WP(C) 3197/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. J. Chutia, learned counsel for the petitioners as well as Ms. R. Chakraborty, learned Sr. Additional Govt. Advocate, Assam. I have als o heard Mr. U. Bhuiyan, learned Sr. Counsel, assisted by Mrs. K.M. Talukdar, lea rned counsel for the respondents No. 5 and 6. By means of this writ petition, the 5 petitioners have challenge d the order dated 17.6.2006, by which the respondents No. 5 and 6 were appointed as Stenographer (Under Qualified) in the time scale of pay of Rs. 3010-6075/-, which was preceded by selection conducted by the Selection Board constituted for the purpose. The selection and appointment in question are in the establishment of the Deputy Commissioner, Dhemaji. According to the petitioners, they are all qualified stenographe r having requisite certificate to their credit. In this connection, the petition ers have referred to the Assam Stenographers Service Rules, 1995, in terms of wh ich a candidate for stenographer, Grade-III must have passed P.U./HSSLC or an eq uivalent examination of a recognized University or Board and must also possess N ational Trade Certificate in Stenography (English) awarded to the trainees from the Industrial Training Institution in Assam by the National Council for vocatio nal Trade and/or diploma in stenography from Government recognized polytechnic o f the State. According to the petitioners, while all of them possess the afor esaid qualification including the Trade certificate, the selected candidates i.e . the respondents No. 5 and 6 do not possess the Trade certificate in Stenograph y. However, the fact of the matter is that it is the respondents No. 5 and 6 who were found suitable in the selection and consequently they also have been appoi nted as Under Qualified Stenographer in the time scale of pay of Rs. 3010-6075/- . Although in the Rules, there is nothing to show that there is any post of Sten ographer (Under Qualified) in the same time scale of pay, but in the ROP Rules, a post of stenographer (Under Qualified) is shown to be in existence in the afor esaid time scale of pay. In the counter affidavit filed by the respondents No. 4, it has been stated that pursuant to the advertisement dated 4.4.2007, which was earlier issued, no qualified candidates could be found and consequently another adverti sement was published on 27.2.2008. In the selection conducted pursuant to the sa id advertisement, the respondents No. 5 and 6 were found suitable and accordingl y by letter dated 2.5.2008, the Deputy Commissioner, Dhemaji intimated the Commi ssioner & Secretary, General Administration (B) Department about the same. The r espondent No. 4 has also enclosed the minutes of the Selection Committee, which will go to show that out of total 110 marks, the respondents No. 5 and 6 secured 58.5 and 51.6 marks. On the other hand, the petitioners secured 35.6, 25.7, 22. 2, 26.3 and 30.7 marks. The Commissioner & Secretary, General Administration (B) Departm ent by his letter dated 1.8.2008 addressed to the Deputy Commissioner, Dhemaji r equested not to make any appointment of the selected candidates, if they were fo und to be not eligible as per the relevant rules. Prior to that the Deputy Commi ssioner, Dhemaji by his letters dated 2.5.2008 and 2.6.2008 sought for approval of the select list. In the counter affidavit filed by the respondents No. 5 and 6, t hey have contended that in response to the advertisement dated 27.2.2008, they h ad offered their candidatures in acceptance of which they were called for the se lection, in which they performed well and consequently they were appointed as Un der Qualified Stenographer. According to the said two respondents, there was no indication in the advertisement that one will have to be a qualified stenographe r with the Trade certificate from Industrial Training Institute or Government re cognized polytechnic of the State. According to them, since there was no require ment as such and what was insisted upon was the requisite qualification with sho rt hand typing speed of 80 and 30 per minute respectively, they had offered thei r candidature furnishing therewith their certificates of proficiency in stenogra phy. It has been contended that although the said certificates were not from the Institutes as envisaged in the schedule to the aforesaid Rules, but the said ce rtificates having been accepted by the authority and thereafter selection also h aving been conducted, it will be harsh if their services are terminated on that count. By order dated 19.5.2011, Ms. R. Chakraborty, learned State Coun sel was requested to obtain instruction in respect of the aforementioned communi cations dated 2.5.2008 and 2.6.2008. She has since been furnished with the instr uction by letter dated 14.6.2011. Along with the said letter, the authority in t he General Administration Department has furnished the related documents