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2005 DIGILAW 772 (GAU)

Bangkim Kalita v. State of Assam

2005-11-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. Having regard to the nature of grievance raised in both the writ petitions by the same very Petitioner, they were heard together and are being disposed of by this common judgment and order. 2. While in the first writ petition, i.e. W.P.(C) No. 3296/01, the Petitioner has prayed for a direction to the Respondents for his appointment as Graduate Teacher in any existing vacancy or that would arise in the particular school (Bani Vidyapeeth Higher Secondary School, Samagun). In the second writ petition, i.e. W.P.(C) No. 4350/03, the Petitioner has assailed the legality and validity of the order by which the Respondents No. 5 in that case has been transferred to the aforesaid school on his own request. It is the case of the Petitioner that by the said transfer of the Respondent No. 5, the prayer made in the first writ petition has been sought to be made infructuous. 3. The issue raised is in a very narrow campus. According to the Petitioner he had offered his candidature for appointment as Graduate Teacher in High, Higher Secondary and High Madrassa schools, in response to an advertisement issued in 1996. However, no copy of such advertisement has been annexed to the writ petition. Be that as it may, according to the Petitioner an interview was held in 1997 and he dully appeared in the said interview. However, the Petitioner has not annexed any copy of the call letters etc. and has also not disclosed as to on which date such interview was held. The Petitioner has also claimed the benefit of 10% reservation of vacancies, he being a son of a retired teacher. 4. Further case of the Petitioner is that pursuant to the said advertisement and interview, a select list was published on 31.03.01. Such select list was published Sub-Division wise and the name of the Petitioner appeared in the select list prepared for Rangia Sub-Division in the District of Kamrup. He was placed at serial No. 9. As per the select list, the Petitioner was to be appointed as Assistant Teacher (Graduate) in the aforesaid school, i.e. Bani Vidyapeeth Higher Secondary School, Samaguri against the resultant vacancy of one Shri Pabitra Saikia who was to retire on 30.04.01. Altogether 10 names were included in the select list. 5. He was placed at serial No. 9. As per the select list, the Petitioner was to be appointed as Assistant Teacher (Graduate) in the aforesaid school, i.e. Bani Vidyapeeth Higher Secondary School, Samaguri against the resultant vacancy of one Shri Pabitra Saikia who was to retire on 30.04.01. Altogether 10 names were included in the select list. 5. On the basis of the aforesaid purported select list, the Petitioner claims his appointment in the aforesaid school. He also claims the benefit of 10% reservation, he being the son of a retired teacher. However, as per his own pleaded case his father was to retire in January, 2002 and thus the Petitioner wanted the benefit of such reservation even before retirement of his father from service on attaining the age of superannuation. 6. In paragraph-10 of the writ petition the Petitioner has made a statement that all the persons included in the purported select list have been appointed to the exclusion of the Petitioner. However, such appointees including the appointment of the candidate at serial No. 10 whose position was below the Petitioner's position have not arrayed as party Respondents. In fact, the Petitioner has made a statement that he does not have any grievance against the persons appointed including the person whose name appeared below him. 7. In paragraph-12 of the writ petition, the Petitioner has stated that one Smti Gita Kalita on her appointment as Assistant Teacher in Bani Vidyapeeth Higher Secondary School, came to join there on 04.04.01. However, since there was no vacancy she could not join in the school. In paragraph-13 of the writ petition, the Petitioner has stated that a vacancy occurred in January, 2002 in the school and thus he was entitled to be appointed against the said post and alternatively to any other post in any other school. 8. When the first writ petition was pending, the Petitioner filed the second writ petition assailing the legality and validity of transfer of the Respondent No. 5 in that case to the aforesaid school, i.e. Bani Vidyapeeth Higher Secondary School. According to the Petitioner, on the basis of his selection he alone was entitled to be appointed against the said post which was filled up through the Respondent No. 5. 9. The Respondents have filed two counter affidavits denying the claim of the Petitioner. According to the Petitioner, on the basis of his selection he alone was entitled to be appointed against the said post which was filled up through the Respondent No. 5. 