Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 437 (GAU)

Md. Usuf Ali v. State of Assam

2016-05-19

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Suman Shyam, J. 1. Heard Mr. A.R. Borbhuiya, learned counsel appearing on behalf of the appellants. Also heard Ms. B. Goyal, learned Senior Government Advocate, Assam, appearing on behalf of the State respondents, Mr. S. Saikia, learned Standing Counsel, Secondary Education Department as well as Mr. A.R. Bhuyan, learned counsel representing the private respondents. 2. Both these appeals arise out of the common judgement and order dated 10/03/2011 passed in WP(C) No. 3740/2010 and WP(C) No. 4228/2010, whereby the learned Single Judge had dismissed the writ petitions filed by the appellants challenging the order dated 09/06/2010 issued by the Chief Secretary, Government of Assam. 3. The factual matrix of the case, in brief, is that the Government had earlier issued a communication dated 19/04/2008 according approval to the process initiated by the department of secondary education for filling up 7 (seven) posts of Principal and 30(thirty) posts of Superintendents in the Madrassas/Arabic colleges in Assam. In terms of the said communication, approval of the Finance Department was obtained and thereafter, an advertisement was issued on 30/11/2008 inviting candidature from the eligible candidates. Record reveals that a selection was conducted by the State Selection Board on 20/12/2008 and 22/12/2008, pursuant whereto, a select list was also published on 30/12/2008 notifying the names of the successful candidates. Thereafter, orders of appointments were issued in favour of the selected candidates by the Director of Madrassa Education, Assam on 31/12/2001, on the basis of which the appellants had joined their respective posts as Principals/Superintendents in Madrassa/Arabic Colleges. 4. The private respondents, who are the unsuccessful candidates, had challenged the legality and validity of the said selection process by filing WP(C) 113/2009, WP(C) 364/2009 and WP(C) 396/2009 before this court, inter-alia, on the grounds that the posts in question were required to be filled up by means of promotion and, therefore, the process initiated for filling up the aforementioned posts by direct recruitment was illegal. It was also contended that while preparing and / or operating the select list dated 30/12/2008, the respondents did not adhere to the prescribed norms requiring reservation for women, physically handicapped, SC/ST as a result of which the selection process stood vitiated. 5. It was also contended that while preparing and / or operating the select list dated 30/12/2008, the respondents did not adhere to the prescribed norms requiring reservation for women, physically handicapped, SC/ST as a result of which the selection process stood vitiated. 5. Taking note of the arguments made by and on behalf of both the parties, the learned Single Judge of this Court had disposed of all the aforementioned 3 (three) writ petitions by the common judgement and order dated 14/12/2009 with the following directions :- “39. Accordingly, all the writ petitions are disposed of directing the Chief Secretary of the State to decide the issue relating to validity or otherwise of the selection in the light of the discussions made above. In the decision making process, he will associate all the concerned departments and then pass a speaking order. Entire exercise shall be carried out as expeditiously as possible, preferably within two months from today. Till then, the interim order passed earlier shall continue.” 6. In terms of the order dated 14/12/2009 passed by the learned Single Judge, the Chief Secretary, Government of Assam, had apparently discussed the matter with all the concerned departments and thereafter submitted a report dated 09/06/2010 giving his opinion in the matter stating that the selection process initiated for filling up the posts of Principals/Superintendents in Madrassa /Arabic Colleges was invalid. The observations and findings contained in the order dated 09/06/2010 issued by the Chief Secretary, Government of Assam are quoted herein below for ready reference:- “Having discussed the matter with the concerned departments, it has emerged that the selection of the Principals and Superintendents suffer from the following infirmities – (a) The Selection Board has treated the posts to be direct recruitment posts and has carried out the process accordingly. The provincialisation Act does not specify that the posts are to be filled by direct recruitment. Though the Act is silent on the issue, in the absence of Rules, there should have been clear instructions from the Government to this effect. The Selection Board has acted contrary to Government approval accorded for filling up the posts by promotion. The methodology adopted by the Selection Board being without jurisdiction and without Government approval makes it bad in law. The Selection Board has acted contrary to Government approval accorded for filling up the posts by promotion. The methodology adopted by the Selection Board being without jurisdiction and without Government approval makes it bad in law. (b) Section 3 of the Provincialisation