pertain ing to the advertisement and the selection. When the respondents No. 5 and 6 were selected and approval for their appointment was sought for, the Commissioner and Secretary by his aforesai d letter dated 1.8.2008 intimated the Deputy Commissioner, Dhemaji not to appoin t candidates, if they were not eligible for the post of Stenographer under the r elevant Rules, but in the meantime when nothing was communicated to the Deputy C ommissioner in respect of the approval sought for, the respondents No. 5 and 6 w ere appointed to the post of Stenographer (Under Qualified) by orders dated 17.6 .2008. It is on the basis of the said two orders, the respondents No. 5 and 6 ar e working as Stenographer (Under Qualified) for the last three years. While Mr. Chutia, learned counsel for the petitioners has insist ed for interference with the selection and consequential appointments of the res pondents No. 5 and 6, Mr. Bhuiyan, learned Sr. Counsel for the said two responde nts has submitted for protection of their services on the ground of being appoin ted as Under Qualified Stenographer and also that the advertisement having not m entioned about the requisite qualification and the said two respondents having c onformed to the requirement of the advertisement and also having been found more suitable there was nothing wrong in appointing them as Stenographer (Under Qual ified). In conformity with the relevant provisions of the Rules what is found is that the posts mentioned in the schedule to the Rules are that of Steno grapher Grade-I, II and III. In the Rules, there is no mention of any post of St enographer (Under Qualified). On the other hand in the ROP Rules a particular ti me scale of pay lower than that of Grade-III stenographer has been prescribed fo r Stenographer (Under Qualified). It is in this context, Mr. Bhuiyan, learned Sr . Counsel for the respondents No. 5 and 6 has submitted that since the responden ts No. 5 and 6 have been appointed as Stenographer (Under Qualified) their such appointment may not be disturbed. He also submits that if necessary, the authori ty may relax the requirement of the Rules exercising the power and jurisdiction as envisaged in Rule 25 of the said Rules of 1995. As to the marks secured by the respondents No. 5 and 6 vis-à-vis the petitioner have been noted above. Irrespective of the fact that the petitio ners possess the requisite Trade certificate and there by conform to the require ment of Schedule-I to the Rules, but the fact of the matter is that in the selec tion they could not qualify. On the other hand, the respondents No. 5 and 6 secu red marks which is much higher that the marks secured by the petitioners. Howeve r, as submitted by Mr. Chutia, learned counsel for the petitioners, the question that will arise for consideration is as to whether the particular requirement o f the Rules was relaxed or could be relaxed due to non-availability of suitable candidates. Although the Deputy Commissioner, Dhemaji pursuant to the select ion, sought for due approval of the Commissioner & Secretary, General Administra tion Department, but before any response was shown, the respondents No. 5 and 6 were appointed. There is no requirement of seeking such approval as per the prov isions of the Rules. In one hand, the case of the petitioners is that since the respondents No. 5 and 6 did not conform to the requirement of the Rules, their c andidatures ought to have been rejected and consequently could not have been sel ected, but on the other hand the stand of the respondents No. 5 and 6 is that th ey having offered their candidatures in terms of the advertisement and the same having been accepted, they duly participated in the selection. In one hand the c ontention is for strict application of the Rules and on other hand the contentio n is for deemed relaxation or actual relaxation of the Rules. It is also submitt ed that since the respondents No. 5 and 6 have been appointed as Stenographer (U nder Qualified) in the lower scale of pay, same by itself may not disturb the po sts of Stenographer Grade-III. All the above aspects of the matter will require consideration o f the Commissioner & Secretary to the Government of Assam in the General Adminis tration (B) Department. Accordingly, this writ petition is disposed of directing the said authority to examine the matter in the light of the discussions made a bove and the materials available on record and to pass appropriate orders as may be expedient in law. While taking action in terms of this order, the authority may also consider whether in the meantime, the two respondents have acquired the required qualification and/or whether they should be given opportunity to acqui re the same. Let the entire exercise be carried out as expeditiously as possi ble, preferably within four months from today. Let a copy of this order be furnished to Ms. R. Chakraborty, lea rned State Counsel.