Kamal Kumar Bhuyan vs State Of Assam And 2 Ors.

Heard Mr. M. Khataniar, learned counsel appearing for the writ petitioner. I have also heard Mr. N. Sarma, learned Standing Counsel, Education

Department, Assam, appearing on behalf of the official respondents.

All these three writ petitions arise out of identical fact situation, raising common question of law and therefore, I propose to dispose of these writ

petitions by this common order. For the purpose of appreciating the contentious issues raised in the writ petitions, WP(C) No.5650/2013 is treated as

the lead case and the facts involved in the said writ petition is being briefly narrated herein below.

By an order dated 24.08.1998 issued by the Deputy Director, ElementaryEducation, Assam, Kahilipara, Guwahati, the District Elementary

Education Officers were directed to forward the names of eligible candidates who had applied for the post of LDA and Grade-IV posts in response to

the advertisement issued by the department pursuant whereto, the name of the writ petitioner herein was fowarded for the post of LDA.Â

Thereafter, by the order dated 18.09.1998 the petitioner was provisionally appointed as an LDA in the scale of pay of Rs.1065/- to 2095/- per month

plus other allowances. Subsequently, the services of the writ petitioner was also confirmed in the said post.

While he was serving in the post of LDA the department had received anapplication filed under the RTI Act, 2005 raising queries about the validity

of the appointment of the petitioner and the three other persons named therein including the writ petitioners in the connected writ proceeding. In the

wake of the RTI query, the Officer on Special Duty in the Directorate of Elementary Education had issued letter dated 27.01.2011 to all the four

candidates who were recruited by following the same process, asking them to appear before the said authority in connection with an enquiry proposed

to be made with reference to the RTI application filed by one Kajol Karmakar. The writ petitioner had accordingly appeared before the said

authorities with all the documents. However, no decision in the matter was communicated to the petitioner. Instead, on 04.10.2012 the respondent

No.2 had issued an order under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 issuing a show cause notice upon the petitioner

calling upon him to explain as to why his service should not be terminated on the grounds mentioned therein. In the show cause notice dated

04.10.2012 it has been observed that based on an enquiry conducted by the Enquiry Officer, who had submitted a report on 15.02.2011, it was

found that the appointment order issued to the petitioner was illegal and the same has been done without observing the procedure and rules of the

department.

On receipt of the show cause notice dated 04.10.2012 the petitioner hadsubmitted his written explanation on 23.11.2012 whereafter, the authorities

had served a notice dated 19.04.2013 upon the petitioner directing him to appear before the Enquiry Officer on 07.05.2013 in connection with the

enquiry. However, since then no action has been taken in the matter.

Mr. Khataniar, learned counsel for the petitioner, submits that in this case theauthorities have acted in utter violation of the provisions of the Assam

Services (Discipline & Appeal) Rules, 1964 inasmuch a finding as regards the invalidity of the appointment of the petitioner had been recorded even

before a proper show cause notice was served upon the petitioner and he was given an opportunity to present his case. Mr. Khataniar further submits

that in this case, no show cause notice containing the statement of allegations had been served upon the petitioner as per the requirement of the Rules

of 1964. It is also the submission of the petitioners’ counsel that having been appointed by following due procedure and having rendered more than

15 years of service, the authorities ought not to have arbitrarily subjected the petitioner to such disciplinary proceeding, that too, in utter violation of the

Rules of 1964, more so when there is no allegation of misconduct against the petitioner. Mr. Khataniar has also submitted that since the year 2013, no

action has been taken in the purported departmental proceeding and therefore, the rights and interest of the petitioner had suffered serious prejudice

due to pendency of such proceeding for such a long period. Under the circumstances, a prayer has been made to set aside the departmental

proceeding initiated on the basis of the show cause notice dated 04.10.2012.

The department has not filed any counter affidavit but Mr. Sarma, learnedStanding Counsel, Education Department, submits that the authorities

could not impose any order of penalty upon the petitioner due to operation of an interim order in this case.

I have considered the submissions made by the learned counsel for the partiesand have perused the materials available on record. I find from the

record that the petitioners in the remaining two writ petitions are similarly situated as the petitioner in the present proceeding save and except that they

were appointed against Grade-IV posts and subsequently promoted to the post of LDA. Subsequently the writ petitioner in WP(C) No.5672/2013

was also promoted to the post of UDA. Similar show cause notices had been served upon all the three writ petitioners and that is how they are

before this Court by filing these writ petitions.

The learned departmental counsel has not disputed the fact that no showcause notice nor any statement of allegation had been served upon the writ

petitioners before the authorities had recorded a finding of fact that their appointments are illegal. Moreover, there is no charge constituting any

misconduct on the part of the petitioners in these cases. If that be so, the observations made in the show cause notice dated 04.10.2012 holding that

the appointment of the writ petitioners are not only dehors the Rules of 1964 but also wholly untenable in the eye of law since such findings of fact had

been recorded by the authorities holding an enquiry based on a show cause notice.

Rule 9 of the Rules of 1964 lays down the procedure for imposing penalties,which can be done only after holding an enquiry on the basis of

definite charge to be framed based on statement of allegations to be furnished to the delinquent employee. In the present case, such procedure has

evidently and admittedly not been followed. In view of the above, the proceedings initiated by the department based on the show cause notice dated

04.10.2012 is held to be unsustainable in the eye of law and the same is accordingly set aside. However, notwithstanding the order passed by this

Court in the present proceedings, it would remain open for the department to proceed afresh against the writ petitioners in accordance with the

provisions of the Rules of 1964 and also by adhering to the principles of natural justice, if so advised.

 With the above observation, these writ petitions stand disposed of.