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2014 DIGILAW 768 (GAU)

Ripa Sarma v. State of Assam

2014-08-05

BIPLAB KUMAR SHARMA

body2014
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. K.P. Sarma, learned Sr. Counsel, assisted by Mr. H. Das, and Mr. A.J. Atia, learned counsel, representing the petitioners. I have also heard Mr. D. Saikia, learned Additional Advocate General, Assam along with Mr. A. Deka, learned Standing Counsel, Education Department. Also heard Mr. H. Sarma, learned counsel, representing the private respondents in WP(C) No. 1059/2008. I have also considered the entire materials on record. The matter pertains to selection and appointment of teachers in ME/MV/ME Madrassa and LP Schools in the district of Morigaon. It is submitted that the posts involved can be categorized into 2(two) categories, namely, LP School teachers and Upper Primary School teachers. The Upper Primary School posts involve ME/MV/ME Madrassa. 2. There is chequered history of the litigation pertaining to the particular advertisement that was issued about 18(eighteen) years back in 1996. Although the writ petitions, more or less structured on the same set of facts raising the common issue, requiring them to be heard analogously, brief facts involved therein are indicated below:- 3. WP(C) No. 1059/2008 The challenge in this writ petition is the select list dated 7th March, 2008 pertaining to LP School teachers. Alongwith the challenge to the said list, the petitioners have also prayed for implementation of the list dated 23rd March, 2001, which they project to be the actual select list. An advertisement was issued in 1996 for filling up of the L.P. and U.P. teachers posts throughout the State of Assam. However, in the instant proceeding, we are concerned with only Morigaon district Referring to the purported select list dated 23rd March, 2001, the petitioners have asserted that the said select list is the valid one and thus required to be implemented in terms of the orders of this Court, which shall be referred to a little later. 4. So far as the select list dated 7th March, 2008 is concerned containing the names of 35(thirty-five) candidates, it is the stand of the petitioners that the said select list is the product of illegality and could not have been prepared by the Deputy Inspector of Schools, Morigaon, being not authorized to do so and also being opposed to the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977. 5. 5. WP(C) No. 1803/2008 In this writ petition also the challenge is to the select list dated 7th March, 2008 with the further prayer to implement the select list dated 25th December, 1999. Thus unlike the first writ petition, in this writ petition it is the stand of the petitioners that there is a valid select list of 1999 and to be precise dated 25th December, 1999. 6. WP(C) No. 1107/2008 WP(C) No. 1108/2008 7. In these two writ petitions also the challenge is to the aforementioned select list dated 5th March, 2008. 8. WP(C) No. 5923/2008 The challenge in this writ petition is the advertisement dated 22nd November, 2012, by which the Director of Elementary Education, Assam invited applications for filling up more than 663 posts for L.P. and U.P. Schools teachers in the Morigaon District. The writ petition was filed with the plea that if the posts are filled up, the same will defeat the right of the petitioners from being appointed pursuant to the earlier selection conducted in reference to the 1996 advertisement. As in the other writ petitions, in this writ petition also it is the case of the petitioners that the earlier select list contained 334 names and unless and until they are appointed and the select list is exhausted in terms of the orders of this Court, the respondents cannot proceed with the impugned advertisement. 9. As noted above, the case has a chequered history. A batch of writ petitions, first one being WP(C) No. 739/2002 and the second one being WP(C) No. 8499/2004 (Ripa Sarma & Ors. Vs. State of Assam & Ors.) had been filed seeking implementation of the select list that was produced by the petitioners. According to the petitioners, the select list was published pursuant to a selection conducted in reference to the advertisement that was issued in 1996 for filling up of the posts of Lower Primary/Upper Primary School teachers. Dealing with the said select list and also the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977, the writ petitions were dismissed holding that the select list was not a valid select list. Another issue raised in the writ petition was in respect of particular notification dated 3.12.2003, by which, all the select lists published prior to 1.4.2001 had been rendered infructuous. It was held that the said issue was only academic. Another issue raised in the writ petition was in respect of particular notification dated 3.12.2003, by which, all the select lists published prior to 1.4.2001 had been rendered infructuous. It was held that the said issue was only academic. At the same time, it was also observed that if the Government had taken a policy decision not to implement the select list prepared prior to 1.4.2001, no fault could be attributed towards issuance of the said notification. 10. Being aggrieved by the aforesaid judgment and order, the petitioners preferred writ appeal being W.A. No. 279/2007 (Ripa Sarma & Ors. Vs. State of Assam & Ors.). The writ appeal was disposed of by order dated 20.11.2007 mainly dealing with the notification dated 3.12.2003, by which, all the select lists published prior to 1.4.2001 had been rendered infructuous. It was held that singling out the selection process made in the district of Morigaon held pursuant to the advertisement dated 27.12.1996 was illegal. It was further held that the State was bound to publish the select list of the selected candidates and to appoint such and those who are found successful in the selection process in those vacancies which were available to be filled up pursuant to the notification dated 27.12.1996 in the district of Morigaon. 