ARUN SHARMA Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the order dated 3.6.98 passed by the Government of Assam in the department of Labour and Employment placing him under suspension pending drawal of departmental proceeding under rule 6(1 )(a) of the Assam Civil Services (Discipline & Appeal) Rules, 1964 with immediate effect.

(2.) The relevant facts briefly are that the petitioner was posted as Assistant Director of Employment at Silchar with effect from 15.5.97. On 10.9.97, the Government of Assam in the department of Labour and Employment issued a notification allowing the petitioner to hold the current charge of the post of Deputy Director of Employment, Southern Assam Zone, Silchar in addition to his duties until further orders. While the petitioner was holding such charge as Deputy Director of Employment, he received a letter dated 26.9.97 from the Director of Employment and Craftsman Training, Assam, (hereinafter referred to as "the Director") which stated that at the time when the selection Board meeting was held for appointment of Sri Aniruddha Bhattacharjee in the office of the Deputy Director of Employment, Southern Assam Zone, Silchar, there was a ban imposed by the Government on employment and the said ban was reopended only in the last part of August, 1997. So the appointment made by the Deputy Director of Employment, Silchar during the ban period was illegal and unjustified. By the said letter dated 26.9.97, the petitioner was directed to cancel the appointment of Sri Aniruddha Bhattacharjee and take follow up action as per the Government instructions contained in the notification dated 1.8.97, a copy of which was enclosed along with the said letter. The petitioner then cancelled the appointment of Sri Aniruddha Bhattacharjee as LD Assistant, constituted a fresh selection committee on 30.9.97 and held a fresh selection through written examination and interview and prepared a select list of ten candidates for the vacancies in the posts of L.D.A. in the District Employment Exchange, Silchar. Sri .Anirudda Bhattacharjee who stood first in the said selection was appointed as L.DA. by the petitioner by his order dated 7.11.97. Thereafter, on 2.4.98, the petitioner appointed Smti Sanchita Das who was placed second in the order of merit in the select list as L.D.A. By letter dated 2.4.98 the petitioner appears to have informed the Director about the aforesaid appointment of Smti. Sanchita Das. After receiving the letter dated 2.4.98 of the petitioner, the Director sent a telegram on 9.4.98 to the petitioner cancelling the unauthorised appointment of Smti Sanchita Das and asked him to report compliance by wire. On 20.4.98, the Director sent another telegram to the petitioner to confirm termination of appointment of Smti Sanchita Das, L.D.A. by return or else face disciplinary action. Simultaneously, on 20.4.98, the Director issued a letter to the petitioner stating therein that the petitioner was not empowered to exercise the power of the Deputy Director of Employment in respect of appointment/transfer of ministerial staff including L.D.A. and Grade-IV as he was holding the current charge of the post of Deputy Director of Employment, Southern Assam Zone, in addition to his own duties as Assistant Director of Employment, District Employment Exchange, Silchar and that he was not a regular full fledged Deputy Director. In the said letter dated 20.4.98, it was further stated that against the vacant post of L.D. Assistant under the District Employment Exchange, Silchar, Sri Dilip Hazarika, L.D.A. from Employment Exchange, Majuli had already been transferred by order dated 30.3.98 and yet the petitioner had appointed Smti. Sanchita Das in the said vacant post by his order dated 2.4.98 despite the ban on recruitment to Grade-III and Grade-IV posts imposed by the Government on 14.3.95 which had not been lifted .In the said letter dated 20.4.98, it was further mentioned that the petitioner had not complied with the Directorate telegraphic instructions dated 9.4.98 to cancel the said illegal and unauthorised appointment of Smti. Sanchita Das as L.D.A. in the District Employment Exchange, Silchar. By the said letter, the petitioner was asked to explain as to why the Government should not be approached for taking appropriate disciplinary action against him for unauthorised exercise of powers and insubordination and violation of Adminstrative orders of the Government which were in force. Thereafter, by order dated 23.4.98, the petitioner cancelled the appointment of Smti Sanchita Das as L.D. A. in the District Empolyment Exchange, Silchar in pursuance of the telegraphic orders dated 9.4.98 and 20.4.98' of the Director. In his letter dated 2.5.98 to the Director, the petitioner submitted his explanation in reply to the letter dated 20.4.98 of the Director stating, inter alia, that the order dated 30.3.98 transferring Sri Dilip Hazarika to the vacant post ofL.D.A was received by the petitioner only on 4.4.98 and hence he was not aware of the order of transfer of Sri Hazarika to the said vacant post prior to the appointment of Smti Das on 2.4.98. In the said explanation, the petitioner had also stated that the ban on appointment was reopened in the last part of August, 1997 as stated in the letter dated 26.9.97 of the Director to the petitioner and that on receipt of the telegraphic instructions dated 9.4.98 and 20.4.98 and on telephonic instructions from the Director on 23.4.98, he had cancelled the appointment of Smti Das by order dated 23.4.98. The said explanation however was not accepted and by the impugned order dated 3.6.98 of the Government in the department of Labour and Employment, the petitioner was placed under suspension pending drawal of departmental proceeding. Aggrieved, the petitioner has moved this court for appropriate relief.

