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Judgment
The first Annexure to the writ petition is an order by the first Respondent passed on 7.4.80, It shows that as many as 64 persons nailed therein including the Petitioner were appointed to several posts. The Petitioner figured at serial No. 41 and was shown as appointed as an L.D.A. (Lower Division Assistant) in D.V.O. (District Veterinery Office). Gauhati. On 2.6.80 she was directed to submit an application through proper channel to an advertisement "for regularization of appointment". On 3.9.80 she was informed that she will have to appear before a Selection Committee on 18.9.80 for "interview and test" for the post of L.D. Assistant. Petitioner admitted that the appeared at that test but continued in service all through until 28.2.81. She lost her job in virtue of the order passed by the first Respondent on 20.2.81 (Annexure "6") which named 19 persons and stated as follows:
the services of the following Office Assistants, Typists allowed to officiate in the posts shown against them are no longer required with effect from 28.2.81.
Petitioner''s grievance projected in the writ petition assailing validity of the above order has several dimensions. In the course of bearing, however, after relevant records were produced by the Respondents, another edge was added to her grievance. Indeed, the later development became the focal point of attack on the impugned order which, we propose, therefore, to consider first.
This petition first came up for hearing before us on 21.6.84. In the course of his submission learned Counsel for the Petitioner, after perusal of the records, sought our permission to file an additional affidavit because the "Score Sheet" to which Respondent in their counter referred as Annexure "I" was not annexed in fact to the counter. On 22.6.84 learned Additional Senior Government Advocate, Mr. A.S. Bhattacharjee prayed for three weeks time to file rejoinder which we allowed. However, Respondents did not avail the opportunity allowed to them even until 12.3.85 when the matter next came up for hearing before us no rejoinder was filed. We heard counsel for the parties on that date and concluded hearing,
In the affidavit filed on behalf of the Petitioner on 22.6.84 at paragraph-4 the following statement made on oath appeared:
That the Petitioner begs to state that no written test, as is normally understood, was held by the Selection Committee constituted for the purpose of Selecting the candidates for the post of Lower Division Assistant. No common question paper was set nor any answer script was given to the candidates. There was no fixed time period for the written test. Further there has beep no policy or guideline for such written test purported by held and for which marks have been allotted. So, there was no written test in the eye of law.
But in paragraph-5 certain statements are made from, information derived from the records. It is everred that the perusal of the records reveal bizarre facts about one Shri Kanti Ram Kalita who had also taken test with the Petitioner. According to the Score Sheet he was allotted 15 marks in total and no mark had been given for knowledge in typing. Yet he got an appointment in virtue of an order passed on 21.2.81 by the first Respondent (Annexure "9"''), On the other hand the Petitioner, also according to the Score Sheet obtained 18 marks but her services were terminated and not "regularized". Respondent''s action was thus patently violative of Articles 14 and of the Constitution.
It is true that the said Kanti Ram Kalita was not imp leaded in the writ petition, But Mr. P.C. Barua, learned Counsel for the Petitioner, submits that it was the burden of the Respondents and not of Kanti Ram Kalita to satisfy the Court that the Petitioner was not discriminated. Indeed, counsel submits Petitioner could have imp leaded Kanti Ram Kalita if the facts which were disclosed in the records had been known to her earlier. For this, indeed, the Petitioner is not to be blamed because the Respondents for reasons known to them had withheld the Score Sheet until the hearing commenced. Though they pretended to annex the same, they did not do so. There is substantial force in the submissions of Mr. Barua. We must accept the position that Respondents have no case to answer and as such even after they were given opportunity to tile a rejoinder they did not do so though instead of three weeks allowed by the Court they got several months. That apart Petitioner had made a charge of discrimination, albit vis-a-vis 3rd Respondent Charu Sen Barkataki in para-13 relying on Annexure-"9". In their counter Respondents merely made the charge as respects appointment given to 3rd Respondent stating that he had appeared in the test along with others and he was even suitable for the post of L.D.A. He was a graduate with adequate knowledge in typing etc. while the Petitioner was only a Matriculate without any knowledge of typing and she also failed to pass the test. What is therefore intriguing is that if the Petitioner failed even after securing 19 marks how could Kanti Ram Kalita pass securing only 15 marks to get a berth displacing the petition who had already put in service for several months though in an "officiating capacity". No materials have been placed before us to satisfy us that the action taken against the Petitioner by removing her from service was bonafide and that it was not, motivated by the desire to accommodate Kanti Ram Kalita of any other person for that matter because the grievance is also that, as per para-4 of Petitioner''s additional affidavit, extracted above, that the selection test was farcical.
