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2012 DIGILAW 1288 (GAU)

Sumitra Saleo Alias Sahoo v. State of Assam

2012-11-22

ADARSH KUMAR GOEL, N.KOTISWAR SINGH

body2012
JUDGMENT N. Kotiswar Singh, J. 1. Writ Appeal No. 55 of 2012 arises out of the judgment and order dated 07.6.2007 passed by the learned Single Judge in W.P. (C) No. 3571/2001, W.P. (C) No. 5436/2001, W.P. (C) No. 5385/2001 and Cont. Cas (C) No. 463 of 2001. The said writ petitions were filed by the petitioners therein challenging the cancellation of their appointments vide orders dated 13.3.2001, claiming that they had been appointed as teachers on the recommendation of a duly constituted Selection Board vide orders dated 12.3.2001 and these cancellation orders dated 13.3.2001 were issued without jurisdiction and also in violation of the principles of natural justice. On the submission made by the parties that other writ appeals involving the same issue are pending before this Court, all these writ appeals namely, W.A. No. 55 of 2012, W.A. No. 57 of 2012, W.A. No. 78 of 2009, W.A. No. 79 of 2009, W.A. No. 80 of 2009, W.A. No. 81 of 2009, W.A. No. 10 of 2008, W.A. No. 11 of 2008, W.A. No. 12 of 2008, W.A. No. 82 of 2010, WA. No. 84 of 2010, W.A. No. 85 of 2010, W.A. No. 86 of 2010, W.A. No. 108 of 2010, W.A. No. 83 of 2010 and PIL No. 57 (Suo Motu) of 2007 (D/O) were clubbed together for hearing. Since the basic issues involved in these appeals are identical, for the sake of brevity, only some of the facts referred to in W.A. No. 55 of 2012 and W.P. (C) No. 5346 of 2010 may be stated. It is the case of the petitioners that on the basis of an advertisement published in Assamese daily "Dainik Janambhumi" dated 28.12.1996 issued by the Government of Assam for filling up of 7500 posts of Assistant Teachers in various Primary/Middle English/Middle English Madrassa Schools, the writ petitioners who belong to Dibrugarh District had applied for the same. According to the petitioners, the Sub-Divisional Level Advisory Board, Dibrugarh District, selected the petitioners for appointment after interviewing them vide their proceeding dated 23.02.2001 as Assistant Teachers vide orders dated 12.3.2001. 2. According to the petitioners, the Sub-Divisional Level Advisory Board, Dibrugarh District, selected the petitioners for appointment after interviewing them vide their proceeding dated 23.02.2001 as Assistant Teachers vide orders dated 12.3.2001. 2. It was the case of the petitioners that the petitioners were duly selected by following rules and procedures as laid down by the Government of Assam, by the Sub-Divisional Level Advisory Board, Dibrugarh District and they were appointed against 145 posts out of 4040 posts of Assistant Teachers created in 2000 under Operation Black Board (OBB). According to the petitioners, 145 posts had remained unfilled out of 4040 posts, which were filled up by the writ petitioners and others on the basis of recommendation of the Sub-Divisional Level Advisory Board, Dibrugarh, and to their utter shock and surprise, their services were cancelled by orders dated 13.3.2001 without giving any notice to the petitioners. Being aggrieved by the aforesaid act of the respondents in cancelling the appointment of the writ petitioners, they filed the writ petition being W.P. (C) 5346 of 2001. The said writ petition, W.P. (C) No. 5346/2001 was heard along with W.P. (C) No. 3571/2001, W.P. (C) No. 5385 of 2001 and Cont. Cas (C) No. 463 of 2001. In the said connected writ petition being W.P. (C) No. 3571/2001, an affidavit was filed by one Sri Bhaba Kanta Das, the then District Elementary Education Officer. By taking cognizance of the aforesaid affidavit, the learned Single Judge observed as follows:-- A reading of the aforesaid affidavit would go to show that against 60 sanctioned/allotted posts of OBB teachers in Dibrugarh District appointments to the extent of 257 numbers of teachers were made. To make available the excess posts against which appointments were made, resort was had to an order dated 26.2.2001 by which 145 posts of OBB teachers created in the year 1998 were retained upto 28.2.2001. The said order dated 26.2.2001 was construed to be an order of fresh creation of the aforesaid 145 posts. Even then, the number available i.e. 205 (145 + 60) was exceeded by making 357 appointments. In the affidavit, it has been further stated that no selection or interviews were held of any candidate; in fact, no call letters were issued. The said order dated 26.2.2001 was construed to be an order of fresh creation of the aforesaid 145 posts. Even then, the number available i.e. 205 (145 + 60) was