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2001 DIGILAW 318 (GAU)

Gitanjali Kalita Barua v. State of Assam

2001-12-04

D.BISWAS

body2001
D. BISWAS, J. — The petitioners in all these writ petitions were appointed as Assistant Teachers in various ME/MV/MEM schools on temporary basis. As per general instructions issued the State respondents services of all the writ petitioners have been cancelled. 2. Aggrieved thereby, the petitioners have filed the aforementioned writ petitions for quashing the Government notifications and the directions issued by the Director of Elementary Education, Assam for termination of the services of the writ petitioners and the consequential orders passed by the District administration. 3. I have heard Mr K.N. Chowdhury, learned senior counsel and other learned counsels representing the petitioners, I have also heard Mr A.K. Phukan, learned Advocate General, Assam assisted by Ms. R. Chakraborty, learned State counsel. 4. Before the grievances raised by the writ petitioners are taken up for consideration, it is considered imperative to record a few words about the facts which eventually prompted the State Government to take a decision to cancel all the appointments. It is submitted at the bar and also available from the Government letter dated 8th March, 2001 that altogether 7066 posts of Assistant Teachers in LP/ME Schools were sanctioned by the Government for all the districts in the State of Assam. It was indicated in the said letter that the Assistant Teachers of LP Schools would get a fixed pay of Rs.1800/- per month while the teachers in ME Schools would get Rs.2000/- per month. It was further stipulated in the said letter that the posts sanctioned by the Government would stands abolished w.e.f. 1.4.2002 if the Government of India does not agree to continue these posts. Out of those 7066 post 266 pots were earmarked for LP and ME Schools in Nalbari District and 350 posts for BAG Area. In this series of writ petitions we are concerned with the appointment to 266 posts of Assistant Teachers in LP/ME Schools. 5. There have been complaints from different quarters that a large number of candidates have been appointed as Assistant Teachers against 266 sanctioned posts in the District of Nalbari. Consequent thereupon the State Government, after necessary enquiry, issued directions calling upon the Director of Elementary Education, Assam to cancel all the illegal appointments made in contravention of the rules. 5. There have been complaints from different quarters that a large number of candidates have been appointed as Assistant Teachers against 266 sanctioned posts in the District of Nalbari. Consequent thereupon the State Government, after necessary enquiry, issued directions calling upon the Director of Elementary Education, Assam to cancel all the illegal appointments made in contravention of the rules. Consequently, in compliance with the orders passed by the State Government, the Director of Elementary Education issued orders to the District Elementary Education Officer and Deputy Inspector of Schools, Nalbari to cancel such illegal appointments. Thereafter, the District Elementary Education Officer issued the orders of termination and cancelled appointments of 4510 teachers made against 266 sanctioned posts. 6. Mr Chowdhury, learned senior counsel argued for the petitioners in WP(C) No. 5238/2001 and few other cases. The arguments advanced by Mr. Chowdury have been adopted by the learned counsels of other writ petitions. I, therefore, propose to confine my discussion to the arguments advanced by Mr. Chowdhury. 7. Mr Chowdhury in all fairness admitted that there has been illegality in the appointments made by the District Elementary Education Officer and the Deputy Inspector of Schools, Nalbari and submitted that under no circumstance they could have appointed 4510 candidates as against 266 available sanctioned vacancies. However, Mr Chowdhury submitted that once the candidates were appointed by the competent officers and they have been allowed to work for sometime, the authorities ought not to have cancelled their appointment without giving each of them a reasonable opportunity of being heard. Mr Chowdhury further elaborated that on appointment the writ petitioners became Government employees and they are entitled to protection under Article 311 of the Constitution of India. According to Mr Chowdhury, termination of the services of the writ petitioners without issuing notice and giving them an opportunity to make their respective submissions is violative of the principles of natural justice as well as the provisions embodied in Article 311. In support of his submission Mr Chowdhury relied upon a decision of the Supreme Court in the case Shrawan Kumar Jha & Ors.-Vs-State of Bihar &. Ors. and Shrawan Kumar Jha & Ors.-Vs-Ram Sewak Sharma & Ors., reported in 1991 Supp (1) SCC 330. 8. In support of his submission Mr Chowdhury relied upon a decision of the Supreme Court in the case Shrawan Kumar Jha & Ors.-Vs-State of Bihar &. Ors. and Shrawan Kumar Jha & Ors.-Vs-Ram Sewak Sharma & Ors., reported in 1991 Supp (1) SCC 330. 8. In the aforesaid case before the Supreme Court services of 175 numbers of teachers were terminated by the District Superintendent of Education, Dhanbad for certain reasons without affording any opportunity of hearing to them. In the facts and circumstances of that case, the Supreme Court held that no order to the detriment of the Assistant Teachers could be passed without complying with the rules of natural justice. On this conclusion, the Supreme Court set aside the impugned order of cancellation passed by the District Superintendent of Education. 