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2014 DIGILAW 462 (GAU)

Imdadur Rahman & Ors. v. State of Assam & Ors.

2014-04-25

A.K.GOSWAMI, A.M.SAPRE

body2014
A.K. Goswami J.:- 1. The intra-court appeal under rule 2(3) of Chapter V-A of the Gauhati High Court Rules is filed by the respondent Nos. 5 and 4, respectively, of W.R(C) No. 3417/2001 as appellant Nos. 1 and 2 against the impugned judgment and order dated 26.5.2003 passed by the learned Single Judge in W.P. (C) No. 3417/2001 and also the order dated 24.4.2008 passed in Review Petition No. 115/2006. 2. The aforesaid review petition was filed by the appellants along with one Amal Majumdar, who was arrayed as respondent No. 6 in WP(C) No. 3417/2001. 3. By an order dated 18.11.2013, the writ appeal was directed to be listed along with WP(C) No. 763/2013 and WP(C) No. 3904/2007. Accordingly, the said two writ petitions had been listed for hearing along with Writ Appeal No. 291/2008. We have found that the issue raised in WP(C) No. 3904/2007 is interlinked with the issue in the Writ Appeal No. 291/2008. However, as the issue raised in WP(C) No. 763/ 2013 is entirely different, we had delinked WP(C) No. 763/2013 and had ordered for its listing before the appropriate. Single Bench as per Roster. 4. Heard Mr. J. Ahmed, learned counsel for the appellants, Mr. P.J. Saikia, learned counsel appearing for the Respondents No. 5 and 6/writ petitioners in WP(C) No. 3417/2001 as also the writ petitioners in WP(C) No. 3904/2007 and Mr. P.N. Goswami, learned Standing Counsel, Education Department. We have also perused the material on record. 5. At the outset, it will be relevant to recite the factual background resulting in filing of WP(C) No. 3417/2001 and Review Petition No. 115/2006. Such narration of facts would facilitate easy understanding of cause of action, factual matrix and the relief sought for in WP(C) No. 3904/2007. 6. The primary facts projected in WP(C) No. 3417/2001 are that an advertisement was published by the Director of Secondary Education, Assam in the month of December, 1996 for filling up of about 1000 posts of Graduate Teachers in the provincialised High Schools/High Madrassas and about 200 posts of Subject Teachers in the Higher Secondary Schools in various districts of Assam. The petitioners had responded to the said advertisement and they were also called for interview and subsequently, select list was prepared Assembly Constituency-wise. The writ petitioners being successful, their names figured in the select list prepared for Lumding Assembly Constituency at SI. Nos. The petitioners had responded to the said advertisement and they were also called for interview and subsequently, select list was prepared Assembly Constituency-wise. The writ petitioners being successful, their names figured in the select list prepared for Lumding Assembly Constituency at SI. Nos. 7 and 11, respectively. Appointments were made from the said select list from SI. Nos. 1 to 6 in seriatim and thereafter, select list was abandoned and on 28.3.2001, appointments were offered to seven persons including the respondent Nos. 4 to 7 in WP(C) No. 3417/2001. While it was averred that the names of respondent Nos. 4 to 6 did not figure in the select list, the name of respondent No. 7 figured at SI. No. 10, i.e., below the petitioner No. 1, Accordingly, prayer was made in the writ petition to quash the appointment orders made in favour of respondent Nos. 4 to 7 in the writ petition and for a direction to appoint the petitioners. 7. Despite service of notice, the appellants did not appear before the writ court. After hearing the learned counsel for the writ petitioners and the learned Standing Counsel, Education Department, while not interfering with the appointment of the respondent No. 7, the learned Single Judge (as His Lordship then was) by the impugned judgment and order dated 26.5.2003, allowed the writ petition partly by setting aside the appointment orders dated 28.3.2001 in respect of respondent Nos. 4,5 and 6 of the writ petition. A direction was also issued to the authorities to consider the case of the two writ petitioners as per their merit position in the select list for appointment against the posts held by the respondent Nos. 4, 5 and 6. The learned Single Judge held that appointments to the posts covered under the advertisement in question are governed by the provisions of the Assam Secondary Education (Provincialised) Service Rules, 1982, for short, the Rules, and in terms of rule 7 of the Rules, the vacancies are to be indicated constituency-wise and on completion of the selection process, the select list is to be published by the Director of Secondary Education constituency-wise. 8. 8. In the review petition, while admitting that notices were served upon them, stand was taken by the review petitioners that no constituency-wise select list was prepared in Nagaon District, but a consolidated district-wise select list consisting of 255 names was prepared/where the names of the review petitioners appeared at SI. Nos. 148, 157 and 173 and the names of the writ petitioners did not appear in the said select list. The Department, while admitting preparation of district-wise select list consisting of 255 names, submitted that ultimately 297 appointments were made, though 71 posts were only allotted to Nagaon District, the District in which Lumding Assembly Constituency falls. The review petition was dismissed by order dated 24.4.2008 and the last two paragraphs of the said judgment read as follows: "The above facts by itself would have made the court feel disinclined to review its earlier order directing cancellation of the appointments of the review petitioners. However, the learned counsel for the respondent Nos. 5 and 6 [petitioners in WP(C) No. 3417/2001] have drawn the attention of the court to a connected matter, i.e., WP(C) No. 