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1995 DIGILAW 92 (GAU)

State of Assam v. Margherita Mahakuma Prathamik Brittidhari Shikshak Sanmelani

1995-05-07

A.K.PATNAIK, V.K.KHANNA

body1995
V. K. Khanna, C.J. - This writ appeal has been filed against the judgment of the learned Single Judge dated 16.6.94 given in Civil Rule No.1497 of 1994. 2. In the Civil Rule, the termination order of 368 stipendiary teachers whose services had been terminated has been challenged mainly on the ground that they had been selected and their appointments have been cancelled without affording them an opportunity. It has been alleged in the Civil Rule that they had appeared before the Interview Board and they had been selected and their appointments can only be canceled after affording opportunity to them. 3. We have heard Mr. P. Prasad, Special Counsel appearing for the State of Assam/appellants and Dr NK Singh, the learned counsel for the petitioners/ respondents. 4. For the purposes of adjudicating the controversy raised in this appeal, the relevant admitted facts are that appointments to the stipendiary teachers, admittedly, is governed by the provisions of a statutory rule, i.e., the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as the Rules, 1977). 5. Rule 3 of the aforesaid Rules, 1977 prescribes the mode of appointment. The relevant Rule 3 runs as follows : "3. (i) Method of recruitment: In the month of January every year the DI shall invite applications in prescribed form for vacancies of elementary school teachers which are likely to occur in the year in his establishment. (ii) Age : (a) A candidate shall be within the age limit on 1st January of the year of recruitment as prescribed by Government. (b) The upper age limit shall be relaxed, in favour of Scheduled Castes and Scheduled Tribes as per Rules made by Government. (iii) Qualification : (a) Matriculation/High School Leaving Certificate Examination or any other examination of equivalent standard shall be the minimum qualification for the post of teacher in Lower Primary and Junior Basic Schools preference being given to candidates trained in Senior Basic, Normal and Junior Basic Training Courses. (b) For MV and Senior Basic Schools qualification shall be Metric, Normal or PU or Intermediate or its equivalent. (iv) Character: A candidate shall furnish the certificates of character from (a) the Principal, Academic Officer of the School/College last attended by the candidate and (b) a respectable person who- is well acquainted with (not related to) the candidate. (b) For MV and Senior Basic Schools qualification shall be Metric, Normal or PU or Intermediate or its equivalent. (iv) Character: A candidate shall furnish the certificates of character from (a) the Principal, Academic Officer of the School/College last attended by the candidate and (b) a respectable person who- is well acquainted with (not related to) the candidate. (v) Selection Committee : There shall be a Selection Committee in each educational Sub Division to be constituted by the Sub Divisional Level Advisory Board for Elementary Education. The Chairman of the Sub Divisional Level Advisory Board for Elementary Education and the DI of Schools shall be the Chairman and Secretary of the Selection Committee respectively. (vi) On receipt of applications, the Selection Committee shall scrutinise the mark sheets and other necessary testimonials of the candidates and prepare a list of candidates for interview by the Selection Committee. The Selection Committee shall then finalise the list of successful candidates in order of merit after interview and shall put up the list before the Board for approval. While approving the list, the Board shall be guided by the declared policies of the Government and instructions issued by the Government from time to time. After approval of the list by the Board the same shall be sent to the Director of Elementary Education for his final approval. The Deputy Inspector of Schools will appoint the selected candidates in order of merit from the list approved by the Director of Elementary Education as and when required as per Government Rules and Government instructions for the time being in force. The list shall be valid for one year unless its validity is extended by Government, (vii) Reservation : There shall be reservation of posts for Scheduled Castes and Scheduled Tribes as per rules made by Government from time to time. (viii) Physical fitness : (a) A candidate shall be of sound health both physically and mentally and free from organic defects or bodily infirmity likely to interfere with his/her duties. (b) A candidate shall be required to undergo medical examination and to produce a medical certificate of fitness. (ix) An appointed candidate may be required to undergo such in service training as Government may decide from time to time." 6. (b) A candidate shall be required to undergo medical examination and to produce a medical certificate of fitness. (ix) An appointed candidate may be required to undergo such in service training as Government may decide from time to time." 6. A bare perusal of the aforesaid Rule 3 of the Rules, 1977 would make it clear that in the month of January every year, the Deputy Inspector (DI) of Schools shall invite applications in prescribed forms for filling up the vacancies of Elementary School teachers which are likely to occur in the year in his establishment (emphasis provided). Rule 3 (v) stipulates of a Selection Committee in each educational Sub Division to be constituted by the Sub Divisional Advisory Board for Elementary Education and the DI of Schools will be the Secretary of the aforesaid Selection Committee. The Selection Committee has to make the selection on the basis of scruitinising the mark sheets of the candidates and other testimonials and also interviewing them which clearly means that a select listen merit has to be prepared out of which the vacancies as contemplated under Rule 3 (i) of the Rules, 1977 have to be filled up for appointment of stipendiary teachers in each Sub Division. 