Act states that all employees of the Madrassas covered by the deficit scheme of grants-in-aid shall be deemed to have become the employees of the Government. Section 3 (a) further states that all rules including service rules and rules of conduct and discipline which are applicable to Government servants of the corresponding grade similarly placed shall be applicable to all employees of the Madrassa. All provisions of reservations applicable in Government are thus clearly applicable to the Madrassas unless exemption is granted under the relevant provisions of the statutes governing such reservations. No such exemption had been granted. In view of the non-application of the reservations to the selection process, the same is bad in law. Therefore, in all fairness it seems appropriate that the selection made by the authorities for the posts of Principals and Superintendents be decided as invalid and hence, it is decided accordingly. The appointment made on the basis of the aforesaid selection will also be invalid. The Education (Secondary) Department is directed to initiate action in the matter accordingly and also frame Rules.” 7. Being aggrieved by the order dated 09/06/2010, the appellants being the selected candidates, had approached this Court by filing WP(C) No. 3740/2010 and WP(C) No. 4228/2010 challenging the aforesaid order dated 09/06/2010 and the learned Single Judge had dismissed both the writ petitions by the common judgement and order dated 10/03/2011, which order is under challenge in the present appeals. 8. Mr. Borbhuiya, learned counsel appearing for the appellants submits that since there was no Rules framed by the department laying down as to the manner in which the posts of Principals/Superintendents in Madrassa/Arabic Colleges were to be filled up, hence, the observations and conclusions recorded by the Chief Secretary in the order dated 09/06/2010 were without any basis. 8. Mr. Borbhuiya, learned counsel appearing for the appellants submits that since there was no Rules framed by the department laying down as to the manner in which the posts of Principals/Superintendents in Madrassa/Arabic Colleges were to be filled up, hence, the observations and conclusions recorded by the Chief Secretary in the order dated 09/06/2010 were without any basis. By referring to the various provisions of the Assam Madrassa Education (Provincialisation) Act, 1995 (for short “the Act of 1995) the learned counsel submits that since the selection has been conducted by the Selection Board constituted under Section 5(3) of the Act of 1995 and the process was conducted in a fair and transparent manner, hence, there is no justification for declaring the selection process as illegal. He submits that the learned Single Judge had committed manifest illegality in failing to appreciate the aforesaid aspect of the matter while rendering the impugned judgement. The learned counsel for the appellants further submits that the respondents having participated in the selection process without raising any objection, and they having emerged as unsuccessful, such candidates cannot now be permitted to question the validity of the select list. In support of his aforesaid arguments, Mr. Borbhuiya has relied upon the two decisions of the Apex Court reported in AIR 1966 SC 1942 (B.N. Nagarajan and others Vs. State of Mysore and others) and (1995) 3 SCC 486 ( Madan Lal and others Vs. State of J & K and others). 9. Per contra, Ms. B. Goyal, learned counsel appearing for the State respondents submits that the findings recorded by the Chief Secretary in the order dated 9/6/2010 are based on cogent materials available on record and since the process of recruitment to the post of Principals/Superintendents in the High Madrassas/ Arabic Colleges is required to be confined only to the internal candidates having qualification and experience of 15 years and 10 years respectively, hence, it is axiomatic that the process is one of promotion and not direct recruitment. In such view of the matter, submits Ms. Goyal, the decision and conclusion recorded by the learned Single Judge does not call for interference in the facts and circumstances of the case. 10. Mr. In such view of the matter, submits Ms. Goyal, the decision and conclusion recorded by the learned Single Judge does not call for interference in the facts and circumstances of the case. 10. Mr. A.R. Bhuyan, learned counsel appearing for the private respondents have substantially adopted the submissions made by the learned Government Advocate and has further stated that due to completely anomalous selection process conducted by the authorities, his clients, who are senior to the appellants in service, were ignored and the appellants, who are junior in service, were given the promotion to the posts of Superintendents/ principals ahead of the private respondents. 11. We have given our anxious consideration to the rival submissions made by the learned counsels for the parties and have also examined the material available on record. 