11. Pursuant to the above direction, the respondents in the Education Department published the select list dated 7.3.2008 against 35 vacant posts of LP School teachers. As regards Upper Primary School teachers, it is the plea of the respondents that the selection records being not available, it is not possible to publish any select list against 10 vacancies found available against said category. 12. Referring to the aforesaid judgment of the Division Bench, it is the case of the petitioner that the State respondents in the Education Department are bound to publish the select list for Upper Primary School teachers also. It is their further case that the respondents have illegally published the select list containing only 35 names. According to them, there are about 334 vacancies and thus, the respondents cannot just confine the selection only in respect of 35 vacancies. As regards the plea of non-availability of relevant selection records, it is the stand of the petitioners that such a plea is untenable in view of the aforesaid direction of this Court. According to them, there are about 334 vacancies and thus, the respondents cannot just confine the selection only in respect of 35 vacancies. As regards the plea of non-availability of relevant selection records, it is the stand of the petitioners that such a plea is untenable in view of the aforesaid direction of this Court. Referring to the provisions of the aforesaid Rules of 1977, learned counsel for the petitioners have submitted that the DI of schools, who has published the select list is not the authority to do so and accordingly the select list containing the names of 335 candidates is not sustainable in law. 13. From the materials on record, it appears that pursuant to the aforesaid Division Bench judgment dated 20.11.2007 passed in W.A. No. 279/2007, when process was initiated towards implementation of the direction contained in the said judgment, certain difficulties were faced by the departmental authority and accordingly a review petition being Rev. Pet. No. 8/2010 was filed. However, the said review petition was dismissed vide order dated 26.2.2010. In the meantime, a contempt petition being Cont. Case (C) No. 43/2008 was also filed and the same was disposed of by order dated 11.12.2009 holding that the alleged contemners are not guilty of willful and deliberate violation of the direction contained in the aforesaid Division Bench judgment. However, it was held that the Division Bench judgment would continue to hold the field and that the respondents would be entitled to seek appropriate clarification in respect of the said direction. It was pursuant to the said liberty, Rev. Pet. No. 8/2010 was filed. However, the same was dismissed vide order dated 26.2.2010. 14. Thereafter the State respondents had gone on appeal before the Apex Court by filing SLP (C) No. 2671/2011, but the same was also dismissed on the ground of original appellate order being not under challenge. 15. Referring to the aforesaid orders of this Court, it is the stand of the petitioners that the State respondents are duty bound to publish the select list in terms of the direction contained in the Division Bench order. 15. Referring to the aforesaid orders of this Court, it is the stand of the petitioners that the State respondents are duty bound to publish the select list in terms of the direction contained in the Division Bench order. As noted above, it is the plea of the petitioners that the select list that has been published containing the names of only 35 candidates is not a valid select list having been prepared contrary to the provisions of the rules and also the aforesaid direction of the Division Bench. According to the petitioners, there were 334 vacancies and thus the respondents were required to publish the select list containing the names of atleast 334 candidates. As noted above, their plea in respect of the selection pertaining to Upper Primary School teachers is that in view of the aforesaid direction of the Division Bench, there is no escape from the liability of the State respondents to publish the select list and cannot take the plea that the selection records are not available. 16. In WP(C) No. 1059/2008, apart from the prayer to set aside the impugned select list dated 7.3.2008, there is also prayer to direct the respondents to implement the purported select list dated 23.3.2001 containing the names of 334 candidates. The second prayer made in the writ petition cannot be granted in view of the aforesaid direction of this Court in W.A. No. 279/2007, by which, direction was issued to publish the select list. As regards the validity or otherwise of the select list dated 7.3.2008 that has been published by the official respondents pursuant to the direction contained in W.A. No. 279/2007, same will be dealt with subsequently. 17. In WP(C) No. 1803/2008, apart from the challenge to the impugned select list dated 7.3.2008 and as noted above, there is also a prayer for implementation of the purported select list dated 25.12.1999. Thus, the petitioners themselves are not sure as to whether there is any valid select list. As noted above, it is the case of the petitioners in WP(C) No. 1059/2008 that there is a select list of 23.3.2001, but on the other hand in the instant case, the petitioners have referred to the purported select list dated 25.12.1999. Thus there is inherent contradictions in the own stand of the petitioners. 18. As noted above, it is the case of the petitioners in WP(C) No. 1059/2008 that there is a select list of 23.3.2001, but on the other hand in the instant case, the petitioners have referred to the purported select list dated 25.12.1999. Thus there is inherent contradictions in the own stand of the petitioners. 18. As noted above, in WP(C) No. 1107/2008 and WP(C) No. 1108/2008 also the challenge is to the select list dated 7.3.2008 that was published pursuant to the aforesaid direction in W.A. No. 279/2007. As noted above, in WP(C) No. 5928/2012, the prayer of the petitioners is to set aside and quash the advertisement dated 22.11.2012, by which, the candidatures have been invited for filling up of posts of teachers in LP and Upper Primary Schools in the district of Morigaon totaling the number of vacancies advertised as 663. According to the petitioners without first implementing the aforesaid judgment in W.A. No. 279/2007, the respondents are precluded from going ahead with further selection. 