Gauhati High Court
Tutumani Das And 6 Ors vs The State Of Assam And 25 Ors on 8 April, 2021
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia, Manash Ranjan Pathak
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GAHC010042792021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/87/2021
1. TUTUMANI DAS AND 6 ORS.
S/O LATE BIREN DAS, R/O SANTIPUR HILL SIDE (MATHURA NAGAR), PS
BHARALUMUKH, GUWAHATI-781009, DIST. KAMRUP (METRO), ASSAM
2: BHANITA DAS
D/O LATE HARIDAYAL DAS R/O WARD NO. 5 NEAR NAMGHAR ROAD PS
BARPETA ROAD DIST. BARPETA ASSAM PIN-781315
3: RAMEN CHANDRA DEKA
S/O NAUDATTA DEKA R/O VILLAGE-GARIAKOTH
PS RANGIA DIST. KAMRUP ASSAM PIN-781365
4: DEEPA BURA GOHAIN
D/O SIBA BURAGOHAIN R/O VILLAGE PUKHRIA
PO MARIANI DIST. JORHAT ASSAM
5: SABITA KALITA
D/O LATE NANDESWAR KALITA R/O VILLAGE TERECHIA
PO TERECHIA PS NALBARI DIST. NALBARI ASSAM
6: MEGHALI GOGOI BURAGOHAIN
C/O DEBASHISH BURAGOHAIN R/O WARD NO. 9
CHANDMARI GREEN ROAD DIST. GOLAGHAT ASSAM PIN-785621
7: WAHAB ALI AHMED
S/O ALHAJ ABDUL JUBBAR R/O VILLAGE KUMULLI PARA
PO JOSHIHATI PARA PS HOWLY DIST. BARPETA ASSAM PIN-78131
VERSUS
1. THE STATE OF ASSAM AND 25 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
FINANCE DEPARTMENT, DISPUR, GUWAHATI-06
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
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FINANCE (ESTT. B) DEPARTMENT DISPUR GUWAHATI-06
3:THE ASSAM PUBLIC SERVICE COMMISSION REP. BY THE CHAIRMAN
JAWAHARNAGAR KHANAPARA GUWAHATI-781022 DIST. KAMRUP
(METRO) ASSAM
4:THE CHAIRMAN (I/C) PRINCIPAL CONTROLLER OF EXAMINATIONS
ASSAM PUBLIC SERVICE COMMISSION JAWAHARNAGAR KHANAPARA
GUWAHATI-781022 DIST. KAMRUP (METRO) ASSAM
5:THE DIRECTOR OF AUDIT (LOCAL FUND)
ASSAM DISPUR GUWAHATI-06
6:NRIPENDRA DAS
S/O SRI CHANDRA KANTA DAS
R/O NO.2 GALIA HATI PO BARPETA DIST. BARPETA ASSAM PIN-781301
7:DHIRAJ DAS
S/O SRI UDAY DAS
R/O PALLA ROAD WARD NO. 11 PO AND DIST. NALBARI ASSAM PIN-781335
8:JUGAJYOTI DAS
S/O HIRENDRA CH. DAS
R/O VILLAGE AND PO BHULUKADOBA DIST. BARPETA ASSAM PIN-781317
9:MONTAKIM ZAMAN SK
S/O NURUZZAMAN SK R/O VILLAGE COLLEGE NAGAR GOALPARA PO
AND DIST. GOALPARA ASSAM PIN-783101
10:RATUL BHARALI
S/O LATE MAKHRAM BHARALI R/O VILLAGE CHARING BARUATI PO
BARUATI DIST. SIVASAGAR ASSAM PIN-785661
11:PARTHA SAROTHI BORA
S/O MR. NOBIN BORA R/O JAKHALAPARA
NEAR RUPNAGAR PO CHINNAMARA DIST. JORHAT ASSAM PIN-785008
12:SURAJIT BARMAN
S/O SRI SIDDHESWAR BARMAN R/O VILLAGE LACHIMA
PO SARTHEBARI DIST. BARPETA ASSAM PIN-781307
13:SABITA DAS
D/O KHARGESWAR DAS R/O VILLAGE BARPHUKANHAT