exceeded by making 357 appointments. In the affidavit, it has been further stated that no selection or interviews were held of any candidate; in fact, no call letters were issued. The original and that translated copy of resolutions of the Selection Committee which have been enclosed as Annexures-4 and 5 to the writ petition has been explained in the affidavit filed to be a mere list of candidates compiled without holding any selection on 12.3.2001, Resolution No. 5 of the said meeting, it has been stated in the affidavit filed, was forcefully inserted in Guwahati on the next day i.e. 13.3.2001 by the Chairman of the Selection Board who also happened to be a Minister of the State Government. In the affidavit filed, it has been further stated that the deponent who was then the District Elementary Education Officer, Dibrugarh, was forced and pressurized to sign all the appointment orders which were accordingly signed by him under duress on 13.3.2001 by giving the date as 12.3.2001. This, it is stated happened in a particular hotel in Guwahati. In the affidavit filed, it has been further stated that once the duress and coercion was removed, on the same date, i.e. 13.3.2001 the cancellation of the appointments were made and leaving aside 51 valid appointment in Dibrugarh District all other appointments were cancelled. The petitioners, all them, come within the aforesaid category of illegal appointees who had procured their appointment orders in the aforesaid manner. In the affidavit filed, it has been further stated that the version put forward by the petitioners of having joined in the posts in which they were appointed on 13.3.2001, in the true and correct fact of the case, is false and the petitioners had not rendered any service whatsoever entitling them to any protection under the law. Another significant fact that must be taken note of is the actual number of persons appointed. Though the District Elementary Education Officer in his affidavit filed in W.P. (C) No. 3571/2001 has mentioned the same number as 257, in the writ petitions under consideration there are 296 petitioners. Another significant fact that must be taken note of is the actual number of persons appointed. Though the District Elementary Education Officer in his affidavit filed in W.P. (C) No. 3571/2001 has mentioned the same number as 257, in the writ petitions under consideration there are 296 petitioners. There are possibly more similar persons in other petitions which are not listed, a fact already observed in the earlier order of the Court dated 13.3.2007. Such additional number of appointees (beyond 257) can only explained on the basis of forged and fabricated letters of appointments, a fact stated by the District Elementary Education Officer in his affidavit filed in the proceeding registered and numbered as W.P. (C) No. 5385/2001. 3. In Writ Appeal No. 55 of 2012, the Director of Elementary Education Assam, respondent No. 3 also filed an affidavit on 13.9.2012 which may be referred to briefly for proper appreciation of the stand of the official respondents. In the said affidavit-in-opposition filed by the respondent No. 3, it has been stated that in the year 1996, an advertisement was issued by the Directorate of Elementary Education, Assam for filling up of 7500 posts of teachers in the provincialised Elementary Schools (both lower primary and upper primary) and all the said advertised posts were filled up during year 1998-99 and no vacant post remained unfilled. Subsequently, during the 9th Plan Period, the Education Department created 4040 number of posts of Assistant Teachers for provincialised Middle Schools (upper primary) under the Centrally Sponsored Scheme of Operation Black Board (commonly known as OBB 4040 Scheme). Out of the aforesaid 4040 posts under said scheme, 145 posts of Assistant Teachers for Middle schools were allotted to the Dibrugarh District which were duly filled up. Thereafter, in 1999, the Finance Department issued an office memorandum on 6.12.1999 imposing a ban on appointment in all departments including Education Department. Subsequently, an order was issued on 7.7.2000 directing that all the teachers appointed under the OBB 4040 Scheme should be adjusted against the existing vacancies in the terminal year of the 9th Plan as the posts under the said Central Sponsored Scheme would be abolished by the end of the said Plan period. It was also further directed that if there be any vacancy or if any vacancy arises, the same shall stand abolished. It was also further directed that if there be any vacancy or if any vacancy arises, the same shall stand abolished. Later, in