Gauhati High Court
Mrs. Chandana Sonowal & 4 Ors vs The State Of Assam And Anr on 25 May, 2017
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.1538/2011
1. Mrs. Chandana Sonowal,
W/o Sri Manoj Phukan
R/o Hatigaon, Lakhi Nagar,
P.s. Hatigaon,
Dist. Kamrup, Assam.
2. Shri Jyoti Charan Nath
S/o Late Bagiram Nath
Vill- Bhamaraguri,
P.S. Batadraba,
Dist. Nagaon, Assam.
3. Sri Kush Ram Medhi
S/o Sri Babi Ram Medhi
Vill- Helandongbori
P.S. Mikirbheta,
Dist. Morigaon, Assam.
4. Shri Krishna Murty Phukan
D/o Late Gopal Chandra Phukan,
Vill- Ward No.II, Barnasatra,
P.S. Morigaon,
Dist. Morigaon, Assam.
5. Shri Reba Kanta Gogoi
S/o Late Ghanashyam Gogoi
Vill- Kachu Pather Gaon,
P.O. Moranjan,
Dist. Sivasagar, Assam.
... PETITIONERS.
VERSUS
1. The state of Assam
Represented by the Commissioner & Secretary,
W.P.T. & B C Department, Dispur, Ghy-6.
2. The deputy Secretary to the Govt. of Assam,
W.P.T. & B C Department, Dispur, Ghy-6.
...RESPONDENTS.
For the petitioners : Mr. A K Hussain
Md. B Hussain
Mr. A S Ahmed .... Advocates
For the respondents : Ms. D D Barman. ... Addl. Sr. Govt. Advocate,
Assam.
Date of hearing & judgment : 25.05.2017
WP(c) No.1538/2011
Page 1 of 7
2
BEFORE
THE HON'BLE MR JUSTICE HRISHIKESH ROY
JUDGMENT AND ORDER (ORAL)
Heard Mr. A K Hussain, learned Counsel appearing for the petitioners. Respondents are represented by Ms. D D Barman, the learned Addl. Sr. Government Advocate, Assam.
2. The petitioners were appointed in the Advisory Council for welfare of Scheduled Tribes (P) [ST(P)] and similar Advisory Council for Scheduled Castes (SC) and Other Backward Classes (OBC). Since their engagement is made co- terminous with the Vice Chairman of the respective Advisory Council, the employees seek direction for their absorption in their respective posts.
3. For the case in hand, it is relevant to record that the Assam Government framed the following three Rules -
(i) Advisory Council for the Welfare of the Scheduled Castes in Assam Rules, 1967.
(ii) Advisory Council for the Welfare of the Scheduled Tribes living in the Plains Districts of Assam Rules, 1967
(iii) Advisory Council for the Welfare of the Other Backward Classes in Assam Rules, 1959
4. The pari materia provision of the three Rules reflects that the Advisory Council for the welfare of the concerned category, shall have secretariat staff, for the functioning of the Advisory Council. The Members of the Council is constituted/re-constituted at the pleasure of the Governor but it is specified in Rule 6 of the 1967 Rules relating to the SC & ST(P) category and Rule 8 of the 1959 Rules for the OBC category that, the Advisory Councils will continue until dissolution of the existing Assembly and shall be re-constituted immediately after the general election to the Assembly.
WP(c) No.1538/2011 Page 2 of 7 35. The role of the Advisory Councils are enumerated in the Rules and they are required to advice the Government on all matters pertaining to the welfare of the concerned group (SC, ST, OBC), for which the Council is constituted. It is also the responsibility of the Council to assess the social, educational, economic and cultural needs of the disadvantaged group so that, appropriate recommendation can be made to the Government on the benefits that may be extended for all-round progress and development of the concerned category for whom, the Advisory Councils are constituted. The Minister for the welfare of Plains Tribes and Backward Classes is made the Chairman of the Advisory Council and several MLAs and also Commissioner & Director level Officers of the related departments, constitute the Advisory Council.
6.1 For the Advisory Council relating to the SC/ST Categories, Rule 4(4) and for the OBC Category, Rule 6 provide that the Vice Chairman shall administer all functions of the Council as may be delegated to him, by the Chairman. The first two petitioners Chandana Sonowal and Jyoti Charan Nath were appointed as LDA-cum-Typist & Peon respectively on 5.2.1993 (Annexure-1), in the service of the Vice Chairman, of the Advisory Council for welfare of ST(P). Both were re- appointed similarly, under the office order dated 17.7.2002 (Page-25), when the Advisory Council was reconstituted.
6.2 The next two petitioners Kush Ram Medhi and Krishna Murty Phukan were appointed as LDA-cum-Typist & Peon respectively, in the office of the Vice Chairman of the Advisory Council for welfare of the SC, under the Notification of 12.10.2007 (Page-29).
6.3 The 5th litigant Reba Kanta Gogoi was appointed as a Peon in the office of the Vice Chairman for the Advisory Council for the welfare of the OBC, under the Notification of 10.12.2008 (Page-30).
7. All the appointments were made co-terminous with the term of the Vice Chairman of the Advisory Council and therefore the LDAs & Peon appointed for the office of the Vice Chairman, cannot claim continuity of service under their respective terms of appointment.