PO GORESWAR DIST. BAKSA ASSAM PIN-781366
14:DIPAMANI MEDHI
D/O TIKENDRAJIT MEDHI R/O VILLAGE AND PO- BAMAKHATA
DIST-BARPETA ASSAM PIN-781325
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15:AMIT KUMAR MONDAL
S/O LATE PARIMAL MONDAL R/O WARD NO. 15 CHANDARIA PATHAR
PO BALADMARI DIST. GOALPARA ASSAM PIN-783121
16:RAJIB GOSWAMI
S/O LATE RAJENDRA NATH GOSWAMI R/O VILLAGE RAULI
DIST. BARPETA ASSAM PIN-781311
17:BHABANI PRASAD GOGOI
S/O LATE HOREN GOGOI R/O 4 NO. MAKUMPATHAR
WARD NO.1 MARGHERITA DIST. TINSUKIA ASSAM PIN-786181
18:SANJIB RAJKONWAR
S/O RUDRA RAJKONWAR R/O VILLAGE AND PO RONGABAM
DIST. CHARAIDEO ASSAM PIN-785691
19:SANJIB KUMAR MONDAL
S/O LATE GAURANGA CH. MONDAL
R/O REDCROSS ROAD PO AND DIST. SIVASAGAR ASSAM PIN-785640
20:SANJIB KUMAR DAS
S/O DINESH KUMAR DAS R/O GALIAHATI G.C. LANE BARPETA HOUSE NO.
290-A WARD NO. 9 PO AND DIST. BARPETA ASSAM PIN-781301
21:DHIRAJ MALAKAR
S/O CHITRA RAM MALAKAR R/O VILLAGE BALIKARIA
PO KAZIPARA DIST. NALBARI ASSAM PIN-781341
22:NIRUPOM SAIKIA
S/O LATE CHAKRESWAR SAIKIA R/O VILLAGE BORDIHINGIA GAON
PO KAMARGAON DIST. GOLAGHAT ASSAM PIN-785621
23:BHASKARJYOTI GOGOI
S/O LOKARANJAN GOGOI R/O VILLAGE JAIPUR TEA ESTATE
PO JAIPUR DIST. DIBRUGARH ASSAM PIN-785614
24:NITUL DEKA
S/O LATE N.C.DEKA R/O KHETRI COLLEGE ROAD
PO KHETRI DIST. KAMRUP (M) ASSAM PIN-782403
25:OMAR FARUK
S/O TABIBAR RAHMAN R/O WARD NO. 2
MANGALDOI TOWN DIST. DARRANG ASSAM PIN-784125
26:KALPANA DAS
W/O KANKAN BHATTACHARYYA R/O L.K. ROAD NEAR P.K.B. NURSING
HOME NORTH HAIBORGAON DIST. NAGAON ASSAM PIN-78200
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-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
Advocate for the Appellants : Mr. K.N. Choudhury, Senior Advocate.
Mr. M. Ahmed, Advocate.
Advocates for respondents : Mr. U. K. Nair, Senior Advocate
Mr. R. Singha, Advocate.
Mr. D. Saikia, Senior Advocate,
Mr. B. Gogoi, SC, Finance Deptt.
Mr. P.P. Dutta, SC, APSC
Date of hearing and judgment & Order : 08.04.2021
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ) Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. M. Ahmed, learned counsel for the appellants. Also heard Mr. D. Saikia, learned senior Standing Counsel, Government of Assam for the respondent nos.1 and 2; Mr. P. P. Dutta, learned Standing Counsel, APSC for the respondent nos. 3 and 4; Mr. B. Gogoi, learned Standing Counsel, Finance Department for the respondent no. 5 and Mr. U. K. Nair, learned senior counsel assisted by Mr. R. Singha, learned counsel for the private respondent nos. 6 to 24.