the year 2001, the Government decided to lift the ban on appointment only in respect of the fixed pay teachers for appointment to LP and ME/MV/MEM posts created under Operation Black Board (OBB). However, it was decided that for the said recruitment, no new applications will be called for and only the candidates who had earlier applied would be called for interview. It was also mentioned that these appointments would be for a period upto 31.3.2002 and would stand terminated on 31.3.2002. In terms of the aforesaid decision to lift the ban for appointment under fixed pay, the Government created 7066 numbers of posts of Assistant Teachers of Elementary Schools (for both lower primary and upper primary) under OBB scheme which were to be abolished on 31.3.2002. Out of the aforesaid 7066 posts, 60 posts of Assistant Teachers were allotted to Dibrugarh District which carried a fixed pay of Rs.2000/- per month. Another 100 posts of Assistant Teachers which carried a fixed pay of Rs.1800/- were also allotted to Dibrugarh District for appointment in lower primary schools. All these posts were, however, to be terminated with effect from 31.3.2002. Out of the aforesaid 60 posts of Assistant Teachers of Middle schools for Dibrugarh District, 9 posts were re-alloted to Tinsukia District, thus leaving only 51 posts of fixed pay under OBB scheme of Middle School (Upper Primary). Similarly, out of 100 posts of Assistant Teachers of Lower Primary Schools, 13 posts were re-allotted to Tinsukia District, thus leaving only 87 posts of fixed pay. The District Level Elementary Teacher Selection Board of Dibrugarh District constituted on 23.02.2001 with the then State Minister of. Health and Family Welfare of Assam, Shri Bhaben Baruah, as its Chairman held its meeting on 12.3.2001 for selection for 51 candidates against 51 allotted posts of fixed pay Assistant Teachers for Middle School (Upper Primary) for Dibrugarh District. Similarly, the said Selection Board also selected 87 candidates for 87 allotted posts of fixed pay OBB Assistant Teachers of Lower Primary schools for Dibrugarh District. Similarly, the said Selection Board also selected 87 candidates for 87 allotted posts of fixed pay OBB Assistant Teachers of Lower Primary schools for Dibrugarh District. However, the said Selection Board inspite of the ban on appointment to regular vacancies, prepared a select list of 215 candidates for Lower Primary school in regular vacancies on anticipation that Government will lift the ban very soon (vide Resolution No. 4 of the said meeting). The affidavit further states that, apart from that the Chairman of the Selection Board on the night of 13.3.2001 unilaterally inserted the names of 252 candidates for appointment in upper primary schools of Dibrugarh District stating that these appointments were against 145 posts under OBB Scheme even though the said 145 posts had been already filled in the year 1999 as mentioned above. The affidavit further states that it was reported by the then District Elementary Education Officer of Dibrugarh District, Shri Bhaba Kanta Das that he was forced to sign the appointment letters of these 252 candidates giving 12.3.2001 as the date of appointment under duress and threat. It was further stated that after returning back to Dibrugarh, he cancelled all these appointment orders vide orders dated 133.2001 since there was no vacant posts under OBB 4040 Scheme as these had been already filled up in the year 1999. Therefore, in substance, the contention of the State respondents is that not only there was no vacancy existing under the OBB scheme at the relevant time in 2001 but also the aforesaid appointment letters dated 12.3.2001 were a product of malpractice as stated above. 4. This batch of writ appeals have been tagged along with PIL No. 57 of 2007 which was disposed of by this Court on 06.4.2011 considering the fact that on the basis of police investigation made in connection with the irregularities committed in the appointment of teachers under OBB scheme in Dibrugarh District, charge-sheets were filed against six persons including the then Chairman of the Selection Board, namely, Shri Bhaben Baruah. The said PIL was initiated suo-moto by this Court on the basis of an observation made by the learned Single Judge on 08.6.2007, which is reproduced hereinbelow:-- The aforesaid writ petitions were disposed of by order dated 7.6.2007. The said PIL was initiated suo-moto by this Court on the basis of an observation made by the learned Single Judge on 08.6.2007, which is reproduced hereinbelow:-- The aforesaid writ petitions were disposed of by order dated 7.6.2007. This