WP(c) No.1538/2011 Page 3 of 7 48. The role and duties of the three Advisory Councils as specified in the Rules indicate that the Council is fastened with the responsibility of assessing the requirement of the SC/ST/OBC category and formulate welfare schemes for the disadvantaged group. The effectiveness of the sanctioned schemes are to be evaluated by the Advisory Councils and they are expected to suggest improvements or changes, where necessary. To put it another way, the Advisory Councils are made responsible to monitor on the problems faced by the concerned category and to formulate and suggest measures to the Government, for eradication of the problems faced by the disadvantaged group. The very nature of the works of the Advisory Council suggest that their task is of perennial nature as the Councils are meant to provide constant input on the progress and developments of the concerned backward category, for which the Advisory Councils are constituted.
9. The provision made for dissolution of Advisory Council coinciding with dissolution of the State Assembly and the mandate for re-constitution, immediately after the general election to the Assembly suggest that, only because, political entities are nominated as the Chairman/Vice Chairman and Members, besides those holding membership in their official capacity, the functioning of the three Advisory Councils are made co-terminous with the duration of the State Assembly. But since the Advisory Councils are expected to be re-constituted soon after the general election to the Assembly, barring the small period between dissolution and fresh election, the Advisory Councils are expected to continuously discharge their responsibilities, at the pleasure of the Governor.
10. Unlike the Chairman and Vice Chairman who are political entities, the LDAs/Peon attached to the Vice Chairman are appointed staff entrusted with the work of the concerned Advisory Council. The Vice Chairman utilize the lone LDA and peon, to administer the functions of the Council, as may be directed by the Chairman, who happens to be the Minister of the concerned department. The Vice Chairman is elected in the Council, from amongst the MLA members. Therefore it is quite natural that the Chairman and the Vice Chairman of the WP(c) No.1538/2011 Page 4 of 7 5 Advisory Council can remain in office, only during the subsistence of the Legislative Assembly, when MLAs and Ministers hold office.
11. But in so far as the Secretarial Staff of the Advisory Council and the staff under the Vice Chairman, are concerned, they are not in the same footing as the political entities, like the MLAs and Ministers. In fact the constitution of the Advisory Council is at the pleasure of the Governor but when a particular Council is constituted/re-constituted, Governor's notification does not take into account, the staff attached with the Advisory Council or the Vice President.
12. In the counter affidavit filed by the respondents on 18.12.2012, it is stated that the appointment of the petitioners are co-terminous with the tenure of Vice Chairman but in the same paragraph, it is also averred that they are re- appointed with the formation of the subsequent Advisory Councils. In the annexed Note of the Finance (EC-I) Department, the appointment of LDA-cum- Typist and Peon are approved by the Finance Department with the condition that the appointments so made, will be co-terminous with the terms of the Vice Chairman. Interestingly it is also specified in the Note that the posts were sanctioned and the formalities for regular appointment are to be followed, in appointing the incumbents to the post of LDA and Peon. The creation of posts where the petitioners are appointed for the three Advisory Councils can also be confirmed, from the communication dated 7.1.2011 (Page-44), where it is suggested that salary payment should be made to the 6 employees (LDA & Peon) of the Advisory Councils, as per the Revised Pay Scale under the ROP Rules, 2010.
13. Following the dissolution of the last Assembly in March, 2016, the general elections were held in Assam and the elected MLAs were then administered Oath in May 2016. Since then, the Governor has constituted the Advisory Council for the welfare of SC on 27.9.2016 and the Advisory Council for the welfare of the ST on 9.5.2017. However the Government advocate informs the Court that the constitution of the new Advisory Council for the OBC is in process.
WP(c) No.1538/2011 Page 5 of 7 614. It is relevant to record that the political entities secure their position in the concerned Advisory Council, by virtue of their position as MLA/Minister and therefore, dissolution of the existing Advisory Council simultaneously with dissolution of the Assembly, may not be a cause of grievance for those political functionaries, who function as Chairman/Vice Chairman/Members of the Advisory Council. But this is not same for the LDAs and Peon, who are apolitical persons and therefore their fate should not in my view, be determined by the dissolution or formation of the Legislative Assembly, in the State.
15. The averments of the State in the counter affidavit make it clear that the petitioners are appointed against sanctioned posts and they draw salary from the State Exchequer. Therefore the Government certainly owes a responsibility to provide a fair deal for those appointed to posts, sanctioned by the Government. The abrupt discontinuation of service and the suggested re-appointment with formation of the subsequent Council, as averred in paragraph 4 of the counter affidavit, can hardly be categorized as a fair act of a benevolent Government. The injustice done to the petitioners through periodic termination of their services makes them less equal than other Government employees and this certainly infringes their right of equal treatment, guaranteed by our Constitution.
16. Those who are appointed in posts created by the Government must be treated alike and just because the Advisory Councils are dissolved along with the State assembly and reconstituted immediately after election, should not have the effect of break in service for the clerks and peons. The responsibilities of the three Advisory Councils are perennial and therefore the 2 employees attached to the office of the Vice Chairman deserve protection of their service. The Government owes a responsibility to be fair and no rational basis is seen for temporary service break for the six Grade-IV and Grade -III employees, under the three Advisory Councils. The practice of artificial break in service, in my perception, is discriminatory and unfair and it violates the equality principle enshrined in Article 14 of the Constitution.
17. Following the above, the petitioners are held entitled to continuation of WP(c) No.1538/2011 Page 6 of 7 7 service without disruption and they be treated as permanent staff for the concerned Advisory Council. In other words, the petitioners' service should not be dependent on the tenure of the Vice Chairman of the Council and they be treated as essential staff in the office of the Vice Chairman of the respective Advisory Councils. It is ordered accordingly.
18. With the above order the case stands allowed without any order on cost.
JUDGE Datta WP(c) No.1538/2011 Page 7 of 7