3904/2007, particularly the documents enclosed thereto to Annexure E and I thereto. The said documents read together leaves the Court satisfied that there is adequate room to still take the view that there was a constituency-wise select list wherein the names of the respondent Nos. 5 and 6 had appeared at SI. Nos. 7 and 11 and furthermore that while appointment was conferred to the persons placed at SI. Nos. 1 to 6, the other names in the select list were by-passed and appointments were given to the review petitioners whose names did not appear in the said select list. That apart, even if the appointments of the review petitioners are to be tested on the strength of their merit position in the select list dated 27.3.2001 consisting of 255 names, the manner of preparation of the select list and the number of posts allotted to Nagaon district (71) coupled with the placement of the review petitioners at SI. Nos. 148,157 and 173 of the said select list are adequate materials on which the Court is satisfied that the present is not a fit case for review/recall of the order dated 26.5.2003 passed in WP(C) No. 3417/2001. The review petition accordingly is dismissed. No costs." 9. Nos. 148,157 and 173 of the said select list are adequate materials on which the Court is satisfied that the present is not a fit case for review/recall of the order dated 26.5.2003 passed in WP(C) No. 3417/2001. The review petition accordingly is dismissed. No costs." 9. Pursuant to the order passed by this court on 26.5.2003 in WP(C) No. 3417/2001, service of respondent Nos. 4, 5 and 6 was, in the meantime, terminated by an order dated 19.8.2004 issued by the Secretary to the Government of Assam, Education Department. The claim of the writ petitioners was also rejected on the ground that notices had been issued to all the persons who were appointed, as, who were the genuine 71 candidates, could not be identified. 10. Inexplicably though, another order dated 12.1.2006 was passed by the Commissioner and Secretary to the Government of Assam, Education Department in compliance of the order dated 26.5.2003, passed in WP(C) No. 3417/2001 without noticing the earlier order of the Secretary to the Government of Assam, Education Department dated 19.08.2004 on the subject. By this order, claim of the writ petitioners in WP(C) No. 3417/2001 was rejected on the ground that by an order dated 3.12.2003, the Government had cancelled all select lists prepared and published prior to 1.4.2001. 11. Challenging the aforesaid two orders, i.e., order dated 19.8.2004 and order dated 12.1.2006, WP(C) No. 3904/2007 was filed with a prayer for a direction to the respondent authorities to appoint the petitioners in the posts of Assistant Teachers in any high school under the Inspector of Schools, Nagaon District Circle, Nagaon. 12. Mr. J. Ahmed, learned counsel for the writ appellants has submitted that though a statement was made before the Review Court by the Standing Counsel of the Education Department that show-cause notices were issued to all the appointees to explain why their appointments should not be cancelled and replies were also received from the incumbents, no further action is taken on the basis thereof and on the contrary, while allowing all such teachers to discharge their duties, steps are also taken to find out the possibility of regularization of such teachers, which is evident from the affidavit-in-opposition filed by the respondent No. 1 in the Writ Appeal on 18.11.2013. The learned counsel submits that it is apparent from the said affidavit that the appointees are receiving salary at a fixed pay of Rs. The learned counsel submits that it is apparent from the said affidavit that the appointees are receiving salary at a fixed pay of Rs. 2,500 per month. Accordingly, he submits that only the appellants along with another had been deprived of the benefit of appointment made pursuant to the said selection process and, therefore, there is no reason why the impugned orders should not be interfered with so as to put the appellants at par with the other appointees. 13. Mr. P.J. Saikia, learned counsel appearing for the respondent Nos. 5 and 6/writ petitioners in WP(C) No. 3417/2001 submits that merely because other teachers have been allowed to continue cannot be a ground to validate the appointment of the writ appellants and on the face of the merit position as proclaimed by them at SI. Nos. 148 and 157 in the purported select list, which has no sanctity, having regard to the fact that only 71 posts were earmarked for the District of Nagaon, no case is made out for interference with the impugned judgment and order dated 26.5.2003, passed in WP(C) No. 3417/2001 and the order dated 24.4.2008, passed in Review Petition No. 115/2006. 14. In support of WP(C) No. 3904/2007, Mr. Saikia submits that the grounds furnished for rejection of the case of the writ petitioners in the orders dated 19.8.2004 and 12.1.2006 are wholly misconceived and the same depict total non-application of mind. It is submitted by him that the petitioners in WP(C) No. 3904/2007 having been duly selected, and SI. No. 1 to 6 of the said list having being appointed, they are entitled to be appointed and accordingly, this court may issue appropriate directions to the respondent authorities to appoint them forthwith. 15. Mr. P.N. Goswami, learned Standing Counsel, Education Department, while submitting that no case is made out for interfering with the judgment and order dated 23.5.2003, passed in WP(C) No. 3417/2001 and the order dated 24.4.2008, passed in Review Petition No. 115/2006, tries to justify the orders dated 19.8.2004 and 12.1.2006 on the basis of the reasoning given in the said orders. However, he could not offer any explanation as to why two orders were required to be passed. 16. We arc inclined to agree with the submission of Mr. However, he could not offer any explanation as to why two orders were required to be passed. 