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2011 DIGILAW 666 (GAU)

Ramiz Ahmad Barbhuya v. State of Assam

2011-08-09

HRISHIKESH ROY, MADAN B.LOKUR

body2011
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. B.C. Das, learned senior counsel appearing for the appellant. The Education Department and its officials are represented by its standing counsel, Mr. A. Deka. The appellant claims that he participated in a process of selection for appointment to the posts of teacher in Middle English (M.E.) schools, in pursuant to the advertisement dated 21.6.1986 inviting applications for both Primary and M.E. School vacancies. But when appointments were found to be made in the M.E. schools without publication of any select list, a writ petition being Civil Rule No. 2004/1989 was filed by the petitioner, challenging the illegal appointments. By the judgment dated 5.1.1994, the case was disposed of inter alia, with the following direction: (i) The respondents No. 1 to 4 shall not appoint any person from outside the panel for the posts of teacher of ME and MV schools and at the same time the respondents shall consider the appointment of the petitioners if their names are included in the panel subject to availability of vacancies. 2. In pursuant to the above directions of 5.1.1994 in Civil Rule No. 2004/1989, by order dated 9.9.1994, the appellant was appointed as an Assistant Teacher in Baghar M.E. School in Cachar district. But when the appellant found that irregularly appointed persons were being regularized/adjusted for facilitating their salary payments but no steps were taken to pay the salary to the appellant, he filed second case i.e. the Civil Revision No. 5325/1995. On the allegations made in the case, an enquiry was ordered on 25.6.1996 and the Court directed that the case be posted for final hearing, with the enquiry report. But eventually the case was disposed of even without an enquiry report. The Court in its final order of 20.6.1997 directed that the enquiry ordered in the case on 25.6.1996, be completed within a month and then the respondents will make arrangement to pay the salary of the petitioner. 3.1. However, the appellant did not get any relief in pursuant to the direction given in his second writ petition (Civil Rule No. 5325/1995). Instead, he found that the respondents were adjusting/regularizing services of number of undeserving appointees. Seeing the illegal activities of the official respondents, the appellant filed the 3rd writ petition being W.P. (C) No. 1140/2004 seeking a direction for regularization of his own service and for release of the pending salary. Instead, he found that the respondents were adjusting/regularizing services of number of undeserving appointees. Seeing the illegal activities of the official respondents, the appellant filed the 3rd writ petition being W.P. (C) No. 1140/2004 seeking a direction for regularization of his own service and for release of the pending salary. He also sought an investigation by the CBI on the illegal regularization/adjustments orders given by the authorities in the posts of teachers in M.E. schools. The Court by its order dated 30.3.2004 directed an enquiry by the Government, into the allegations made in W.P. (C) No. 1140/2004 and unlike in the 2nd Writ Petition, the enquiry report was given to the Court. 3.2. In W.P. (C) No. 1140/2004 the official respondents took the stand that the appellant and 24 other persons were appointed against non-existent posts and no approval was taken from the State Level Empowered Committee (SLEC) for such appointment. From the enquiry report, the learned Single Judge found that, in pursuant to the advertisement dated 21.6.1986, while select list for primary schools teachers was published on 12.10.1987, no select list was ever published for the advertised posts of M.E. school teachers. The Court also found that although the petitioner was not selected, the appointment order was issued in his favour on 9.9.2004, because of some understanding between, the appellant and the Deputy Inspector of Schools, Cachar. Considering the enquiry finding that the select list of the M.E. school teachers was never published and the appointment was not based on any valid select list, the Court declared that no mandamus can be issued to regularize the service of the appellant. 3.3. Since, the appellant's service was terminated in the meantime, in pursuant to the enquiry finding, the Court also examined the legality of the termination order. But after recording that the appellant secured his appointment through forgery and manipulation, the Court declined to give any relief to the appellant. The resultant dismissal of the case has led to the present appeal. 4. Before us the appellant once again argues that he was appointed in pursuant to the direction given on 5.1.1994 in Civil Rule No. 2004/1989. But a perusal of the direction given in that case shows that appointment of the appellant was to be considered only if, his name was included in the select list. 4. Before us the appellant once again argues that he was appointed in pursuant to the direction given on 5.1.1994 in Civil Rule No. 2004/1989. But a perusal of the direction given in that case shows that appointment of the appellant was to be considered only if, his name was included in the select list. But we find that the select list for M.E. school vacancies was never published in pursuant to the advertisement dated 21.6.1986 and the appellant was, undeservedly appointed, on the basis of some secret understanding between the appointee and the DEEO, Cachar. The Court found that appointment to the appellant was given without selection and de-hors the recruitment Rules. In fact, forgery and manipulation was noticed in the documents produced in the writ proceeding and the appellant could not satisfactorily explain to the Court, on the discrepancies in the signatures in the documents produced by him, before the learned single Judge. In this case, it is seen that the appellant is a beneficiary of an illegal process and was appointed as a M.E. School teacher without selection. That apart, the learned single Judge found that he resorted to forgery of documents to justify his appointment. These are the fundamental reasons, why the Court saw no ground to interfere with the termination order dated 28.11.2006. Having examined the reasons given in the impugned order and seeing that the service of the appellant was terminated for just cause, we see no reason to disturb the impugned order passed by the learned single Judge in W.P. (C) No. 1140/2004. Consequently, this writ appeal is hereby dismissed.