7. According to Mr. P. Prasad, the learned Special Counsel for the appellants, from the original record it is clear that 258 posts of elementary stipendiary teachers were sanctioned for Dibrugarh and Tinsukia and at the time of selection of the aforesaid 258 posts, Margherita was a part of Tinsukia. Out of the aforesaid 258 posts' allocation made for appointment as stipendiary teachers, 85 fell in the share of Margherita. At the relevant time before bifurcation of Margherita as a Sub Division, 62 vacancies had already been filled leaving a balance of 23 such vacancies to be filled up in accordance with the provisions of Rule 3 (i) by the Selection Committee. It has also been mentioned that two more posts have also been created for Margherita Sub Division by name and six more vacancies were likely to fall vacant in the year in question because of retirement, etc, from amongst the existing posts. In totality, therefore, at the relevant time only thirty-one posts were available for being filled up for which a recruitment had to be taken place in accordance with Rule 3 of the Rules, 1977 as discussed above. In totality, therefore, at the relevant time only thirty-one posts were available for being filled up for which a recruitment had to be taken place in accordance with Rule 3 of the Rules, 1977 as discussed above. This has not been disputed that 368 appointments have been made by the DI of Schools, Margherita for filling up these thirtyone posts. The petitioners/ respondents had been in the aforesaid posts for about a period of four months and hadtelso received salary for a few months. 8. On the aforesaid admitted facts, the Court is restrained to observe the lack of supervision which has been exercised by the Director of Elementary Education inasmuch as for filling up thirty-one posts, 368 appointments, i.e., more than ten times had been issued by an authority of level of DI of Schools. Valuable state money has been unnecessarily spent by appointing stipendiary teachers to 368 persons even though only thirty-one posts were existing and payments were being made for 368 stipendiary teachers unnecessarily as there were not so many posts in existence at all. 9. An affidavit has been filed in this writ appeal which has been admitted in which the State of Assam has come up with a case that the DI who had issued the aforesaid appointments has been placed under suspension and disciplinary proceedings are going on against him for having issued appointments in such a reckless manner causing great loss to the public exchequer. 10. The crucial question which now arises for consideration is that appointment to 368 teachers had been issued. It has not been disputed that even the petitioners/respondents cannot produce before the Court the select list which may have been prepared by the Selection Committee in accordance with Rule 3 of the Rules, 1977. In the appeal, it has been boldly averred that the petitions/ respondents had been interviewed and duly selected. In our opinion, this is absolutely a vague statement. In case a regular selection had taken place, there is no reason as why there would not be a regular select list which would be duly published and made available to everyone and which could be produced before the Court. Mr. P. Prasad, the learned counsel for the State of Assam has made a categorical statement that on the original record, no select list exists. Mr. P. Prasad, the learned counsel for the State of Assam has made a categorical statement that on the original record, no select list exists. Moreover, a very important thing may also be noted that as far as the statutory Rules, 1977 are concerned, they have taken care that the Selection Committee will make the select list in accordance with the procedure prescribed under Rule 3 of the aforesaid Rules. But after approval of the list by the Board, the list will be sent to the Director of Elementary Education for his final approval (emphasis provided). Mr. P. Prasad has made a statement before us that no final approval of the Director of Elementary Education exists to any alleged select list. On the other hand, what we find is that the DI of Schools, Margherita, has placed under suspension and disciplinary proceedings going on against him precisely on the question as to how he has offered appointment to 368 persons when there were only thirty-one existing posts and that too without any selection. 