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2006 DIGILAW 492 (GAU)

Rukia Begum v. Azizul Islam

2006-05-24

B.S.REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. This is a classic case where an officer of Education Department of the Government of Assam has by filing a false and misleading affidavit supporting the cause of the writ Petitioner (Respondent No. 1 herein) mislead the learned Single Judge to pass an order setting aside the order of appointment of the Appellant (Respondent No. 5 in the writ petition) and also directing the official Respondents to appoint the writ Petitioner in the post of Arabic teacher (Assistant Teacher) in Balabari High Madrassa, Mangaldai, in place of the Appellant. 2. The Respondent No. 1/writ Petitioner filed a writ petition, which was registered as WP(C) No. 2732 of 1999 challenging the appointment of the Appellant as Arabic teacher in Balabari High Madrassa, Mangaldai, Darrang, contending inter alia that pursuant to the advertisement issued by the Superintendent of Balabari High Madrassa for filling up of a post of Arabic teacher, he applied and appeared in the interview on 21.08.98 and also did well expecting to get first position but he was surprised when the Appellant was appointed in the said post, even without publishing the merit list of selected candidates. The Respondent/writ Petitioner therefore prayed for setting aside the appointment of the Appellant and also for a direction to appoint him in the said post. 3. The learned Single Judge initially vide order dated 08.06.99 issued notice of motion and thereafter on 08.04.2004 admitted the writ Petitioner for hearing. What is very disturbing is that though the learned State Counsel on 08.06.99 itself entered appearance on behalf of the Respondent Nos. 1 to 3 in the writ petition, namely, the State of Assam, represented by the Secretary, Education Department; Director, Secondary Education, Assam and Inspector of School, Darrang District Circle, Mangaldai, neither any affidavit-in-opposition was filed nor the record was produced before the Court. What is more disturbing is that the Superintendent, Balabari High Madrassa, Respondent No. 4 in the writ petition, filed an affidavit on 17.03.2003 through a learned Counsel who is not the State Counsel, stating therein that pursuant to the interview held on 21.08.98, a merit list/panel list was prepared placing the Petitioner at serial No. 2, Appellant (Respondent No. 5 in the writ petition) below the writ Petitioner and Respondent No. 6 at serial No. 1. It has further been stated on oath by the Superintendent that Respondent No. 6 in the writ petition, who secured first position in the merit list was not interested to the post and though the Appellant was placed at below the writ Petitioner she brought an order of appointment issued by the Director and so he allowed her to join the service as Arabic teacher in the school as he cannot disobey the order of the Director. The Superintendent in his affidavit further stated that as the writ Petitioner was placed at serial No. 2 in the select list, he should have been appointed but all these matters has little to do after the appointment of the Appellant. 4. The learned Single Judge, thereafter, upon hearing the learned Counsel for the Petitioner as well as the learned Counsel appearing on behalf of the Respondent No. 1 to 3 allowed the writ Petitioner by setting aside the appointment of the Appellant and by directing appointment of the writ Petitioner in her place, on the basis of the submission of the learned Counsel for the writ Petitioner that though he was placed at serial No. 2 in the merit list, which of course was not published, the Appellant was appointed although he was placed in serial No. 8 in the said merit list, which was supported by the Superintendent of the Madrassa (Respondent No. 4 in the writ petition) and also by taking into account the statements made in the said affidavit to the effect that writ Petitioner was placed at serial No. 2, the Appellant below him in the merit list and the Respondent No. 6 who secured first position in order of merit, was not willing to join the post. The said writ proceeding proceeded ex-parte as against the Respondent No. 5 (Appellant) as well as Respondent No. 6 and 7 as the learned single Judge vide order dated 19.07.2002 accepted the service on them as deemed service due to non return of the acknowledgment card even after expiry of one month from the date of issuance of the notice under registered cover with acknowledgment due and as they did not appear. However, the said position i.e. receipt of the notice has been disputed by the Appellant in the present appeal. 5. We have heard Mr. J Roy, the learned Counsel for the Appellant, Mr. However, the said position i.e. receipt of the notice has been disputed by the Appellant in the present appeal. 5. We have heard Mr. J Roy, the learned Counsel for the Appellant, Mr. M.K. Choudhury, the learned senior standing Counsel, Education Department appearing on behalf of the Respondent Nos. 2, 3 and 4 herein and Mr. A.S. Choudhury, learned senior Counsel for Respondent No. 5. None appeared on behalf of the Respondent No. 6 and 7. We, vide order dated 06.01.06 also requested the learned Advocate General, Assam to assist the Court on the question whether non filing of the affidavit by the official Respondents as well as non production of record despite direction to that effect and pendency of the writ petition for more than five years, amounts to contempt of Court. The learned Advocate General has accordingly appeared and also made his submission. The learned standing Counsel, Education department also placed the original records before this Court, apart from filing affidavit by the Commissioner and Secretary to the Education Department on the merit of the writ petition, which was taken on record. No reply affidavit has been filed by any of the Respondents herein against the said affidavit. 