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2008 DIGILAW 704 (GAU)

Sunanda Gogoi v. State of Assam

2008-09-16

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. A. Sarma, learned Counsel appearing on behalf of Mr. U.K. Nair, learned Counsel for the Petitioners. Also heard Mr. A.K. Goswami, learned senior Counsel who appears for Respondent Nos. 2, 3 & 4 and Mr. B.D. Das, learned Counsel appearing for the Respondent No. 5. None appears for the Respondent Nos. 6 to 16. 2. The Petitioners, 13 in numbers were serving as teachers (whose services stood terminated) in various schools within the jurisdiction of the Karbi Anglong Autonomous Council (KAAC), are before this Court to challenge the orders passed by the Respondent authorities, regularizing the services of the private Respondents and Ors., who were appointed by the KAAC authorities without any advertisement and without any selection process. The Petitioners have furnished through their rejoinder affidavit a list (Annexure R-3 Series) of 160 Assistant Teachers and a second list of 107 ME/MV School Teachers who were given appointment through pick and chose basis by the KAAC authorities and in some of whose favour, regularization orders have also been issued. These appointments and subsequent regularization have been made since April 2004. 3. This is not the first round of litigation initiated by the Petitioners. In the earlier litigation, the Petitioners had approached this Court for, inter-alia, regularization of their services as after their initial appointment for a limited period and after serving for some time with extensions granted, their services thereafter were not extended by the KAAC authorities. 4. As their services were not extended from February 2002, the Petitioners filed W.P. (C) No. 3141/2002 and W.P. (C) No. 3192/2002 praying for appropriate orders to enable them to continue in their services as well as for disbursal of their salary. After the interim order was passed by the Court on 17.5.2002 directing the Respondent Council not to replace the ad-hoc appointees by Anr. set of ad-hoc appointees and also for payment of their current and arrear salaries, a resolution was adopted on 17.5.2002 by the Executive Committee of the KAAC authorities, whereby decision was taken for annulling the services of the ad-hoc appointees with a further resolution to start a proper selection process for making selection on regular basis to the posts held by them. 5. 5. The ousted teachers once again invoked the writ jurisdiction of this Court by filing W.P. (C) No. 3514/2002 where interim order was passed on 28.5.2002 to permit the writ Petitioners to continue on ad-hoc basis till regular selection and appointments are made. 6. Thereafter newspaper advertisement was issued on 9.9.2002 inviting applications from intending candidates for filling up on regular basis the posts of Subject Teachers, Hindi Teachers, etc. in different ME, MV, High School and H.S. Schools under the KAAC. The ad-hoc appointees being eligible to apply offered their candidatures for regular appointment and were permitted to appear in the written examination held on 1.2.2003. The list of candidates who cleared the written examination was published on 30.6.2003 and the successful candidates were to be called for the viva-voce test. As all the ad-hoc teachers were not amongst the short listed candidates for viva-voce tests, the written test results were challenged by the unsuccessful candidates by filing 3 separate writ petitions being W.P. (C) No. 5178/2003, W.P. (C) No. 6198/2003 and W.P. (C) No. 5995/2003 seeking direction of the Court to enable Petitioners to participate in the viva-voce test. 7. The Respondent Council filed counter affidavit in W.P. (C) No. 3141/2002 and averred that the Petitioners were temporarily appointed on ad-hoc basis without any advertisement or selection. It was also the stand of the KAAC Authorities that it was duty bound to fill up the regular vacancies by following the provisions of law after appropriately notifying the vacancies and holding selection. 8. The Division Bench while disposing off W.A. No. 303/2003 and W.A. No. 123/2004 on 1.11.2006 arising out of the litigation initiated by the present Petitioners and Ors., through the reported decision in Ash Bahadur Chetri v. State of Assam reported in 2007 (2) GLT 691 took note in the judgment that after the Division Bench passed a status quo order on 6.4.2004 on the regular selection process initiated through the advertisement dated 9.9.2002, about 250 teachers have been appointed by the KAAC authorities in different schools without following any procedure and selection process. 8.1. The stand of the KAAC was that the appointments have been made in the year 2004 to posts beyond the purview of the advertised posts, for which the recruitment process was initiated through the advertisement dated 9.9.2002. 8.1. The stand of the KAAC was that the appointments have been made in the year 2004 to posts beyond the purview of the advertised posts, for which the recruitment process was initiated through the advertisement dated 9.9.2002. It was averred that such temporary appointments had to be resorted to in the academic interests of the students, as because the regular selection process was stalled because of the interim order passed by this Court. This stand of the KAAC was noted in the judgment on 1.11.2006. 8.2. The claim of the writ Petitioners, for regularization of their services by interfering with their termination order, was not accepted by the Division Bench in the judgment rendered in Ash Bahadur Chetri (supra) as it was found by the Division Bench that the Petitioners were not recruited through any selection process and appointment secured on illegal basis, cannot vest the appointees with any right to either continue in service or claim regularization de-hors the selection process contemplated in law. 8.3. The Division Bench also held that the regular recruitment process undertaken by the authorities would ensure participation of all eligible and interested candidates in the selection exercise for appointment to public posts and accordingly the KAAC permitted the KAAC to proceed with the selection which got stalled at the stage of declaration of the written test results. 9. But the position that is disclosed today by the counsels appearing for the parties is that the select list in pursuant to the recruitment process initiated through advertisement dated 9.9.2002 for about 101 posts of teachers has been published. But appointments on the basis of the said select list published on 24.9.2007 are yet to be made. It appears that some further litigation has been initiated with regard to the select list in question and those cases even now are pending disposal in this Court. 