrust either conditionally or unconditionally to that Council or to its officers functions in relation to agriculture, animal husbandry, community projects, co-operative societies, social welfare, village planning or any other matter to which the executive power of the State extends."
Thus, a reading of Sub-para (2) of paragraph 6 of the Sixth Schedule, alongwith the Notification dated 29.06.1995 and the OM dated 20.03.2015 clearly show that the 2005 Act would not be applicable, in the selection process and appointment made by the NCHAC to Grade III and Grade IV posts of the District cadre post, so long as the prior approval for filling up the notified vacancies had been taken from the Principal Secretary, NCHAC.
(17) In view of the reasons stated above, the stand of the other respondents, especially the Finance Department, in not giving approval to the proposal for sanction for payment of the salary to the petitioner, as requested by the Principal Secretary, North Cachar Hills Autonomous Council Secretariat, Haflong, Assam, vide his letter dated 16.07.2019, addressed to the Under Secretary to the Govt. of Assam, Hills Areas Department, Dispur is arbitrary and violative of Article 14 of the Constitution. The respondents are accordingly directed to issue approvals and accord sanction for payment of salary to the petitioner w.e.f the day he joined the service/post in pursuance to office order dated 29.01.2016. The above directions and actual payment of the petitioner's arrear salary shall be done by the respondents within a period of one month from the date of receipt of a certified copy of this order. Consequently, Page No.# 12/12 the letter dated 05.01.2019 issued by Joint Secretary to the Government of Assam, Hill Areas Department is set aside.
(18) The writ petition is accordingly allowed.
JUDGE Comparing Assistant