6. The learned Advocate General, Assam on the question whether the action on the part of the official Respondents in not filing the affidavit-in-opposition and in not producing the relevant records before the learned Single Judge, in spite of the specific directions, amounts to contempt within the meaning of Contempt of Courts Act 1971, has submitted that the officer who are Respondents in the writ petition are bound to file the affidavit-in-opposition and also to produce the records called for, more so when several opportunities were given to file the affidavit-in-opposition. The learned Advocate General has further submitted that had the affidavit-in-opposition been filed by the official Respondents namely Respondent No. 2 to 4 herein, the entire fact ought have been before the learned Single Judge and in that case the Court would not have been misled by the false and misleading affidavit filed by the Superintendent of the Madrassa, which action may constitute contempt within the meaning of the contempt of Courts Act 1971, as it may amount to interfere with the administration of justice by the Court. It has further been submitted that in fact the competent authority has already decided to draw the disciplinary proceeding against the Superintendent of the Madrassa concerned for filing false and misleading affidavit before the Court. The learned Advocate General, however, has submitted that in the instant case as the Commissioner and Secretary has filed an affidavit in the writ appellate stage tendering his sincere, unconditional and unqualified apology, such apology may be accepted by this Court. 7. The Respondent Nos. 2, 3 and 4 in the appeal, who were Respondent Nos. 1 to 3 in the writ proceeding, did not file the affidavit-in-opposition in the writ proceeding before the learned Single Judge, though the learned State Counsel on 08.06.99 entered appearance on their behalf. The relevant records which were called for by the Court vide order dated 08.04.2004 and the necessary requisition though was issued by the Registry on 22.04.2004, the records were never produced before the Court though the writ petition was pending before the learned Single Judge for more than five years. The Respondent No. 5 herein taking advantage of the situation, which occurred because of the inaction on the part of the Respondent Nos. 2 to 4 in not filing the affidavit-in-opposition and not producing the records, filed an affidavit supporting the cause of the writ Petitioner (Respondent No. 1 in the appeal) which mislead the learned Single Judge in passing the judgment impugned in the present appeal. Such action on the part of the Respondent Nos. 2 to 4 has the tendency to interfere with the administration of justice, as had they filed the affidavit or produced the records the Court would not have mislead in passing the order. However, as the said Respondents have filed their affidavit in the appeal and tendered unconditional and unqualified apology regretting their action and express their remorse, we having accepted the unconditional and unqualified apology tendered by the Commissioner and Secretary, decided not to take further action on the said Respondents under the provision of the Contempt of Courts Act 1971. 8. Mr. 8. Mr. Roy, the learned Counsel appearing on behalf of the Appellant has submitted that though the service of notice on her was accepted by the learned Single Judge by drawing presumption of service, having issued the same by registered post with A/D, in fact no notice was served on the Appellant and therefore it was not within her knowledge that her appointment as Arabic teacher was under challenged in a writ petition before the High Court and hence she did not get any opportunity to contest proceeding before learned Single Judge. It has further been submitted that in any case the writ Petitioner (Respondent No. 1 herein) has never been selected for appointment as Arabic teacher and on the other hand the authority has appointed the Appellant because of her selection by the selection committee duly constituted under the provision of the Assam Secondary Education (provincialised) Service Rules, 1982 (in short recruitment rules) therefore, the judgment passed by the learned Single Judge setting aside the appointment of the Appellant, mainly on the basis of the misleading affidavit filed by the Superintendent of the Madrassa, requires to be interfered with. 9. Mr. M.K. Choudhury, learned senior Counsel appearing on behalf of the Respondent Nos. 2 to 4 in the appeal referring to the affidavit-in-opposition filed by the Commissioner and Secretary to the Government of Assam, Education Department as well as the record produced before us, has submitted that it is a fact that the writ Petitioner, who is the Respondent No. 1 herein, was never selected by the selection committee duly constituted under the recruitment rules and the Appellant, whose appointment has been set aside by the learned Single Judge was selected by the selection committee constituted under the recruitment rules and keeping in view her position in the select list and as all the persons above her were appointed, she was also appointed as Arabic teacher against the vacant post in Balabari High Madrassa School. The senior standing Counsel, Education Department has further submitted that the learned Single Judge was mislead by the Superintendent of the Madrassa by filing false and misleading affidavit to the effect that the writ Petitioner was placed at SI No. 2 in the selected list and by denying appointment to him, the present Appellant was appointed though she was placed below the writ Petitioner in the select list and for such action on the part of the Superintendent of the Madrassa, the