further order has been necessitated on account of the facts stated in the earlier order of this Court dated 13.3.2007 and the report of the Superintendent of Police, Dibrugarh, which has been received today (8.6.2007). This order, therefore, would be understood to be in continuation of this Court's order dated 133.2007. The report submitted by the Superintendent of Police, Dibrugarh, speaks for itself and, prima facie, vindicates the facts already recorded in the order dated 13.3.2007. The said report of the Superintendent of Police, Dibrugarh would go to show that due interrogation of the officials of the office of the District Elementary Education Officer, Dibrugarh, names and particulars of which officials are mentioned in the said report, indicates gross anomalies in the appointment process with which the writ petitions disposed of yesterday are concerned. The report of the Superintendent of Police further goes to show that there has been gross abuse of the powers by functionaries of the State and that the appointments in question were made under coercion and duress. It is my considered view that in the above facts and circumstances the matter relating to the appointment in question should be investigated further by registration of a criminal proceeding against the wrong doers. It is also my considered view that such wrong doers who are employees of the State should be proceeded departmentally is the same has not been done. However, orders to the above effect and monitoring the progress of the investigation and departmental enquiry can only be done by means of a suo motu public interest litigation. I, therefore, direct the office to place this matter before the Hon'ble Chief Justice on the Administrative side for his Lordship's consideration as to whether in the light of the facts stated in the order dated 13.3.2007 of the Court and the report of the Superintendent of Police, Dibrugarh, a suo motu Public Interest Litigation should be initiated. The fact that the police investigation was conducted and charge-sheets were filed against the concerned persons shows prima facie existence of irregularities in the recruitment process relating to the appointments of the present writ petitioners/appellants. 5. The fact that the police investigation was conducted and charge-sheets were filed against the concerned persons shows prima facie existence of irregularities in the recruitment process relating to the appointments of the present writ petitioners/appellants. 5. From the above discussion, two issues emerges for consideration. Firstly, whether there were vacancies available under the OBB scheme when the petitioners were appointed on 12.3.2001 as claimed by the petitioners and secondly, whether such appointments of the petitioners were a result of malpractices as claimed by the respondents authorities. It is now well settled that for any valid appointment to be made, there must be a vacancy either regular or temporary No,, appointment can be made without there being a vacancy though the nature of the vacancy may vary. It may be apposite to refer to the decision of the Supreme Court in Ashwani Kumar v. State of Bihar, (1997) 2 SCC 1 , which was dealing with a case where appointments were made in excess of the sanctioned posts. The Supreme Court held that: 12.....But as both the learned Judges constituting the Division Bench, namely, K. Ramaswamy, J. and Hansaria, J. proceeded on the accepted position on record that Dr. Mallick unauthorisedly appointed 6000 employees on the sanctioned 2250 posts we will proceed on that basis. It becomes, therefore, clear that at least 3750 employees were drafted in the Scheme by Dr. Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that when these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses......... ......The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests. They were all persona non grata and were not employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary they were not binding on the State of Bihar.... It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary they were not binding on the State of Bihar.... In the present case, though the petitioners contend that there were 145 vacancies under the OBB scheme against which the petitioners were appointed, the State Respondents stated that there were no vacancies and the so called 145 vacancies had been already filled up in the year 1999. Therefore, if there were no vacancies as contended by the State Respondents when the petitioners were allegedly appointed on 12.3.2001, their appointment can not be obviously sustained. This issue whether there were vacancies at