10. From the above narration, it becomes clear that the Respondent authorities had initiated a regular selection process for about 101 posts through an advertisement dated 9.9.2002 and the said selection process is now complete and only appointments are to be made. 10. From the above narration, it becomes clear that the Respondent authorities had initiated a regular selection process for about 101 posts through an advertisement dated 9.9.2002 and the said selection process is now complete and only appointments are to be made. But while the said selection process was stalled for sometime through a status quo order passed by this Court on 6.4.2004 in W.A. No. 123/2004, the KAAC authorities have appointed a large number of teachers without any selection and advertisement and from the information furnished by the writ Petitioners, about 160 Assistant Teachers of High Schools and 107 ME/MV Schools teachers have been given appointments on pick and choose basis without subjecting the appointees to any selection process. 11. The Respondent authorities have tried to justify such appointments on the ground that the interest of the students were sought to be protected by making such appointment. But no explanation is forthcoming as to why the appointments in such large numbers (267 or more teachers) were made without following even a rudimentary selection process. 12. What is more regrettable is the fact that the KAAC authorities have not only permitted continuance of the ad-hoc appointees, but have also issued regularization orders without any evaluation in respect of a large number of the ad-hoc teachers, thereby enabling the appointees to make a back door entry into Government service on an absolute pick and choose basis. In this manner, a large number of candidates who could have offered their candidatures for appointment to those 267 or more posts of teachers, were deprived of an opportunity to participate in the selection process and the Respondent authorities facilitated appointment of their favourites without notifying the vacancies and undertaking a selection. 13. It was the categorical stand to the KAAC authorities in the earlier round of litigations in Ash Bahadur Chetri (supra) that the teachers' posts in the Schools under the KAAC's jurisdiction earlier held by the present Petitioners on ad-hoc basis would be filled up through regular selection process by issuance of advertisement and on this basis the services of all the ad-hoc appointees were discontinued. Therefore, this Court declined to entertain a challenge to the regular selection process at the instance of the present Petitioners. 14. Therefore, this Court declined to entertain a challenge to the regular selection process at the instance of the present Petitioners. 14. But even while taking a decision to discontinue the services of the ad-hoc appointees which included the present Petitioners and deciding to go for regular selection, a large number of posts of teachers (267 or more) have been filled up on pick and choose basis without subjecting the appointees to any selection process and the authorities have also regularized the services of some of those ad-hoc appointees appointed since April 2004. 15. In the considered view of this Court, appointment to public posts cannot be made by disregarding the prescribed recruitment procedure without issuing any advertisement and undertaking a selection process and therefore the appointment given on pick and choose basis to teachers by the KAAC authorities since April 2004 has to be considered as illegal appointments. 16. Even while declaring such appointments to be illegal, this Court is conscious of the fact that only some of the appointees have been arrayed as Respondents in the instant case and even those private Respondents (Respondent Nos. 6 to 16) have kept away from the present proceeding. Under such circumstances, to direct their ouster from their services may not be justified as the affected persons are not represented in Court. But at the same time the regularization orders passed in favour of those appointees cannot be permitted to be in force as even the regularization orders have not been passed through due process. When the initial appointment itself is found to be de-hors the prescribed procedure and the Rules, absolutely on pick and choose basis, to permit regularization of such appointees would be wholly unjustified. Accordingly although the appointees are not before this Court, I am inclined to declare that the regularization orders passed in favour of the teachers appointed since April 2004 till date in different schools under the KAAC ought not to be considered as valid in law. A declaration in this regard is accordingly made. 17. In view of above declaration, this writ petition stands allowed. The Respondent authorities are directed not to treat the appointments made to the posts of teachers in different schools by the KAAC authorities since April 2004 as regular appointment, notwithstanding the regularization orders passed in favour of some of the appointees. 18. 17. In view of above declaration, this writ petition stands allowed. The Respondent authorities are directed not to treat the appointments made to the posts of teachers in different schools by the KAAC authorities since April 2004 as regular appointment, notwithstanding the regularization orders passed in favour of some of the appointees. 18. Consequently, it is ordered that the posts against which the appointments have been given on pick and choose basis ought to be filled up through a regular selection process starting with a public advertisement, to enable all interested candidates to offer their candidature and only through an appropriate selection process, the concerned posts be filled up on regular basis. 19. If in the interest of the students, the KAAC authorities desire to continue the services of the teachers appointed on ad-hoc basis since April 2004, their continuance would not come in the way of appointment of regularly selected teachers, in the posts held by such ad-hoc appointees. 20. As the KAAC authorities have disregarded the normal Rules of regular recruitment, the Respondent authorities are directed to regularly fill up the posts of teachers which have been filled up on exigency basis since April 2004 by initiating a regular recruitment process. The Respondents are directed to expeditiously complete the regular selection process and give appointment to the selected candidates. But it is made clear that the ad-hoc appointees would not get any weightage or be entitled to claim any right of preference in the regular selection process by virtue of the service rendered by them as back door appointees. It is needless to say that if the Petitioners are eligible, they are also at liberty to offer their candidature for regular selection for regular appointment. 21. Copy of this order be handed over to all the 3 learned Counsels appearing for the parties.