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2009 DIGILAW 38 (GAU)

Santosh Kumar Paharia v. Meghali Roy

2009-01-20

C.R.SARMA, J.CHELAMESWAR

body2009
JUDGMENT J. Chelameswar, C.J. 1. Aggrieved by judgment dated 1.6.2006 in WP(C) No. 4080/1999 the Respondents Nos. 7 to 27 therein preferred the present appeal. 2. The Respondents Nos. 1 to 6 herein were the writ Petitioners in the above mentioned writ petition. 3. By the said writ petition the writ Petitioners challenged the appointment of the Appellants herein as Assistant Teachers in the various ME schools in Kokrajhar district. 4. Each one of the Appellants herein received an order of appointment from the District Elementary Education Officer, Kokrajhar District dated 29.6.1999. Copies of such appointment orders are filed as annexures in the present appeal. 5. In the year 1993 the State of Assam passed an enactment called the Bodoland Autonomous Council Act, 1993. Under Section 3 of the said Act an Autonomous Council, to be called the Bodoland Autonomous Council, within the State of Assam is created. The area of operation of such Council is required to extend to such areas, as may be specified by the Govt. of Assam by notification in the official gazette. Admittedly the entire Kokrajhar district was notified to be an area falling within the jurisdiction of the above mentioned Autonomous Council. Such an Autonomous Council is to have a General Council and an Executive Council constituted under Section 4 and 35 respectively of the said Act. Under Section 24 of the Act the General Council, referred to above, is invested with the executive powers relating to the various enumerated subjects numbering 38 within the area of operation entrusted to the Autonomous Council. One of the enumerated subjects is education. Though the exact nature of the contours of the executive powers entrusted to the General Council are not specified in the Act we need not embark upon such an enquiry as that is not the issue in the present writ petition. 6. The case of the writ Petitioners/Respondents herein is that the official Respondents issued an advertisement for filling up of posts of Assistant Teachers. The cases of the writ Petitioners as well as the present Appellants were considered in the interview conducted for the purpose. The learned Judge by the judgment under appeal recorded at Para 3 as follows: The Advisory Board also published a list of selected candidates in the third week of May 99 in which the names of the Petitioners appeared at SL. The learned Judge by the judgment under appeal recorded at Para 3 as follows: The Advisory Board also published a list of selected candidates in the third week of May 99 in which the names of the Petitioners appeared at SL. No. 3, 19, 18, 5, 14 and 7 respectively. Obviously it means that the writ Petitioners admitted of a process of selection but claim that their names also figured in the select list as mentioned above. It is the further case of the Petitioners, as recorded by the learned Judge, on 27.6.1999 a further select list empanelling 16 candidates for appointment as Assistant Teachers was published. The list of 16 candidates consists of some of the candidates whose names were found in the first select list, referred to earlier and it also contains some new names but the names of the Petitioners were excluded. In this regard the learned Judge at para 3 of the judgment recorded as follows: 3. ...According to the Petitioners, on 27.6.1999, the new Advisory Board for Kokrajhar published a select list empanelling 16 persons for appointment as Assistant Teachers against the additional posts under Operation Black Board Scheme in the M.E. Schools. Though the list contained the names of some of the candidates selected earlier, there were fresh entrants as well. However, the names of the Petitioners were excluded. 7. The entire argument in the writ petition and the conclusions reached by the learned Judge hinge upon the fact that the "Advisory Board", which was supposed to make recommendation to the General Council on the basis of the select list prepared by the Interview Board, came to be dissolved on 2.5.1999 and a fresh Advisory Board came to be constituted on 25.6.1999. Such a fresh Advisory Board recommended as list of the candidates to be appointed as Asstt Teachers without conducting any fresh selection process and, therefore, the entire selection process is vitiated. At para 13 of the judgment under, appeal the learned Judge held as follows: 13. It is therefore obvious from the above revelations that though a selection process for appointment of Assistant Teachers in different M.E. Schools in the Kokrajhar District had been duly initiated in April, 1999, by the Advisory Board then in office and a select list had been drawn up containing the names of the Petitioners, the same was not approved. It is therefore obvious from the above revelations that though a selection process for appointment of Assistant Teachers in different M.E. Schools in the Kokrajhar District had been duly initiated in April, 1999, by the Advisory Board then in office and a select list had been drawn up containing the names of the Petitioners, the same was not approved. The earlier Board was dissolved and a new Board was inducted which without holding any fresh selection within a couple of days of its assumption of office drew up a fresh list whereupon the appointments inter alia of the private Respondents were made. Admittedly therefore the impugned list was prepared without holding any fresh selection. No decision is available in the records produced that the earlier selection was saved by the new Board and was acted upon in drawing up the impugned list. The records do not contain the list either. 8. The Bodoland Autonomous Council Act, 1993 does not contemplate any Advisory Board. On the other hand it is brought to our notice that by a notification dated 11.8.1998 of the Bodoland Autonomous Council a Sub-Divisional Elementary Advisory Board came to be constituted for a period of one year. Such a Board is empowered to constitute an Interview Board to conduct interview for selection of suitable candidates for appointment. We presume, in the absence of any specific issue or challenge to such a notification, that the Bodoland Autonomous Council constituted the said "Advisory Board" for appointment of an Interview Board. Obviously the Bodoland Autonomous Council delegated its power of creating an Interview Board to such a body called the "Advisory Board." From the tenor of the notification it appears that the only function of the Advisory Board is to constitute an Interview Board. It is not invested with any further function in the process of selection. Even according to the notification under Clause 3 the appointments are to be made by the Bodoland Autonomous Council. Therefore, once an Interview Board is constituted, in our view, the Advisory Board has become functus officio and without any further role in the selection process. 9. Admittedly the Interview Board was constituted and a selection process was undertaken and pursuant to the selection process appointment orders were issued in favour of the Appellants herein. The fact that there was a reconstitution of the Advisory Board, in our view, is inconsequential. 9. Admittedly the Interview Board was constituted and a selection process was undertaken and pursuant to the selection process appointment orders were issued in favour of the Appellants herein. The fact that there was a reconstitution of the Advisory Board, in our view, is inconsequential. The question is whether there is any irregularity in the process of recruitment undertaken either by the Interview Board or the approval of the list of the selected candidates by the Bodoland Autonomous Council. 10. The Bodoland Autonomous Council, a statutory body created under the 1993 Act which came to be superseded by virtue of a constitutional amendment in the year 2003. The successor constitutional body known as the Bodoland Territorial Council is represented before us by Mr. D. Das, learned Counsel. The learned Counsel made a clear statement that the records pertaining to the recruitment in dispute in this appeal are not available with the Bodoland Territorial Council, which claims to be a constitutional entity. 11. In the absence of any definite material from which we can infer that the appointments of the Appellants are vitiated by some illegality or irregularity there is a presumption in favour of the legality of all the official acts. Undisputedly the Appellants were appointed by authority of the State as it is evident from the appointment orders, referred to earlier. 12. The only ground on which the learned Judge interfered with the appointment of the Appellants is that the Advisory Board which constituted the Interview Board was replaced by a fresh Advisory Board and upon such fresh constitution of the Advisory Board no further selection process was undertaken. In our view there is no basis for such a conclusion in law. The Advisory Board, as we have already noticed, has no role in the selection process. It is a process confined to the Bodoland Territorial Council and the Interview Board. 13. In the circumstances we are of the opinion that the judgment under appeal cannot be sustained and is accordingly set aside. The appeal is allowed but without costs.