the relevant time has to be ascertained by the State authorities and not by this Court. Apart from the issue of existence or lack of vacancy for appointment, there is a more serious issue of the allegation of malpractices adopted in the procedure of selection relating to the appointments of the petitioners. The then District Elementary Education Officer of Dibrugarh District, Shri Bhaba Kanta Das had filed an affidavit narrating the manner in which the appointment orders were issued in respect of the 252 candidates at the instance of the Chairman of the Selection Board on 13.3.2001 in an illegal manner which assertion was reiterated by the authorities in their affidavit filed before this Court in these proceedings on 13.9.2012. The learned Single Judge, being prima facie satisfied with the seriousness of the allegations about the illegal appointment of the 252 posts, had passed the order dated 8.6.2007 in W.P. (C) No. 3571/2001, W.P. (C) No. 5346/2001, W.P. (C) No. 5385/2001 and the Cont. Cas (C) No. 463 of 2001, which ultimately led to the institution of PIL No. 57 of 2007 suo moto by this Court. The investigation made so far by the police resulting in the filing of charge-sheets against six persons including the then Chairman of the Selection Board clearly establishes prima facie case of irregularity. Cas (C) No. 463 of 2001, which ultimately led to the institution of PIL No. 57 of 2007 suo moto by this Court. The investigation made so far by the police resulting in the filing of charge-sheets against six persons including the then Chairman of the Selection Board clearly establishes prima facie case of irregularity. The learned Single Judge, after hearing the learned counsel appearing for the parties and on perusal of the relevant records, held as follows:-- A consideration of the cases pleaded by the petitioners and what has been stated by the District Elementary Education Officer, Dibrugarh, in the affidavits filed, as noticed above, give rise to two conflicting versions relating to the appointments in question. While the petitioners assert such appointments to be legal and justified in law, the appointing authority contends to the contrary. The Court exercising jurisdiction under Article 226 of the Constitution will not be in a position to decide the correctness of either of the versions. While of the aforesaid two versions is correct; what are the facts and circumstances surrounding the appointments of the petitioners are questions that will require a detailed consideration of several facts and particularly the records. It is not known to the Court whether any enquiry in the matter was held by the Department, though, as noted in the earlier order of this Court, the Department had repeatedly represented about some enquiry being made without, however, informing the Court of the outcome of such enquiry/enquiries. It is precisely because of this reason that the Court by its order dated 13.3.2007 had directed a police investigation into the matter. The progress of such investigation and the results thereof will definitely be monitored by the Court but not in the present proceedings. In so far as the present cases are concerned because of the highly disputed nature of the projections and counter-projections made by the contesting parties, the Court is of the view that the present will not be a fit cases for effective adjudication under Article 226 of the Constitution. No relief, therefore, can be afforded to the petitioners. All the writ petitions, therefore, are dismissed, however, without imposing any cost. No relief, therefore, can be afforded to the petitioners. All the writ petitions, therefore, are dismissed, however, without imposing any cost. Public employments whose expenses are met from the public exchequer must not only conform to the recruitment rules or the rules holding the field but also to the mandate of Articles 14 and 16 of the Constitution which abhor any element of malpractice or fraud. The Courts can not countenance any serious allegations of malpractice or fraud practiced during the recruitment process, which are anathema to the spirit of Articles 14 and 16 of the Constitution which deprive fair and equal opportunity to the eligible and meritorious candidates. In view of the above disputed facts relating to existence of vacancies and serious allegations of malpractice said to have been committed by the authorities in the matter of appointment of 252 candidates, this Court is of the view that the direction issued by the learned Single Judge on 07.6.2007 does not warrant any interference. Accordingly, these writ appeals are dismissed. Appeal dismissed.