12. As has been noted hereinbefore, by the order dated 14/12/2009, the learned Single Judge had disposed of the 3 (three) writ petitions remanding the matter back to the Chief Secretary, Government of Assam, to pass a speaking order on the question of validity of the selection process. The order dated 14/12/2009 has not been challenged by either party as a result of which the same has attained finality in the eye of law. It was in compliance of the order dated 14/12/2009 that the Chief Secretary had passed the speaking order dated 09/06/2010 giving his findings and conclusions in the matter. On a perusal of the order dated 09/06/2010, we are left with no manner of doubt that the said order has been issued by the Chief Secretary in strict compliance of the directions contained in the order dated 14/12/2009. 13. As regards the conclusion recorded in the order dated 09/06/2010 that the posts of Superintendents/ Principals in the madrassas / Arabic colleges are promotional posts and that the norms regarding reservation of vacancies pertaining to women, Physically handicapped, ST/SC, which were required to be followed in the process has not been done so, the learned Single Judge has extensively dealt with each aspects of the matter and recorded categorical findings in the impugned judgement and order dated 10/03/2011 approving the conclusions drawn by the Chief Secretary. By the impugned order dated 10/03/2011, the learned Single Judge had dismissed by the writ petitions by making the following observations/ directions :- “16. By the impugned order dated 10/03/2011, the learned Single Judge had dismissed by the writ petitions by making the following observations/ directions :- “16. In consequence of the above declaration, the State is now required to make recruitment to the posts of Principal/Superintendent in the Arabic Colleges and Madrassas by initiating a fresh recruitment process. This can be done by framing appropriate Service Rules under the Madrassa Act or by specifying the appropriate norms for recruitment. Necessary exercise for fresh selection be completed expeditiously and preferably in 6 months time by 12.9.2011. The persons who are functioning in the posts of Superintendent/Principal must give way for the persons who are selected regularly in the fresh process ordered by the Court. In the interregnum, the functioning of the incumbents in the respective positions shall be maintained and they shall continue in service till regular appointment/superannuation-whichever is earlier. The respondents would ensure payment of due salaries including arrear salaries to the serving appointees.” 14. In terms of the leave granted by this Court, an additional affidavit was filed by the Under Secretary to the Government of Assam, Secondary Education Department, Dispur on 16/05/2016 issuing further clarifications as regards the mode of appointment of the Principals and Senior Superintendents in the Title Madrassas, Arabic Colleges of Assam. From the aforesaid affidavit, it can be seen that the Department has supported the conclusions recorded by the Chief Secretary in the order dated 09/06/2010 by stating that the post of Principals/Superintendents are required to be filled up by promotion. From a scrutiny of the materials on record, we are also of the opinion that the posts of Senior Superintendents/ Principals of Madrassas/ Arabic Colleges are promotional posts. Therefore, we do not find any error in the impugned judgment and order dated 10/03/2011 warranting interference by this court. As such, the Writ Appeals are held to be devoid of any merit and the same are hereby dismissed. 15. Before parting with the records it would be apposite to mention herein that the authorities have not yet frame any Rules laying down the manner in which these posts are to be filled up. In the order dated 9/6/2010 the Chief Secretary had issued a direction to the concerned department to frame the Rules. 15. Before parting with the records it would be apposite to mention herein that the authorities have not yet frame any Rules laying down the manner in which these posts are to be filled up. In the order dated 9/6/2010 the Chief Secretary had issued a direction to the concerned department to frame the Rules. In the impugned order dated 10/03/2011, the learned Single Judge had also observed that the Rules were required to be framed for the purpose of initiating the fresh selection process. It is sad that despite such direction/ observation made in this regard, the department has not notified the Rules till date. 16. On a query made by the court as to how much more time will be required for the department to frame and notify the Rules, Ms Goyal, learned State Counsel assures this court that the Rules would be framed and notified within the month of July, 2016 and immediately thereafter, the selection process for filling up the posts of Senior Superintendents/ principals in the Madrassas/ Arabic Colleges will be undertaken by the department as per the provisions of the Rules. Taking note of the above assurance given by the learned Government Counsel, we close these proceedings with the hope and expectation that the department would abide by the assurance given to this court and the State Government would initiate appropriate steps for notifying the Rules without any further delay and thereafter, conduct the selection process, as expeditiously as possible. No order as to costs.