19. As per the direction of the Division Bench referred to above, the respondents were required to publish the select list of selected candidates. So far as the LP posts are concerned, they have published the select list containing the names of 35 candidates. As regards the Upper Primary School teachers selection, it is their plea that the selection records being not available, they are not in a position to publish the select list. So far as the LP School teachers select list is concerned, it is the plea of the petitioners that in fact there are good number of vacancies (atleast 334) obliging the respondents to publish the select list for 334 vacancies. In this connection, the petitioners have referred to the aforesaid purported select list of 1999 and 2001. The said select list cannot be directed to be operated in view of the clear cut mandate of the Division Bench judgment in the aforesaid W.A. No. 279/2007, by which, direction was issued to the State respondents to publish the select list. 20. Merely because the purported select lists, on which, the petitioners have placed reliance contained the names of 334 candidates, it cannot be said that in fact there are 334 vacancies. 20. Merely because the purported select lists, on which, the petitioners have placed reliance contained the names of 334 candidates, it cannot be said that in fact there are 334 vacancies. The specific case of the State respondents is that as of 1996, when the advertisement was issued, there were 35 vacancies for LP School and 10 for Upper Primary Schools in the district of Morigaon. In absence of anything to show that the said calculation made by the State respondents is incorrect, no presumption can be drawn that in fact, vacancies were higher than that of the projection made by the respondents. It will have to be presumed that the respondents' action in the matter is correct in absence of contradiction shown by the petitioners. 21. Referring to the aforesaid vacancy position, the State respondents in their application registered and numbered as Misc. Case No. 2120/2013 filed in WP(C) No. 5938/2012 have annexed the documents indicating the vacancy position. On the other hand, the petitioners in their reply affidavit have referred to the documents (Annexure-H) purportedly prepared by the DEEO in-charge, Morigaon showing the vacancy position of Upper Primary School teachers. As per the said statement, there were 82 vacancies in the Upper Primary Schools. However, as to on what basis such a statement was prepared is not discernible. There is no forwarding letter and/or covering letter so as to authenticate the vacancy position. It is simply a document purportedly signed by the in-charge DEEO on 26.4.1998. Moreover, when the selection records are not available, the vacancy position reflected by the petitioners is also immaterial. 22. The whole basis of the claim of the petitioners that for LP School teachers there are 334 vacancies is the purported select list prepared in 1999 and 2001. The said select list are of no consequence in view of the findings recorded in the earlier judgments of this Court including the direction of the Division Bench in W.A. No. 279/2007, in terms of which, the respondents are required to publish a fresh select list irrespective of the notification dated 3.12.2003, by which the select list prepared prior to 1.4.2001 had been rendered infructuous. There being a clear cut direction to publish the select list on the basis of the available records, the petitioners cannot harp upon the purported select lists of prior in point of time than the judgment of the Division Bench so as to claim that there were 334 vacancies obliging the State respondents in the Education department to publish the select list containing the names of 334 candidates. 23. As regards publication of the select list for Upper Primary Teachers, it is the specific case of the respondents that no records of selection are available enabling them to publish the select list. In absence of any available materials towards publication of the select list, this Court exercising writ jurisdiction cannot issue any direction to the State respondents to publish the select list. It is true that as per the Division Bench direction of this Court referred to above, the State respondents are required to publish the select list. Such direction was issued in reference to the aforesaid notification dated 3.12.2003, by which, all the select lists published prior to 1.4.2001 had been rendered infructuous. The Court was of the view that the selection having been held, the authority was duty bound to publish the select list. The direction for publication of the select list will have to be understood in that context. When it is shown that the selection records are not available so as to publish the select list pertaining to 10 vacant posts of Upper Primary teachers, this Court cannot be oblivious of the said situation, more particularly when nothing could be shown by the petitioners that such plea on the part of the respondents is not based on record. If the records of selection are not available, the respondents are handicapped from publishing the select list. There is also no possibility to reconstructing the selection records. It is in such circumstances, the respondents have now again issued the impugned advertisement taking into account the subsequent vacancies also. 24. At this stage, the learned counsel, representing the private respondents submits that the petitioners main grievance is in respect of LP School teacher select list and not Upper Primary School teachers select list, which in any case, is not possible to be published for want of relevant records. For all the aforesaid reasons, I do not find any merit in the writ petitions and accordingly they are dismissed. For all the aforesaid reasons, I do not find any merit in the writ petitions and accordingly they are dismissed. Interim order operating in this proceedings stands vacated. There shall be no order as to costs.