(3.) At the hearing, Mr. P.K. Goswami, learned counsel for the petitioner, submitted that it will be clear from the letter dated 20.4.98 of the Directorto the petitioner that the firs allegation against the petitioner was that he could not exercise the power of the'Deputy Director of Employment in respect of appointment of ministerial staff as he was holding only the current charge of the post of Deputy Director and was not a regular Deputy Director, but this allegation in misconceived inasmuch as in accordance with the order dated 10.9.97 of the Government of Assam, Labour and Emplqyment Department, the petitioner was allowed to hold the current charge of the post of Deputy Director of Employment, Southern Assam Zone, Silchar which would mean that he would perform all the functions of the Deputy Director of Employment including appointment of L.D. As. In this context, Mr. Goswami pointed out that the petitioner has not committed any illegality in filling up the posts of L.D. As through a selection committee which was approved by the Deputy Commissioner. He further submitted that the selection Committee comprised, besides the petitioner, of the Sub-Divisional Officer (Sadar), Silchar, the Joint Director of Health Services, Cachar, Silchar, the District information and Public Relation Officer, Cachar, Silchar and the Assistant Director pf Employment (Enforcement), Southern Assam Zone, Silchar, and that the candidates were: selected strictly on the basis of merit. Hence there were no malafide on the part of the petitioner in selecting candidates and making appointment to the posts of L.D. As, The second allegation against the petitioner in the letter dated 20.4.98 of the Director is that despite the order of transfer of Sri Dilip Hazarika, L.D.A. from the Employment Exchange, Majuli issued on 30.3.98 by the Director, the petitioner appointed Smti Sanchita Das as L.D.A. in the District Employment Exchange, Silchar as a result of which the transfer order of Sri Hazarika could not be given effect to. Mr. Goswami explained that the petitioner had no knowledge whatsoever about the said transfer order dated 30.3.98 when he issued the appointment order of Smti Sanchita Das on 2.4.98. At any .rate, Mr. Goswami pointed out the said Sri Dilip Hazarika was not keen on the transfer and therefore moved this court in Civil Rule No. 209'8/98 and obtained an order of stay. The third allegation against the petitioner in the letter dated 20.4.98 of the Director is (that there was a ban on recruitment to tbs posts of Grade-Ill and Grade-IV issued by the government on 14.3.95 and that the said ban had not been lifted and yet the petitioner appointed Smti Sanchita Das. This allegation is factually misconceived because in the letter dated 26.9.97 of the Director to the petitioner, it was clearly, stated that the ban on appointment was reoponed in the last part of August, 1997.Mr Goswami vehemently contended that this was a case of total non-application of mind on the part of the authorities before passing the order of suspension and that the order of suspension was liable to be quashed He vehemently argued that the petitioner appears to have been suspended as the transfer of Sri Dilip Hazarika which was initiated at the instance of the: Minister concerned could not be implemented due to the stay order dated 4.5.98 passed by the court in Civil Rule No. 2098/98. He cited the decisions of the Supreme Court in State of Orissa vs Bimal Kumar Mohanty, AIR 1994 SC 2296, as well as the decisions of this court in Dhirendra Kumar Barthakur vs The State of Assam & others, (1983) 2 GLR 459, Sadou Asom Rajyik Paribahan Nigam Chalak Santha vs The State of Assam & others, 1988(2) GLJ 177, and Sohrab All vs State of Assam & others, 1995(1) GLJ 578 in support of his aforesaid submission that the order of suspension is vitiated and is liable to be quashed.