Illegal appointments: Gauhati High Court asks for legal action against erring officials

STAFF REPORTER

GUWAHATI: The Gauhati High Court, in a recent judgement, pulled up certain government officials for breaking the government’s and public’s trust in them by making illegal appointments, directing the chief secretary of the Assam government to initiate criminal proceedings against them.

The HC was issuing the judgement in a batch of 13 petitions that were filed by hundreds of aggrieved Grade-IV employees who were initially appointed in the health department but were later removed from their posts, citing fake appointments and absences from duty.

In all 13 writ petitions, the petitioners, who were appointed as Grade-IV employees by the Joint Director of Health Services and Directors of Health Services, Assam, were removed by the respective removal orders, which were put to challenge before the Gauhati HC.

The appointments were made in 2004, 2005, 2008, and 2010, but all were removed in 2019 and 2020.

Perusing the petitions, the court discovered that the appointments were made by the then Joint Director of Health Services in Dibrugarh, Sivasagar, Morigaon, North Lakhimpur, Baksa, Tinsukia, Goalpara, and Golaghat.

The court found that as there are no specific Service Rules for the appointment of Grade-III and Grade-IV staff under the Health and Family Welfare Department, the Assam Public Services (Direct Recruitment to Class-III and Class-IV) Rules, 1997 were required to be followed for selection and appointment in the Grade-III and Grade-IV posts in the districts.

However, the entire exercise of appointing the petitioners by the respective Joint Directors of Health Services was without any authority and was in complete violation of the relevant provisions of the Rule of 1997 as well as the executive instructions prescribed, and as such, all such appointments were deemed illegal and not sustainable in law.

The court also found that certain statements were made to the effect that there was a valid selection process. However, there were neither pleadings with material particulars nor any documents evidencing the same. Even the orders of appointment of the petitioners in these writ petitions do not disclose that the petitioners were appointed on the basis of some selection procedure or select list, the order said.

Further, it was mentioned that as the appointments of the petitioners were well within the knowledge of all authorities concerned, including the Director of Health Services, Assam, and regularly budgetary provisions were made for the posts held by the petitioners after their appointment, no question at any point in time was ever raised with regard to the manner in which they were appointed.

If the approval of the Director of Health Services was not there, the salaries of the petitioners could not have been released. The petitioners, without any default, were receiving their salaries with effect from their respective dates of joining, and no question or doubt in their entire service career was ever raised.

Although screening committees were constituted and they screened all the appointments of Grade IV staff in the districts, no adverse report came to be made, the court observed.

The court stated, “The then Joint Directors of Health Services, the Director of Health Services, Assam, and the Treasury Officers who were releasing the salaries, with impunity, resorted to illegalities, nepotism, and favouritism by violating the provisions of the Rules of 1997, the prevailing Executive Instructions, as well as the rights of other eligible candidates under Articles 14 and 16 of the Constitution.”

The HC, therefore, opined that the question of issuance of a writ in the nature of certiorari in the present cases for setting aside the impugned removal orders does not arise in as much as all the appointments of the petitioners were illegal appointments and had no sanctity in the eyes of law for which they are ‘non est’ or do not exist. Accordingly, the Court found no merit in the batch of writ petitions.

Accordingly, the Court directed that “(a) The government officials who were responsible for facilitating such illegal appointments and the government officials who resorted to paying salaries to the petitioners without taking into account whether the petitioners’ appointment orders had SLEC or SIU approval are required to be held accountable as they have resorted to actions that have resulted in breaking the public trust reposed upon them. A constitutional duty is cast upon the state, therefore, to take action against such officials who have belied the trust of the government. This Court, therefore, directs the Chief Secretary to the Government of Assam to initiate appropriate actions against such officials as per the existing laws, including criminal actions.”

“(b) In view of the above analysis, this Court has not interfered with the impugned orders of removal. Consequently, in view of the removal of the petitioners from the vacant sanctioned posts, the government may take appropriate steps for fresh recruitment. It is the opinion of this Court that if any recruitment process is initiated with respect to those posts, the petitioners would be at liberty to apply for such posts. This Court directs the Health Department of the Government of Assam to relax and/or condone the age of the petitioners in the instant batch of writ petitions if they apply to the fresh recruitment process.

(iii) Taking into account that the petitioners have already rendered their services for which the petitioners have received salaries, the respondent Health Department shall not initiate any recovery proceedings from the petitioners in view of holding that the appointments of the petitioners were illegal and non est by this Court.”

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