9. Mr A.K. Phukan, learned Advocate General countered the aforesaid contention on the ground that there has been anomalies and improprieties in the matter of appointment of Assistant Teachers in Nalbari District which cannot be dug out by any sort of enquiry. According to Mr Phukan, the Magisterial enquiry report would show that on the basis of available documents it is not practicable to identify and segregate the genuine appointees appointed after purported selection out of 4510 illegal appointments. Mr Phukan further submitted that the report clearly shows that the appointments have been made arbitrarily on consideration other than legal and judicial and it is humanly not possible to find out whether any of the 4510 appointees was appointed after proper selection in accordance with the provisions of law. To support his contention Mr Phukan relied upon a decision of the Supreme Court in the case ofAligarh Muslim University & Ors.-Vs-Mansoor Ali Khan & Ors, reported in (2000) 7 SCC 529 in which case the Supreme Court held that there may be circumstances and certain situations in which an order passed in violation of the principles of natural justice need not be set aside under Article 226 of the Constitution. 10. 10. A Division Bench of this Court in State of Assam & Ors.-Vs-Margherita Mahakuma Prathamik Brittidhari Shikshak Sanmelani, 1996(2) GLJ 376 : 1997(1) GLT 167 held as follows: "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 purpose of making personal gain some orders have been fictitiously issued by the authority as in the preset 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 exercised in favour of such petitioners." 11. The aforesaid decision relied upon by Mr Phukan clearly shows that if a statute provides that selection can be made only in a particular manner and if the Court comes to the conclusion that there has been violation of the manner prescribed under the law, any action taken to cancel those appointments need not be interfered by the Court in its extra ordinary jurisdiction under Article 226. 12. 12. If we go by the Magisterial Enquiry Report and the pleadings of the respective parties, the only conclusion that can be arrived at is that the appointments have been made in gross violation of the established procedure of law against non-sanctioned posts exceeding 4000 in number. In such a situation, when the records of selection are not available it was obviously not possible on the part of the Magistrate to identify whether any of the candidates was appointed after due selection. Therefore, the fact as it is does not inspire this Court to conclude that the orders of cancellation en-bloc should be cancelled for non-compliance of the principles of natural justice and the provisions of Article 311. 13. However, Mr Chowdhury, learned senior counsel has drawn my attention to the seizure list seized in the connection with the Magisterial Enquiry which is available at page 22 of WP(C) 6469 of 2001. Mr Chowdhury, learned senior counsel fairly submitted that at least the persons who appear to have been selected ought not to have been disturbed by the State respondents and should have been allowed to continue in service. But this Court right at this moment cannot come to a conclusion contrary to what has been pointed out by the State authorities and the learned Magistrate who was entrusted to enquire into the matter. There is no doubt that the persons whose names have been included in the select list prima facie have a case to continue in service. For that reasons I consider that it would be appropriate to call upon the State respondents to cause an enquiry specifically relating to the select list seized by them in order to find out as to whether the select lists were prepared by the competent authorities in compliance with the selection procedure. If the State authorities after enquiry find that the select list seized by them were prepared in compliance with the provisions of law in that event, the candidates selected have to be re-instated in service forthwith only against the available sanctioned vacancies keeping in mind their respective position in the merit list. 14. If the State authorities after enquiry find that the select list seized by them were prepared in compliance with the provisions of law in that event, the candidates selected have to be re-instated in service forthwith only against the available sanctioned vacancies keeping in mind their respective position in the merit list. 14. In view of what is stated above, this Court considers that it would be appropriate to dispose of the writ petitions with a direction to the State Government to initiate an enquiry forthwith to be completed within 15th January, 2002 in order to determine the genuineness of the select lists referred to above and identify the candidates who were genuinely selected and allow them to join their respective schools as per appointment letters issued earlier and cancelled by the impugned orders. 15. Mr Chowdhury, learned senior counsel pointed out that the petitioners were appointed by some erring Government officials and they are the victims of whims and caprices of the said officials. For that reason, Mr Chowdhury submitted that the respondents may be directed to pay the pay and allowances as admissible to them for the period they have rendered service. This matter relating to payment shall be considered by the Government and appropriate orders be passed within 15th January, 2002. Besides, it has been pointed out that some of the petitioners in WP(C) No. 5695/2001 were appointed on compassionate ground under the 10% quota reserved for the sons and daughters of retired teachers. The case of such petitioners may be considered by the State Government on a different footing and orders be passed accordingly. 16. Subject to the observations made above, particularly in para 14 and 15, the writ petitions stand disposed of. 17. Registry is directed to furnish a copy of this judgment and order to the learned State counsel forthwith.