Gauhati HC Reinstates Officers Accused In APSC Cash-For-Jobs Scam, Says Discharge Can't Be Sustained Without Orders From Appropriate Govt

The Gauhati High Court recently directed the Assam Government to reinstate 52 officers who were appointed in service pursuant to their selection through Combined Competitive Examination (Mains), 2013 and 2014 conducted by Assam Public Service Commission (APSC) and were discharged from service allegedly for their involvement in cash for job scam, on the ground that State had not passed any order as envisaged under proviso (b) to the second proviso of Article 311(2) of the Constitution of India.

The division bench comprising Justice Kalyan Rai Surana and Justice Malasri Nandi observed:

“…..there is nothing in the impugned judgment that the competent authorities in the State had passed an order to dispense with the enquiry in the manner as envisaged under Proviso (b) to Sub-article (2) of Article 311 of the Constitution of India. At least the learned Single Judge did not find it in the office files placed before the Court and no such document has been filed in any of the affidavit-in-opposition filed on behalf of the State respondents in the writ proceedings. Therefore, it has to be presumed that the appropriate Government has not passed any order to record its satisfaction in terms of Proviso (b) of Sub-article (2) of Article 311 of the Constitution of India.”

Brief of the Case:

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 FIR lodged by one complainant, alleging that the accused person named therein had contacted the complainant and told her to pay a sum of Rs.10.00 lakh in consideration of her recruitment to a particular post in exercise which was being carried out by APSC. Accordingly, a case was registered.

In a trap laid, the FIR-named accused was apprehended while receiving cash from the complainant. As per the charge-sheet and supplementary charge-sheets filed in that case, it had appeared that during the investigation that was carried out, the then Chairman of APSC, along with several other accused, had colluded with several candidates, including the writ petitioners and with each other and indulged in printing fake answer-scripts, which were given to the writ petitioners to rewrite answer-scripts again after the examination.

These were replaced with the original answer scripts lying in the APSC strongroom; marks were found to be manipulated by using correction fluids and erasures, and overwriting. The rewritten answer scripts either did not contain the signature of the invigilators or contained fake signatures, which did not match the signatures of the concerned invigilators.

All these were done to get the writ petitioners selected in the CCE-2013 and CCE-2014 batch of the APSC conducted examination. In the course of time, the appellants were discharged from service, and they have assailed their respective discharge by filing writ petitions, which were dismissed by the common judgment and order dated March 18, 2020. Resultantly, the appellants filed the present appeals before the division bench.

Submissions:

It was submitted on behalf of the appellants that the appellants were on probation and on completion of their respective statutory two-year probation period, the appellants must be deemed to be regular members of their respective services. It was further argued that if the State Government refuses to treat the appellants as regular members of their respective services, there would be no record as to in what capacity the appellants had been working after their probation period had been over.

It was submitted on behalf of the appellants that their services are governed by five different service rules. Therefore, all the cases ought not to have been heard and decided by the Single Judge by a common judgment and order. It was submitted that in none of the cases, the State and its authorities have arrived at a considered conclusion that the appellants are not suitable for confirmation in service, which is also a requirement of Article 311(2) of the Constitution of India.

It was submitted that it was imperative for the State to have taken recourse to departmental proceedings against the appellants. In this regard, it was submitted that the provisions of Article 311(2) of the Constitution have been violated.

Court's observation:

The Court noted that, as per the materials available on the record, the appellants were given regular posting.

“In the considered opinion of the Court, the learned Single Judge, while perusing the so-called “statement” of the said appellants alleged to have been made before the police, had failed to appreciate the question of admissibility of those statements in the light of the provisions of Sections 25 and 26 of the Evidence Act, 1872, which bars such statement to be proved against the said appellants,” the Court noted on the issue of 23 writ petitioners allegedly admitting their complicity in paying bribe to obtain service through APSC.

“By virtue of the provisions of Section 25 and 26 of the Evidence Act, 1872, a statement made by an accused cannot be proved against said accused. There are also well settled legal parameters as to how much of the statement made by the co-accused would bind the other co-accused,” the Court further observed.

The Court opined that the decision of the Single Judge to hold on the basis of the statements made before the police by 22 appellants herein that the appellants have illegally obtained service in lieu of money is not sustainable, because any statement made by an accused before the police cannot be proved against them as per the mandate of Sections 25 and 26 of the Evidence Act, 1872.

It was noted by the Court that in the impugned judgment that the competent authorities in the State had passed an order to dispense with the enquiry in the manner as envisaged under Proviso (b) to Sub-article (2) of Article 311 of the Constitution.

“Therefore, it has to be presumed that the appropriate Government has not passed any order to record its satisfaction in terms of Proviso (b) of Sub-article (2) of Article 311of the Constitution of India,” the Court said.

Thus, the Court held as follows:

1. The discharge orders in respect of all the appellants, which have been impugned in the connected writ petitions, viz., W.P.(C) 4198/2019 and 48 connected writ petitions are set aside.
2. Those appellants, who have completed their initial probation period of 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.
3. 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 referred hereinbefore, the competent authorities are directed to 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.
4. 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.
5. 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.

“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. 142) The appellants shall serve a certified copy of this order to the respondents to bring this judgment and order to their notice,” the Court directed.

Citation: 2025 LiveLaw (Gau) 31

Case Title: Kamal Debnath v. The State of Assam & Anr. & connected petitions

Case No.: WA/59/2020

Click Here To Read/Download Order