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2006 DIGILAW 934 (GAU)

Rehena Sultana v. State of Assam

2006-09-28

B.K.SHARMA

body2006
1. All the writ petitions pertain to 1996 employment notice for appointment of Assistant Teachers in provincialised MV/ME/ME-Madrassa, Senior Basic, Junior Basic and L.P. Schools of different districts of Assam. In this batch of writ petitions the matter pertains to Dhubri District. 2. As stated above, the employment notice was issued in 1999 and the guidelines of selection of candidates were issued on 28.4.1997. According to the petitioners they had offered their candidatures, they being eligible for appointment, but the selection was delayed for undisclosed reasons. Eventually, due to their pressure, the Sub-Divisional Selection (Committee held its meeting on 30.12.1999 and prepared the select list in respect of ME school teachers. Again on 13.3.2001, the Sub-Divisional Selection Committee prepared the select list for primary teachers. 3. It is the grievance of the petitioners that although the select list has been prepared, but same has not been acted upon. But on the other hand, the respondents issued the impugned notification dated 3.12.2003 notifying that any select list published prior to 1.4.2001 and any matters thereto would not have any affect with the date of publication of the notification. The notification reads as follows: "GOVERNMENT OF ASSAM EDUCATION DEPARTMENT ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION No. A(I)E. 650/2003/68 Dated the 3rd December, 2003 The lists of candidates, prepared by the competent authorities after conducting the test or interview, or both, in the prescribed manners, stand automatically expired and become invalid after one year from the date of its publication unless extended by the Government or by the competent court by specific order for the specific purpose. Accordingly, after careful consideration of the matter, the Governor of Assam is pleased to declare all such existing lists of candidates of the Department of Elementary and Secondary Education, commonly called as Select lists, published prior to the 1st of April, 2001, as expired with immediate effect. Any matter pending at any forum on the basis of such lists shall become infructuous from the date of the publication of this Notification. Sd/- Secretary to the Government of Assam Education Department" 4. The petitioners have placed reliance on the orders passed by this court in some of the writ petitions filed earlier directing the respondents to consider the case of the petitioners therein. They have also placed reliance on the purported select list dated 13.1.2001 of L.P. School teachers. Sd/- Secretary to the Government of Assam Education Department" 4. The petitioners have placed reliance on the orders passed by this court in some of the writ petitions filed earlier directing the respondents to consider the case of the petitioners therein. They have also placed reliance on the purported select list dated 13.1.2001 of L.P. School teachers. According to them the order passed by this court in some of the writ petitions, one of which is W.P.(C) No. 5004/2001, has also not when complied with. The order dated 21.1.2004 passed in W.P.(C) No. 5004/2001 reads as follows : "Heard the learned counsel for the parties. The matter relates to selection and appointment of Assistant teachers in LP and ME schools in the District of Dhubri. As per the averment made in the writ petition the Selection was held in the year 1997 and the select list was published in 2001. However, the petitioners have not annexed any copy of the select list. According to the petitioner, their names appeared in the said Select list and have indicated their serial Nos. in paragraph 11 of the writ petition. No affidavit in opposition has been filed on behalf of the official respondents. However, as per the averment made in Miscellaneous Case No. 1414/2001 filed on behalf of the respondent Nos. 4 and 5 the select list was prepared without holding any interview and that no select list has been published. Mr. B. J. Talukdar, learned counsel appearing for the official respondents submits that as per the policy decision taken by the government. Selection and select list made prior to 1st April, 2001 has been rendered infructuous and, thus, even if any select list was prepared, as per said policy decision of the Government, the petitioners cannot be given appointment. In-this connection, he has produced the Notification No. A(I)E.650/2003/68 dated 3rd December, 2003. Considering the above submissions and the materials on record, this writ petition is disposed of with a direction to the Director of Elementary Education, Assam (respondent No. 2) to deal with the matter in accordance with law. While dealing with the matter and disposing of the same, he may seek necessary advice from the Secretary in the Education Department and also take into account all the relevant considerations including the aforesaid notification dated 3rd December, 2003. While dealing with the matter and disposing of the same, he may seek necessary advice from the Secretary in the Education Department and also take into account all the relevant considerations including the aforesaid notification dated 3rd December, 2003. This shall be done within a period of three months from the date of receipt of the certified copy of this order which the petitioner may submit before the said authority along with a copy of the writ petition and the enclosures thereof. Writ petition stands disposed of. No costs." 5. I have heard the learned counsel for the petitioners and have also heard Mr. M.K. Choudhury, learned senior S.C. assisted by Mr. M.R. Pathak, learned S.C., Education Department, Government of Assam. 6. What is the case of the petitioners ? They have simply contended that pursuant to the advertisement issued in 1996, they appeared in the selection and the select list for ME School and L.P. School teachers were prepared in 1999 and 2001 respectively. Although they have annexed the purported select list of L.P. School Teachers, but the select list of ME School Teachers has not been annexed. Even the list of L.P. School Teachers annexed in W.P.(C) No. 6406/2005 does not bear the signature of the members of the Selection Board. It also does not bear any official seal, etc., and it cannot be said to be a published select list. No credence can be given to such a list, so as to conclude that the petitioners the entitled to get appointment on the basis of the said select list. 7. In the counter affidavit filed by the respondents in W.P.