2. In the Finance Department, Government of Assam, there is a Department called Assam Local Fund Audit Service. A departmental promotional examination was held for considering the eligible candidates for the posts of Audit Officer from amongst the feeding cadre of Assistant Audit Officers in the Directorate of Audit which is brought under the Finance Department, Assam.
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3. The admitted position is that as per the Rules, 75% of the posts of the Audit Officer are to be filled from amongst Assistant Audit Officers who qualify in a departmental examination. The petitioners/writ appellants are the ones before this Court who had appeared in the departmental examination but had failed to qualify the said departmental examination as they did not get the required aggregate marks. The petitioners, however, were aggrieved as the Department had increased the number of vacancies from 32 to 51, which had been notified earlier. This, according to the petitioners, was a violation of Article 14 and 16 of the Constitution of India as far as the petitioners are concerned, as the Department cannot recruit candidates over and above the notified vacancies. The admitted position is that the notified vacancies were 32. There were 80 candidates who fell in the eligibility zone out of which 57 qualified the departmental examination. The case of the writ petitioners was that since the notified vacancies were only 32, promotions should have been made for only 32 posts and not for 51 posts as it was being done. Their argument prima-facie found favour of the learned Single Judge and an interim order was given by the learned Single Judge on 19.12.2019 in WP(C) 9305/2019 allowing the respondents to fill up only 32 (thirty two) posts of Audit Officers but, thereafter, the interim order was vacated by an order dated 01.02.2021 in I.A.(Civil) 243/2020. Aggrieved, the present writ appeal has been filed before this Court.
3. Various submissions have been made before this Court by the counsel for the rival parties. Mr. K. N. Choudhury, learned senior counsel for the writ appellants would argue that recruitment could not have been made over and above the notified vacancies and since it has been done it is the Page No.# 6/7 clear violation of Article 14 and 16 of the Constitution of India and, in support of his submission, he has also cited certain judgments before this Court. To the contrary, Mr. U. K. Nair, learned senior counsel for the private respondents, who were selected in addition to 32 selected candidates, would argue that this is an intra-departmental examination and, hence, it was purely a promotional exercise and candidate were not being recruited directly from the market. All the candidates were well aware of the recruitment exercise and they cannot have any grievance in case vacancies increase. As far as notification of vacancies is concerned, that was never a requirement. The rules do not provide notification of vacancies, and therefore, the reliance on the notification of 32 vacancies by the petitioners is clearly misplaced. He would also argue that what is relevant in the present case is the recruitment year and since the recruitment year in the case, according to him, is 2019, all the vacancies which have been accumulated so far in the year 2019 are liable to be filled up by way of promotion. Mr. D. Saikia, learned senior Standing Counsel, Government of Assam, would argue that although appointment letters had been given to only 27 candidates as for the remaining 5 posts, no candidate was available out of the 32 eligible candidates from SC/ST category, but he further states that Department is in need of Audit Officers, on urgent basis.
4. Based on these submissions, this Court makes a limited interference in the present writ appeal. A final decision will now be taken by the learned Single Judge on all the issues which have been argued before this Court and which shall be argued before the learned Single Judge, some of which have already been referred to above. Till such a decision is taken by the learned Single Judge, it is for the Government to give appointment to Page No.# 7/7 the remaining selected candidates but it may give only on officiating capacity subject to the final decision which will be taken by the learned Single Judge, as the learned Single Judge has already stated in his order. We also make it very clear that no positive direction is being given in this respect by this Court. It is totally for the discretion of the State Government who shall take a call with the concerned Department depending upon the requirement of Audit Officers. We also make it very clear that in case the Government takes a decision of giving officiating appointment to such candidates, such officiating appointment will not give any right to such candidates as their selection and appointment is subject to the final decision of the learned Single Judge.
5. The interim order of the learned Single Judge dated 19.12.2019 passed in WP(C) 9305/2019 is modified to the above extent.
6. Let the learned counsel for the parties make a mention before the learned Single Judge for a expedite hearing of the matter.
7. This writ appeal stands disposed of in the above terms.
JUDGE CHIEF JUSTICE Pradip Comparing Assistant