16. We arc inclined to agree with the submission of Mr. P.J. Saikia that merely because others have been allowed to continue in service cannot be a ground to reinstate the writ appellants in service when independently they have not been able to assert and show as to how their appointments were valid. 17. Rule 7 provides the method of direct recruitment to the posts in question. Rule 7(1)(b) envisages preparation of select list constituency-wise of each Assam Legislative Assembly Constituency. Rule 7(1)(c) of the Rules provides that Selection Board shall finalize a list constituency-wise in order of merit and submit the list to the Director of Secondary Education, Assam for approval. Rule 7(1)(d) is very material for the purpose of this case and, therefore, Rule 7(1)(d) is quoted below in its entirety: "7(1)(d). The Director of Secondary Education, Assam shall authenticate and get the select list of constituencies published by affixing copies thereof in the office Notice Board of the Director of Secondary Education, Inspector of Schools and Deputy Inspector of Schools and in any other manner as the Government may deem fit as and when they are received from the District Level Selection Boards and the State Level Selection Board respectively. The select list con taming the results shall be a public document and shall be made available to benefit member of the public on application with such requisite fees as may be determined by the Government from time-to-time. The Inspector of School in case of High School and the Director of Secondary Education in case of Higher Secondary School shall appoint the selected candidates in order of merit only from the authenticated select list. Any appointment given to persons outside the select list shall be ab initio invalid except appointment given on compassionate ground by the Government in this regard: Provided that the Director may require the Inspector of Schools of the District to authenticate and get the select list published in the manner as specified above." 18. Perusal of rule 7(1)(d) of the Rules makes it abundantly clear that the Director of Secondary Education, Assam must authenticate and get the select list of constituencies published in the manner prescribed in the Rules. Perusal of rule 7(1)(d) of the Rules makes it abundantly clear that the Director of Secondary Education, Assam must authenticate and get the select list of constituencies published in the manner prescribed in the Rules. It is also provided that appointments are to be made only from the authenticated select list in the order of merit. The proviso to rule 7(1)(d), however, provides that the Director may require the Inspector of Schools of the district to authenticate and get the select list published in the manner prescribed in rule 7(1)(d). Before the writ court, the State respondents did not file any affidavit and in the judgment passed in the review petition, the court had to lament that the stand of the Department, as it had always been, was unclear and ambiguous. It was also noted that in spite of grant of several opportunities, the Departmental Secretary had not filed its affidavit in the matter and the learned Department counsel had addressed the court on the basis of instructions trickling down to him. It was in these circumstances, the court had observed on the basis of materials produced by the writ petitioners that there was adequate room to still take a view that there was a constituency-wise select list. 19. It is not the case of the writ petitioners in WP(C) No. 3417/2001 and WP(C) No. 3904/2007 that the select list on which they place reliance is an authenticated select list, duly approved by the Director of Secondary Education, Assam or by the Inspector of Schools. The select list enclosed by the writ petitioners shows that the select list was approved only by the Chairman of the District Level Selection Board. 20. We find that names of some of the candidates appearing at SI. Nos. 1 to 6 of the list which Mr. Saikia claims to be the constituency-wise select list, also finds place at SI. Nos. 103,105 and 107 of the list on which the appellants had placed reliance. There is no explanation as to how this could have happened. 20. We find that names of some of the candidates appearing at SI. Nos. 1 to 6 of the list which Mr. Saikia claims to be the constituency-wise select list, also finds place at SI. Nos. 103,105 and 107 of the list on which the appellants had placed reliance. There is no explanation as to how this could have happened. Even if a constituency-wise select list is prepared, in absence of authentication of the said list and also in view of the stand taken in the affidavit filed by the State respondents in the Writ Appeal that appointments were made not on the basis of the constituency-wise select list and that no such select list was available, we are of the considered opinion that, viewed in that perspective, the writ petitioners do not have any enforceable right for their appointment. 21. In view of the above, the reasons cited in the orders dated 19.8.2004 and 12.1.2006 for rejection of the case of the petitioners is of no consequences. 22. The argument put forward by Mr. Saikia in Writ Appeal No. 291/2008 and which we have accepted, is equally applicable in case of the claim made by the petitioners in WP(C) No. 3904/2007 for their appointment on the basis of the select list from which SI. Nos. 1 to 6 were appointed. No right flows from a select list which is not authenticated as required by the Rules and no mandamus can be issued for appointment on the basis of such a select list. 23. In view of the aforesaid discussions, we do not find any merit in the Writ Appeal as Well as in WP(C) No. 3904/2007. Accordingly, Writ Appeal No. 291/2008 and WP(C) No. 3904/2007 are dismissed. No cost.