9. The Respondents have filed two counter affidavits denying the claim of the Petitioner. It is specific case of the Respondents that no select list was published on 31.03.01 as has been contended by the Petitioner. On the other hand, a select list was prepared and published in 29.03.01 containing the names of 96 candidates. It is the stand of the Respondents that all the 96 candidates have been appointed and thus, the select list published on 29.03.01 has been exhausted. It is the definite case of the Respondents that the purported select list annexed to the writ petition (Annexure-2) is not a select list and the valid select list published on 29.03.01 has already been acted upon by appointing all the selected candidates. 10. The Director of Secondary Education, Assam who had filed counter affidavit craved leave of the Court to produce the select list dated 29.03.01. However, when the same was directed to be produced, the said Director expressed his inability to produce the same. Reasons thereof have been assigned in the second affidavit filed by him. In the second affidavit also the basic stand as in the first affidavit is that the purported select list annexed to the writ petition is not a select list and in fact, the select list published on 29.03.01 containing as many as 96 names is the genuine select list, has been reiterated. As regards the non availability of the select list dated 29.03.01 in original, the Director has stated in the second affidavit that the same was in possession of one Shri Basanta Kumar Das, his predecessor who is now the Deputy Director, SCERT, Assam. He has stated in the second affidavit that in spite of his best effort, he could not be able to collect the original select list from the said incumbent about which he duly informed the Commissioner and Secretary to the Govt. of Assam in the Education Department. 11. The Director of Secondary Education, Assam has also filed a second additional affidavit reiterating the same stand as in the earlier two affidavits. Such an affidavit as has been filed explaining the circumstances in which the select list in original is not available. of Assam in the Education Department. 11. The Director of Secondary Education, Assam has also filed a second additional affidavit reiterating the same stand as in the earlier two affidavits. Such an affidavit as has been filed explaining the circumstances in which the select list in original is not available. However, the Respondents have produced the records containing the photo copy of the select list comprising of 96 candidates. 12. The Petitioner has filed a reply affidavit questioning the validity of the select list of 29.03.01 and reiterated the stand in the writ petition that the select list dated 31.03.01 which has been annexed as Annexure-2 to the writ petition is the valid select list. According to the Petitioner the notification reconstituting the District Level Selection Board having been issued on 29.03.01, there was no question of preparation of the select list on the same date. The Petitioner has also placed reliance on the decision of this Court dated 26.03.02 passed in W.P.(C) No. 1364/99. According to the Petitioner, his case is covered by the said judgment and order. However, the learned Counsel for the Petitioner during the course of hearing fairly submitted that the said judgment has not been delivered in connection with the select list on the basis of which the Petitioner has claimed his appointment. 13. Mr. U.K. Nair, learned Counsel for the Petitioner strenuously argued that the Petitioner having been selected for appointment as Assistant Teacher in the Graduate Scale against future vacancy in Bani Vidyapeeth Higher Secondary School, the Respondents ought to have appointed him against the resultant vacancy arose in the school instead of accommodating the Respondent No. 5 in the second writ petition by accepting his request for transfer to that school. He submitted that in absence of the original select list containing the names of 96 candidates, the statements made by the Respondents in their counter affidavit are not acceptable. 14. Mr. V.M. Thomas, learned Standing counsel, Education Department countering the above arguments submitted that on the face of the Annexure-2 purported select list dated 31.3.01, same cannot be said to be a select list. 14. Mr. V.M. Thomas, learned Standing counsel, Education Department countering the above arguments submitted that on the face of the Annexure-2 purported select list dated 31.3.01, same cannot be said to be a select list. Referring to the records produced by him he submitted that although the original copy of the select list published on 29.03.01 is not available on records, but the photo copy of the same and the handwritten list being available, there is no question of expressing any doubt to the veracity of the statements made in the counter affidavit. He further submitted that the records clearly bear the testimony of appointment of 96 candidates and in such circumstances the plea raised on behalf of the Respondents is clear enough and liable to be accepted. 15. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. Irrespective of the claim and counter claim of the parties to the genuinity or otherwise of the select list dated 29.03.01 containing the names of 96 candidates, the question which comes up for consideration is to whether Annexure-2 list annexed to the writ petition can be said to be a select list. The words 'select list' are not available in Annexure-2 list. The heading of the list is "list of candidates for appointment in Rangia Sub-Division and other places in Kamrup District". In the normal circumstances, the selection Board prepares the select list and forward the same to the competent authority. No such forwarding letter is available in respect of Annexure-2 purported select list. It is also an admitted position that in the normal circumstances a select list itself does not indicate as to in which school the select should be appointed. Interestingly, the Petitioner whose name appeared at serial No. 9 of the list purportedly published on 31.03.01 was to be appointed against a resultant vacancy to be caused by the retirement of the incumbent on 30.04.01. Thus if the list is to be accepted as a select list, then the members of the selection Board not only considered the candidature of different incumbents for selection, but even identified the vacancies against which the selected candidates were to be appointed. This is simply not done. 16. Thus if the list is to be accepted as a select list, then the members of the selection Board not only considered the candidature of different incumbents for selection, but even identified the vacancies against which the selected candidates were to be appointed. This is simply not done. 16. On the request being made during the course of hearing, learned Counsel for the Petitioner failed to produced the copy of the Annexure-2 purported select list although the same has been certified to be true copy of the original. The purported select list (photo copy) contains the signature of the Minister, Health and Family and Welfare under the word "approved". However, there is no signature of the other members of the Selection Board. Thus, it is not discernible as to what was approved by the Minister concerned. In the normal circumstances, a select list invariably contains the names and signatures of the members of the Board, but in the instant case same are not available and only an endorsement was made by which the purported select list was approved. 17. Prima facie the Annexue-2 list is a list for appointment and cannot be said to be a select list. It is not discernible as to on what basis such a list was prepared for appointment even by indicating the schools in which the candidates included in the list were to be appointed. Except the candidate at serial No. 2, no number has been indicated against column of Roll No. appearing against each of the candidates. It is not understood as to how the recommendations could be made for appointment against the future vacancies. In this connection, the statements made in writ petition about which a mention has been made above, is pertinent to mention here again. 18. Although the Petitioner has claimed reservation against 10% vacancy earmarked for the sons and daughters of the retired teachers, but as per his own showing his father was to retire in January, 2002. The select list having been prepared in March, 2001, he could not have been included in the select list as a son of a retired teacher. In paragraph 12 of the writ petition, the Petitioner himself has stated that one Smti Gita Kalita could not join in the school in absence of any vacancy. The select list having been prepared in March, 2001, he could not have been included in the select list as a son of a retired teacher. In paragraph 12 of the writ petition, the Petitioner himself has stated that one Smti Gita Kalita could not join in the school in absence of any vacancy. However, in the same breath he has claimed his appointment and in fact, was ordered to be appointed against a vacancy which was to fall vacant on retirement of the incumbent on 30.04.01. Further in paragraph 13 of the writ petition, the Petitioner has made a statement that the vacancy against which he was selected would fall vacant in January, 2002. Thus, there is inherent contradictions in the statements made by the Petitioner on the basis of the purported select list according to which he was selected for appointment against a vacancy to fall vacant on 30.04.01. 19. As regards the claim of the Petitioner that the candidate included at serial No. 10 of the purported select list has been appointed and his position being above him, he should also be appointed, the Respondents in their counter affidavit have categorically stated that such appointment of the candidate at serial No. 10 was not account of inclusion of his name in the purported select list, but was on the basis of inclusion of his name in the select list published on 29.03.01 which contained the names of as many as 96 candidates. Thus, on this count also, the Petitioner cannot claim appointment to the post of assistant teacher. 