11. Dr. NK Singh, the learned counsel for the petitioner/respondents has vehemently urged before us that even if for argument's sake what is being said by the appellants is taken to be correct, the 368 stipendiary teachers to whom appointment letters have been issued by the DI of Schools are entitled to get an opportunity before their appointment orders are cancelled in consonance with the principles of natural justice. Mr. P. Prasad has, however, placed reliance on a decision of the Apex Court in the case of Union Territory of Chandigarh vs. Dilbagh Singh & others, (1993) 1 SCC 154 in which it has been laid down that if it is found that anything has been done in a dubious, unfair and injudicious manner, the cancellation of that selection will be held to be bonafide and for valid reasons and in such a situation a pre decisional hearing is not necessary. Dr. NK Singh has, however, urged that the aforesaid decision of the Apex Court only applies to the case of select list and will have no application where the appointments have in fact been made. 12. Dr. NK Singh has, however, urged that the aforesaid decision of the Apex Court only applies to the case of select list and will have no application where the appointments have in fact been made. 12. We are, however, of the opinion that if a statute provides that selection can be made only in a particular manner in the eyes of law the selection can only be recognised of any semblance of selection process has started under that statutory provision. However, if a Court of law comes to the conclusion that there has been no exercise under the statutory rules and in violation of the statutory rules, only for the purposes of making personal gain some orders have been fictitiously issued by the authority as in the present case, the Court is not bound to interfere in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution on the grounds of principles of natural justice. The law is well established that while exercising the powers under Article 226 of the Constitution where the Court exercises its extra ordinary jurisdiction, the Court may not even interfere with a void order. However, in the present case, as we have stated, the facts are very shocking for against thirty-one posts, 368 appointments have been made. There is not even a semblance of the process of selection which had to be followed under statutory Rule 3 of the Rules, 1977 and as has been observed above, there has been a drain on the State Exchequer by making appointments in this indiscriminate manner after flouting the statutory Rules, 1977. In this situation, we are of the opinion that the principles laid down by the Apex Court in the case of Union Territory of Chandigarh vs. Dilbagh Singh & others (supra) will equally apply to the present case under appeal and this Court's extra ordinary jurisdiction under Article 226 of the Constitution is not to be I exercised in favour of such petitioners. 13. Before parting, however, we may observe that it is not the 368 stipendiary teachers on whom the blame can be placed as the Court can take judicial notice of the fact that young educated persons who are in need of employment may succumb to any temptation. 13. Before parting, however, we may observe that it is not the 368 stipendiary teachers on whom the blame can be placed as the Court can take judicial notice of the fact that young educated persons who are in need of employment may succumb to any temptation. However, there is a great statutory responsibility which has been given to the Director of Elementary Education, to the DI of Schools and even to the financial authority of the State to have a check in supervision that the valuable money of the State Exchequer is not squandered in the way it has been done in this case. We would, therefore, issue a writ of Mandamus to the Chief Secretary to the Govt of Assam to get an enquiry instituted in this matter by constituting a high level committee which will go to this question as to how this has been possible that for thirty-one posts of stipendiary teachers, 368 appointments have been made and the valuable money from the State Exchequer have even been paid for several months without being detected even by the Finance Department. We are confident that action will be taken against the earring officers so that the public money is not squandered and also the careers of young people are not jeopardised by offering illegal appointment which have to be cancelled subsequently only by an action of an officer of the level of DI of Schools. We expect that the Director of Elementary Education has been appointed to keep an overall view of the Department and we are of the opinion that in case a constant review would have been kept, it would not have been possible that such a situation which shocks the conscience of the Court which would have arisen that against thirty-one posts three hundred and sixty eight appointments are made. We expect that the Chief Secretary of Assam will get the enquiry concluded preferably within a period of six months from the date of receipt of our order. 14. In our opinion, in case ultimately it is found that the DI of Schools was solely liable for the aforesaid appointments or there was connivance on the part of any other officers of the State Government in making these appointments, we find this to be a fit case where the loss to the State Exchequer should be recovered from the salary of the erring officers. 15. For the reasons stated above, the present appeal is allowed. However, looking to the entire facts and circumstances of the case, the parties shall bear their own costs. An authenticated copy of this judgment will be sent to the Chief Secretary by Regd A/D.