government in Education Department, having taken a serious view of the matter, is contemplating to take disciplinary as well as criminal action against him. 10. Mr. Mahmud, the learned Counsel appearing on behalf of the Respondent No. 1/writ Petitioner has submitted that the Respondent No. 1 being highly qualified had naturally expected that he would be selected by the selection committee constituted under the recruitment rules in preference to the present Appellant and as no select list was published and instead the Appellant was appointed, the writ petition was filed challenging such appointment basically on the ground that the writ Petitioner expected that he would be placed at first position in the select list and the appointment was made in favour of the Appellant without publication of the select list. According to the learned Counsel in the absence of any affidavit and production of record by the present Respondent Nos. 2 to 4 before the learned Single Judge, the affidavit filed by the Superintendent of Madrassa was relied upon by the learned Single Judge while passing the order impugned in the present appeal. It has further been submitted that in any case the Respondent No. 1/writ Petitioner being more meritorious than the Appellant he ought to have been selected by the selection committee and therefore, the entire selection made by such selection committee by not selecting him cannot be termed as valid selection as the same was made ignoring the respective merits of the candidates. The learned Counsel further submits that keeping in view the educational background of the Respondent No. 1, the order passed by the learned Single Judge may not be interfered with by this Court in appeal. 11. Mr. A.S. Chowdhury, learned Sr. The learned Counsel further submits that keeping in view the educational background of the Respondent No. 1, the order passed by the learned Single Judge may not be interfered with by this Court in appeal. 11. Mr. A.S. Chowdhury, learned Sr. Counsel appearing on behalf of the Respondent No. 5 (Respondent No. 4 in the writ petition), the Superintendent of the Balabari High Madrass, has submitted that as he was made a party Respondent in the writ petition he thought it proper to appear and file the affidavit by engaging the learned Counsel of his own without processing the same through the Inspector of School or the Director, as it is his bounden duty to response to the notice issued by the Court. Referring to the statements made in paragraph 6 of the affidavit filed by him before the learned Single Judge, Mr. Chowdhury, has submitted that the Superintendent of Madrassa never stated in the affidavit that the writ Petitioner was placed at serial No. 2 in the select list and the Appellant position was lower than that of the writ Petitioner. According to the learned Counsel the Superintendent has made the specific statement that the panel list was prepared by him 'after viewing' the applications received by him pursuant to the advertisement and the said penal list was sent to the appropriate authority and therefore, it is not that he made a statement in the affidavit that in the final select list the writ Petitioner was placed at SI. No. 2 and the Appellant was placed after the writ Petitioner and hence there is no question of misleading the learned Single Judge in passing the final order which is under challenge in the present appeal. The learned senior Counsel referring to the affidavit filed by the Superintendent of Madrassa in the writ appellate stage has further submitted that the learned Single Judge has passed the order by misreading the affidavit filed by the Superintendent. Lastly the learned senior Counsel has submitted that in case this Court finds that there is any omission or commission on the part of the Superintendent in filing the affidavit before the learned Single Judge, he may be excused as he has tendered unconditional apology and he is ignorant about law as well as legal technicalities and terminologies and also the procedure. 12. 12. The case of the Respondent No. 1/writ Petitioner in the writ petition is that pursuant to the advertisement issued in the year 1998 he submitted his application for the post of Arabic teacher and accordingly he was called for interview and appeared on 21.08.98, but though he was expecting to secure first position in the select list on the basis of his educational qualification, he was surprised when he came to know about the appointment of the Appellant as Arabic teacher even without publication of the select list. The Respondent No. 1/writ Petitioner on the basis of the same, prayed for setting aside the appointment of the Appellant as Arabic teacher in Balabari High Madrassa and to issue a direction to appoint him in the said post. The Respondent/writ Petitioner never in the writ petition has challenged the selection procedure and in fact he claimed appointment on the basis of such selection. As observed above neither affidavit-in-opposition nor any record was filed by the present Respondent Nos. 2 to 4 before the learned Single Judge. The present Respondent No. 5 (Respondent No. 4 in the writ petition) filed an affidavit on 17.03.2003 by engaging a learned Counsel, who is not the State Counsel, though he is an officer under the Government of Assam in Education Department, stating inter alia that in the merit list/penal list prepared, the Respondent/writ Petitioner was placed at serial No. 2 and the Appellant was placed in a position lower than the writ Petitioner. It has further been sated in the said affidavit that as the person who secured the first position was not interested to join the post, the writ Petitioner should have been appointed he having placed at serial No. 2 in the select list. The contention of the Superintendent of the Madrassa in the affidavit therefore, was that a merit list/penal list was prepared wherein the Respondent/writ Petitioner was placed at serial No. 2 and the Appellant was placed after him in the select list, therefore, the Respondent/writ Petitioner ought to have been appointed as the person placed at serial No. 1 was not interested to join the post, but the authority has appointed the Appellant as Arabic teacher thought he was placed after the writ Petitioner in such merit/penal list. The learned Single Judge placing reliance on the said affidavit has passed the impugned order setting aside the appointment of the Appellant. 