Before us, State Counsel, while endeavoring hard to support the action against the Petitioner accepted the position that she was even "unsuitable" for the job and therefore her services were validly displaced ns she was a temporary or "officiating" employee. However, it was further submitted that her unsuitability was adjudged in the Selection Test. As respects the latter submission, we have grave doubt, We find it difficult to accept, in the facts and circumstances adverted earlier, that she was disqualified in the test. Otherwise a person securing lower marks could not be held as qualified. The short question which we must address ourselves, apart from grievance made about violation of Article 16, according to us, is infringement of Article 311(2). In this connection we would refer to the decision in The Manager, Government Branch Press and Another Vs. D.B. Belliappa, wherein the Court considered the cases and circumstances of temporary Government Servants who could invoke the provision of Article 16 as well as 311(2). The Court observed as follows:
Where a charge of unfair discrimination is leveled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel, that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2), proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having, been passed in exercise of its administrative discretion under the rules governing the conditions of the service.
In the instant case we notice that not only for the first time in the additional affidavit but indeed in the very beginning, in writ petition, the Petitioner made a charge of discrimination. In the additional affidavit, however, the charge was specified and the case of Kanti Rain Kalita was brought to the fore to focus her grievance. Respondents had no case to answer and failed to discharge their constitutional duty to satisfy us that the charge was baseless. Their action, therefore, as held by their Lordships in Belliappa (Supra) is unsustainable in law. Having taken this view we consider it unnecessary to deal with the other contentions raised by Petitioner''s counsel assailing also the validity of the Selection Test and referring to us a plethora of decisions in support of the contention. Petitioner''s counsel however drew our attention to Annexures 4(1), 4(2) and 5 to submit that Petitioner''s work was found satisfactory by her superiors and that Respondents'' plea made not in the impugned order but in the counter that she was unsuitable for the work had no basis and was a subterfuge to conceal the true reason for penalising her. Indeed, counsel rightly submitted that she could not be said to have "failed" in the Selection Test as she had secured 19 marks as against 15 marks secured by a candidate who was declared successful and therefore, in the impugned order itself it was not stated that she had failed in the test. The order, indeed, is totally bald and barren and is hit by Belliappa (supra) which also approved Lord Denning''s dictum that giving of reasons is one of the fundamentals of good administration pronounced in Breen''s case (1971) I All E.R. 1148. The further significant fact admittedly is that at no time the result of the Selection Test was announced or published. This gave a handle to the Respondents to act arbitrarily.
Respondents'' failure to discharge its constitutional duty undoubtedly is the (sic) flaw which nullifies and renders their action terminating the services of the Petitioner without "inquiry" contemplated under Article 311(2) and retaining in service others similarly placed infringing Article 16. They have failed the satisfy us, as was their bounden duty to do, that their action was not violative of Article 16 and that Article 311(2) was not attracted in the instant case. Support for Petitioner''s contentions from materials on record to which we have already referred, on the other hard, is manifest in the very fact that the real reason for "termination" of services is apparently not the professed reasons of her alleged failure in the Selection Test. We are of the view that she was penalized for ulterior reasons which Respondents did not disclose to her or even to the Court.
For all the foregoing reasons we have no doubt that this petition must succeed. Accordingly, we allow the petition and make the rule absolute. The impugned order (Annexure "5") dated 20.2.81 in so far as it concerned the Petitioner is declared unconstitutional and void. The Petitioner is also entitled to her cost which we assess at Rs. 250/.