Govt to weigh legal options after HC sets aside discharge of APSC scam accused

Guwahati, June 28: Baffled at the Gauhati High Court verdict that set aside the discharge orders of the APSC scam accused candidates and had made them “liable” for reinstatement, the government will go into a huddle with legal experts and senior officials next week to chalk out its course of action.

Legal circles, which reviewed the division bench order, felt that procedural lapses on the part of the State government led to around 50 accused candidates getting reprieve from the court.

“Competent authorities of the State respondents had not passed any order as envisaged under proviso (b) to the second proviso of Article 311(2) of the Constitution of India, which requires that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry,” the division bench had observed.

Proviso (b) to the second proviso of Article 311(2) of the Indian Constitution allows for the dismissal, removal, or reduction in rank of a civil servant without an inquiry if the competent authority is satisfied that holding such an inquiry is not reasonably practicable, and this satisfaction is recorded in writing. This is an exception to the general rule requiring an inquiry before imposing such penalties on government employees.

The bench further stated that initially 60 candidates were found to have indulged in colossal fraud to secure appointment through APSC. Out of those 60 candidates, the services of 57 were discharged, while three were purportedly granted the status of approver and their services were not discharged.

However, against those three candidates, disciplinary proceedings have been drawn up.

“Such discrimination is not found supported by any law in force or approved by any judicial pronouncement of a constitutional court,” the HC observed while setting aside a single bench order that had upheld the discharge orders.

The HC order centred around the protection civil servants have under Article 311, which entails a process like informing the civil servants of the charges against them and providing a reasonable opportunity to be heard before being dismissed, and the issue whether the Dibrugarh police investigation report was the “motive” or “foundation” for the discharge of the candidates.

A termination based on motive is generally considered a termination simpliciter (a simple termination) and may not require extensive procedures. A termination based on foundation, particularly if it involves misconduct, is often considered punitive and may require due process.

Setting aside the discharge orders of the 48 candidates, the division bench had said that those candidates who have completed the probation period are liable to be reinstated within 50 days of the order. Departmental, disciplinary proceedings and trial of criminal cases against them will continue.

Against those who have not completed their probation, the government can, however, pass a “simpliciter” discharge order, stating that they were not found fit for confirmation.