13. The records produced by the Commissioner and Secretary, Education Department before this Court reveals that the select list which was prepared by the Sub-divisional level selection board constituted under the provision of the recruitment rules was duly approved by the Director as required and in the said select list the name of the Respondent/writ Petitioner does not appear, meaning thereby, he was not selected for appointment as Arabic teacher. On the other hand the Appellant was selected and on the basis of her position in the said select list, prepared on the basis of merit, she was appointed as Arabic teacher in Balabari High Madrassa. 14. The Respondent No. 5 herein, the Superintendent of the High Madrassa who is the head of the institution cannot be said to be ignorant about the selection procedure required to be undertaken under the recruitment rules for the purpose of selection of candidates for appointment as Arabic teacher. If the Superintendent of the Madrassa did not know about the select list prepared by the Sub-divisional Selection Board constituted under the recruitment rules he ought not to have filed the affidavit before the Court contending that in the select list/penal list the writ Petitioner was placed at Sl. No. 2 and the Appellant was placed after him. He could have filed the affidavit contending that he has no knowledge about the select list prepared by such selection committee and also whether the writ Petitioner or the Appellant was selected. But the Superintendent of the Balabari High Madrassa did not do so. Such false and misleading affidavit filed by the Superintendent of the Madrassa mislead the learned Single Judge in passing the impugned order setting aside the appointment of the Appellant though in fact the Appellant was selected by the duly constituted selection committee and which selection was approved by the Director as required under the recruitment rules. Therefore, the action of the Superintendent of the Madrass can not be condoned by accepting the apology pleaded in the affidavit filed in the appellate stage. Therefore, the action of the Superintendent of the Madrass can not be condoned by accepting the apology pleaded in the affidavit filed in the appellate stage. Moreover, it is evident from the said affidavit filed in the writ appeal that the Superintendent of the Madrassa is not at all repentant about his action in filing the false and misleading affidavit before the Single Judge and he rather tries to justify such affidavit by playing with the word "after view" occurring in paragraph 6 of the said affidavit, by contending that he did not state that 'after interview', but what stated was after having viewed the applications received by him. Such contention of the Superintendent of the Madrassa cannot be accepted, as from the reading of the affidavit filed by him before the learned Single Judge in its entirety, it is evident that what he meant was the select list/penal list prepared after the interview wherein the writ Petitioner was stated to be placed at serial No. 2. The Superintendent has also in the affidavit filed in the writ appellate stage stated that the affidavit-in-opposition filed by him was misread and misunderstood by the learned Single Judge and the order was misconceived. From the tone and tenor of the affidavit itself, therefore, it is apparent that the superintendent of the Madrassa has no regret in filing a false and misleading affidavit before the learned Single Judge. Since the learned Single Judge was mislead by the false and misleading affidavit filed by the Superintendent of the Balabari High Madrassa, in passing the order, we are of the view that it is a fit case where cost should be imposed on the Superintendent of the Madrassa for filing such false and misleading affidavit before the learned Single Judge, which we quantify at Rs. 15,000/- (Rupees fifteen thousands). 15. The contention of the learned Counsel for the Respondent No. 1/writ Petitioner that he being more meritorious than the Appellant having not been selected, the entire selection process is vitiated and the select list prepared pursuant to such selection is not valid, cannot be accepted as the Respondent/writ Petitioner never challenged the selection process initiated and also select list prepared thereto and on the other hand the writ Petitioner claims appointment on the basis of such selection process. 16. 16. In view of the aforesaid discussions, we set aside the judgment and order dated 17.11.2004 passed by the learned Single Judge whereby and where under the appointment of the Appellant as Arabic teacher was set aside by directing appointment of the Respondent/writ Petitioner in place of the Appellant. The writ petition is also accordingly dismissed. It is further directed that the authority in the Education Department shall initiate appropriate proceeding against the Superintendent of Balabari High Madrassa as indicated by the Commissioner and Secretary in his affidavit. Inspector of School, Mangaldoi is directed to realize the cost of Rs. 15,000/- as aforesaid from the Superintendent of Balabari High Madrassa and to pay the same to Appellant within a period of one month from today and to report compliance, to the Registry of this Court.