Principle Of Negative Equality Cannot Be Applied: Gauhati High Court Sets Aside Discharge Orders, Reinstates APSC Officers

The Gauhati High Court has reinstated the officers of Assam Public Service Commission (APSC) who were accused of receiving cash in consideration of recruitment.

The Court was deciding a batch of forty (40) intra-Court Appeals, assailing the common Judgment of the Single Judge, which dismissed a batch of 49 Writ Petitions.

A Division Bench of Justice Kalyan Rai Surana and Justice Malasri Nandi held, “The Court is unable to accept the contention of the learned senior counsel for the appellants in W.A. Nos. 96/2022, 333/2021, 219/2020, 206/2020, 50/2021, 58/2021, 111/2020, that the investigation was tainted and there was unexplained delay in investigation and that though there were incriminating materials against other persons, but they were not arrayed as accused. In this regard, the Court is of the considered opinion that the manner in which investigation is carried out was never the subject matter of challenge in the writ petition and therefore, this issue cannot be examined in these set of intra-court appeals. Moreover, in the cases, where the stand of the learned senior counsel for the State respondents is to justify the discharge orders, the principle of negative equality cannot be applied in favour of the appellants vis-a vis those alleged persons who are situated similar to the appellants, but not proceeded with. No purpose would be served to burden this judgment and order in discussing case laws on non-applicability of principles of negative equality.”

Senior Advocates A.C. Borbora, A. Choudhury, D. Das, K.N. Choudhury, and D.K. Mishra represented the Appellants while Senior Advocate Nalin Kohli and Government Advocate H.K. Hazarika represented the Respondents.

Factual Background

The Appellants were appointed in service pursuant to their selection through Combined Competitive Examination (Mains), 2013 and 2014, which was conducted by the APSC. On the basis of the FIR lodged by one Complainant, alleging that the accused person named therein had contacted her and told her to pay a sum of Rs. 10 lakhs in consideration of her recruitment to a particular post in exercise which was being carried out by APSC. Accordingly, a case was registered and the FIR named accused was apprehended while allegedly receiving cash from the Complainant. During investigation, the then APSC Chairman along with several other accused had allegedly colluded with several candidates and indulged in printing fake answer scripts which were given to re-write answer scripts again after the examination and replaced them with the original ones lying the APSC strong room.

It was alleged that marks were found to be manipulated by using correction fluids and erasures and over-writing; the re-written answer-scripts either did not contain the signature of the invigilators or contained fake signatures, which did not match with the signatures of the concerned invigilators. All these were done for getting the Petitioners selected in the CCE-2013 and CCE-2014 batch of APSC conducted examination. In course of time, the Appellants were discharged from service and they assailed their respective discharge by filing Writ Petitions, which were dismissed by the Single Judge via common Judgment. Hence, the intra-Court Appeals were filed.

Reasoning

The High Court after hearing the contentions of the counsel, observed that the Appellants are entitled to the following reliefs –

1. The Court set aside the discharge orders in respect of all the Appellants, which were impugned in the connected Writ Petitions, and 48 connected Writ Petitions. However, it ordered that this relief is subject to the following –

i. Those Appellants, who have completed their initial probation period of 2 (two) years, and by taking into consideration the maximum extendable probation period under their respective service rules, i.e. Rule 22(1) of the Assam Civil Services Rules; Rule 21(1) of the Assam Taxation Service Rules; Rule 21(1) of the Assam Transport Services Rules; and Rule 12 of the Assam Labour Services Rules are liable to be reinstated within a period of 50 (fifty) days from the date of this judgment and order.

ii. For those Appellants whose period of probation have not been completed by taking into consideration the initial probation period and the maximum extendable probation period under their respective service rules, the competent authorities shall pass such appropriate order(s) as may be deemed fit and appropriate, considering the finding rendered in this judgment and order, as well by taking into account all the relevant factors as may be permissible in law. This exercise shall be done by the competent authorities of the respective Departments within a period of 50 (fifty) days from the date of the judgment and order.

iii. The notifications are held to be ex facie illegal and thus void ab-initio and therefore, not enforceable against the concerned Appellants so as to alter their position from a confirmed employee of the State to being reverted back to the position of a probationer.

iv. It is clarified that this judgment and order shall not come in the way of the competent authorities in the Govt. to initiate departmental/disciplinary proceedings against the appellants, in such way and manner as they may be so advised. However, the State Respondents should make an endeavour to complete the departmental proceeding within an outer limit of 90 (ninety) days from the date of its initiation.

v. For the period the Appellants were not in service, i.e. from the date of discharge till the date of reinstatement, the Appellants would not be entitled to any back wages. However, the monetary benefits for the said period shall be calculated notionally for the purpose of pensionary benefits, etc. and for calculating the current pay from the date they are prospectively reinstated in service.

vi. It would be open to the competent authority in the Govt. to keep the Appellants without any posting till the departmental/disciplinary proceeding, if any, instituted against them are brought to its logical conclusion and alternatively, it would also be open to the competent authorities to post the Appellants at such place from where they will not be able to influence the witnesses in the criminal proceeding already being tried against them.

vii. If there are any Appellants whose probation period has not been completed, they would not become entitled to be reinstated in service. However, in respect of those appellants, the competent authorities in the Govt. shall pass appropriate orders to withdraw their respective discharge order already passed and to substitute the said discharge orders with a simpliciter discharge order of not having found them fit for confirmation so that no stigma would be attached against them.

viii. The observation made by the Single Judge in the impugned judgment and order as well as by this order shall not prejudice any of the Appellants or to the State in any manner whatsoever, including in trial of criminal cases registered against the Appellants.

ix. Under such circumstances, the parties are left to bear their own cost.

x. This judgment and order shall operate prospectively from the date of this order.

Conclusion

Moreover, the Court clarified that the implementation of this order shall remain in abeyance for a period of 30 (thirty) days from the date of this order, thereby giving the State a window of such time to do the needful in terms of this order.

“The appellants shall serve a certified copy of this order to the respondents to bring this judgment and order to their notice. … The records, which were called for by this Court in a sealed cover by order dated 29.09.2023, is returned un-opened and thus, un-perused by the Court. The Court Master shall hand over the same to the learned Senior Government Advocate, who had produced the same”, it directed.

Accordingly, the High Court partly allowed the Appeals and set aside the impugned Judgment.

Cause Title- Kamal Debnath v. The State of Assam and Anr. (Neutral Citation: 2025:GAU-AS:8386-DB)

Click here to read/download the Judgment