(C) No. 87647 2004, the stand taken is that the validity of the select list is only for one year and that the Government as a policy matter, decided to issue the 'impugned notification to avoid complications in the matter of selection and appointment. Although it is not specifically pleaded that no select list has been published, but from the materials on record, it is evident that no select list has been published. Thus, if no select list was published, irrespective of the impugned notification dated 3.12.2003, the petitioners do hot have any vested right. Even otherwise also, mere inclusion of names in the select list does not confer any indefeasible right to the candidates. 8. Thus, if no select list was published, irrespective of the impugned notification dated 3.12.2003, the petitioners do hot have any vested right. Even otherwise also, mere inclusion of names in the select list does not confer any indefeasible right to the candidates. 8. The respondents have made their position clear that they did not act upon the selection process initiated pursuant to 1996 advertisement and if any select list was prepared, same has become redundant by virtue of the impugned notification dated 3.12.2003. Even otherwise also, it will not be prudent to issue any direction to the respondents to do in a particular manner towards publication of the select list and/or to make appointment on the basis of such select list after long 10 years of the advertisement issued in 1996. 9. As noticed above, some of the writ petitions pertaining to the same matter as in the instant case have been disposed of. One of the order, has been quoted above. In terms of the said order, the Director of Elementary Education, Assam was to deal with the matter in accordance with law by taking necessary advice from the Secretary to the Government of Assam in the Education Department, about the relevant facts and materials detailed in the said order. However, it is the grievances of the petitioners that the director has not passed any order till date. This court having already passed the order directing the director to act in a particular manner, cannot issue any further direction. If there was any violation of the order of this court, it was open for the petitioners involved in the said writ petitions to take recourse to such legal action as would be available to them. However, the instant batch of writ petitions having been decided on merit, the said order dated 21.1.2004 passed in W.P.(C) No. 5004/2001 has become redundant. On merit, I do not find any indefeasible right of the petitioners which can be said to have violated, warranting interference of this court by issuing any mandamus to the respondents. 10. If the plea of the petitioners that they have been selected is to be accepted, the burden lies on the petitioners to establish that the valid select lists, in fact, were published and that their names were included in the list and that they come within the zone of consideration for appointment according to vacancy position. 10. If the plea of the petitioners that they have been selected is to be accepted, the burden lies on the petitioners to establish that the valid select lists, in fact, were published and that their names were included in the list and that they come within the zone of consideration for appointment according to vacancy position. As noticed above, nothing has been brought on record to show that any such valid select list was published. It is also well settled principle of law that mere inclusion of name in the select list does not confer any indefeasible right to the selected candidate for appointment. By now, it is known that in the Education Department it has become a common phenomenon to take recourse to illegal appointments and the select lists are being prepared at the behest of political bosses. 11. Even in this batch of, the writ petitions, the petitioners have not been able to highlight as to how the selection was conducted and as to whether it comprised of any written examination and/or interview and/ or both. For any kind of selection, definite criteria are to be adopted. The petitioners have not even obliquely stated as to whether any such selection was conducted. It is also not the plea of the petitioners that the select list was prepared on the basis of respective merits of the candidates in their final examination. Rather, from the statements made in the writ petitions it is seen that the purported select list of 2001 was prepared on 13.3.2001 in a meeting held on that day at the office of the then Minuter of Labour and Employment which purportedly scrutinized the earlier select list of 30.12.1999. The select list cannot be prepared in that manner. 12. It is always desirable that definite criteria are adopted toward preparation of select list and the candidates are selected following those criteria. It cannot be as per the whims and caprices of the political bosses. Having regard to such circumstances, if the Government took the policy decision not to act upon any select list prepared prior to 1.4.2001, same cannot be said to be an arbitrary exercise of power. It cannot be as per the whims and caprices of the political bosses. Having regard to such circumstances, if the Government took the policy decision not to act upon any select list prepared prior to 1.4.2001, same cannot be said to be an arbitrary exercise of power. Even otherwise also, no select list having been published and the purported select list as projected by the petitioners being not in conformity with the requirements of the rules, the respondents cannot be directed to act upon the same. 13. As per the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977, the Selection Committee is to be constituted by the Sub-Divisional level Advisory Board. As to who shall be the Chairman and Secretary of the Selection Committee has also been indicated in the Rules. Selection is to be conducted by interviewing the candidates and the select list is to be prepared in order of merit. In none of the writ petitions, there is any indication of following the procedure laid down in the rules for conducting-the selection. Even the purported select list does not bear the signatures of the Secretary and other members. 14. After the delay of long 10 years, since the employment notice was issued, even otherwise also, it will not be prudent and advisable to issue any mandamus to the respondents to act upon the selection process, even it was initiated. It will be appropriate for the respondents to go for fresh advertisement and selection process adhering the sound principle pertaining to the selection, more particularly, in a sensitive matter like appointment of school teachers. Needless to say school teachers are the foundation of the future of the students. 15. In view of the above, I am afraid, no mandamus can be issued to the respondents to act in a particular manner. No vested and indefeasible right of the petitioners having been infringed, this court does not have any other option than to reject the claim of the petitioners. 16. All the writ petitions stand dismissed, leaving the parties to bearing their own costs.