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2015 DIGILAW 917 (GAU)

Munindra Deka v. State of Assam

2015-07-27

T.VAIPHEI

body2015
JUDGMENT : Heard Mr. K.U. Ahmed, the learned counsel for the petitioner and Mr. P. Saikia, the learned Standing Counsel for Secondary Education Department. 2. In terms of the advertisement dated 26.10.2014, the petitioner, who has been rendering service in the post of Grade-IV after the retirement of his father on honorary basis, applied for the post of Grade-IV in Modartala Vidyapith High School. According to the petitioner, he, having passed Class-X examination, is eligible for the said post. The written examination as well as the oral interview was held on 07.11.2012 in the school premises where he took part. A total of 48 candidates were applied for the few posts of Grade-IV so advertised. Among the general category candidates, the petitioner secured 35.5 marks in the written test and 6.25 marks in the viva-voce test, which came to a total of 41.75 marks. In the merit list dated 27.12.2012, published by the Headmaster/Secretary of the School, the name of the petitioner found a place at Sl No.1 of the merit list. When he was not immediately appointed, he was constrained to file this writ petition for appropriate relief. It is contended by the petitioner that as a candidate, who secured first position in the recruitment test, and whose name appeared at Sl No.1 of the merit list, he is entitled to be appointed for the said post of Grade-IV. 3. Contesting the writ petition, the State respondents through the respondent No.4 (Inspector of Schools, Kamrup, Assam) filed their affidavit in opposition. The stands taken by the answering respondent is found mostly at paragraphs 5, 6 and 7 of the affidavit. The respondent authorities do not dispute the fact that the petitioner secured 41.75 marks out of the total marks of 60 and was selected for the Grade-IV post of Modartala Vidyapith High School, Kamrup, but the merit list could not be acted upon by them, since the then Headmaster had tempered with the marks of the candidates appearing in the interview. The answering respondent further stated that the then Headmaster, who is now expired, was directed to submit the answer script and the relevant documents to the office of the respondent No.4, but he refused to do so. The answering respondent further stated that the then Headmaster, who is now expired, was directed to submit the answer script and the relevant documents to the office of the respondent No.4, but he refused to do so. In the meantime, the validity period of approval of the Finance (SIU) got expired and, as such, the answering respondent is not in a position to appoint any candidate in terms of the said merit list. Moreover, according to the answering respondent, for appointment of Grade-IV in the school, the extension of SIU (Finance approval) from Government is necessary, which is not forthcoming. These are thus the positions taken by the respondent authorities in not appointing the petitioner against the post of Grade-IV so advertised. 4. The burden of proof that the marks of the petitioner in viva-voce test were tempered with by the then Headmaster of the school is on the respondent authorities. The allegation made against the then Headmaster is virtually allegations of fraud. Though the merit list was published by the Headmaster as early as 27.12.2012, apart from the self serving statements of the answering respondent that the then Headmaster was asked to submit the record etc, no concrete evidence is forthcoming to discharge the burden of proof lying upon them. The respondent authorities have the means as well as the power to retrieve any record available with the school, but they are unable to do so for reason which cannot be understood. It is thus quite reasonable to infer that the stands taken by them now is an afterthought and without any foundation. In other words, in the absence of any evidence to the contrary furnished by the respondent authorities, it can be safely presumed that the petitioner was duly selected for the post of Grade-IV in the concerned school. The respondent authorities by not appointing the petitioner to the post in question in terms of the select list dated 27.12.2012 has acted arbitrarily, which warrants the interference of this Court. No other defects in the merit list could be pointed out by the answering respondent. Under the circumstances, this is a fit case for issuing positive direction. 5. For what has been stated in the foregoing, this writ petition is allowed. No other defects in the merit list could be pointed out by the answering respondent. Under the circumstances, this is a fit case for issuing positive direction. 5. For what has been stated in the foregoing, this writ petition is allowed. The respondent authorities are, therefore, directed to appoint the petitioner to the post of Grade-IV of Modartala Vidyapith High School, subject to police and medical verifications, within a period of 05(five) weeks from the date of receipt of this judgment. No costs.