20. As regards the contention of the Petitioner that the Respondents having failed to produce the select list dated 29.03.01, the plea of the Respondents is not to be accepted, same is not at all tenable and merits rejection. I have verified the records produced by the learned Standing counsel, Education Department. On verification of the same, it appears that the select list, in fact, was prepared on 29.03.01 which contained the names of 96 candidates. The records have also further revealed that in fact, 96 appointments were made. The name of the Petitioner was not included in the said list and thus he could not be appointed. On verification of the same, it appears that the select list, in fact, was prepared on 29.03.01 which contained the names of 96 candidates. The records have also further revealed that in fact, 96 appointments were made. The name of the Petitioner was not included in the said list and thus he could not be appointed. While it is true the original select list is not available in the file, but on the basis of the notes in the file and the hand written select list containing the names of 96 candidates it can safely be concluded that it was the select list of 29.03.01 containing the names of 96 candidates which was acted upon by the Respondents and not one dated 31.03.01 annexed to the writ petition as Annexure-2. 21. In view of the above, there is no other option than to dismiss the writ petitions. However, before parting with the case records, I deem it fit and proper to place the following on record. 22. The Director of Secondary Education Assam made a categorical statements seeking leave of the Court to produce the original select list dated 29.03.01. The affidavit was filed on oath. However, later on when the same was directed to be produced, he could not do so and advanced explanation for the same in the subsequent affidavits. If the select list was not in his possession, he ought not to have made the statement in his affidavit seeking leave of the Court to produce the same. Such kind of callous attitude and lack of responsibility on the part of a high officer like that of the Director of Secondary Education, cannot be appreciated. He is hereby warned to be careful in future. 23. While going through the file produced by Mr. Thomas, learned Standing counsel, Education Department, I have come across the undated note prepared by Mr. B.K. Das, the then Deputy Director, Secondary Education, Assam, now the Deputy Director of SCERT. It is not discernible as to in respect of which selection such a note was prepared by Shri Das. The note contained in the file in his own hand writing in his letter head made shocking revelations which I reproduce below: 1) The Minister, Education has compelled me to attend him along with staff at Hotel Belivew and Khanapara Guest House on 28th, 26th March. The note contained in the file in his own hand writing in his letter head made shocking revelations which I reproduce below: 1) The Minister, Education has compelled me to attend him along with staff at Hotel Belivew and Khanapara Guest House on 28th, 26th March. 2) The Board members have pressurized me to issue appointment letters within 2 days. 3) The Hon'ble M.P., Jayashri Mahanta, Education, Health Minister, Co-operation Minister, MAD Minister and Sports Minister have given pressure for appointments by sending police personnel and political people for their office stuff but I raised. 4) Jt. Secy., Education has also written to me but I have raised. 5) Apprehending the situation which might occur I availed C.L. w.e.f. 2nd to 16th April. 6) All appointments are made against existing vacancies that are within the limit of clearance of the Govt. 24. If the pressure reflected in the aforesaid note was mounted on the Deputy Director, it can easily be understood as to how the selection/appointment in respect of which the aforesaid note was made, was materialized. The reflections made in the note cannot be brushed aside to be untrue inasmuch had there been no truth in it, the officer concerned would not have made the note. Possibly this why all round corruption in the matter of appointment of school teachers and for that matter corruption in the Education Department as a whole is often alleged to have come to the forefront with its cancerous growth. Unless timely action is taken by someone keeping his conscience intact and with a sense of belonging to the department, corruption in the Education Department often alleged to be rampant, well spread and all pervasive in nature will retain its root for ever. In the process it is the common people, who do not have access to the corridor of power, will continue to remain at the receiving end. This is how the slogan of 'justice to all' is being frustrated and the same in the form of benefits to the nearer and dearer ones of the power that be holds the filed making a mockery of the much cherished constitutional goal of social justice to all. 25. The writ petitions are dismissed leaving the parties to bear their own costs.