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2016 DIGILAW 541 (GAU)

Husne Mobaraque v. State of Assam

2016-06-10

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER : Arup Kumar Goswami, J. Heard Mr. K.R. Patgiri, learned counsel appearing for the petitioner in WP(C) No.2555/2016 and Mr. U.K. Nair, learned counsel appearing for the petitioner in WP(C) No.1887/2016. Also heard Mr. B.J. Talukdar, learned State counsel and Mr. P. Saikia, learned standing counsel, Secondary Education Department. 2. WP(C) No.1887/2016 was filed praying for setting aside and quashing the order dated 24.02.2016 passed by the Commissioner & Secretary to the Government of Assam, Education Department and for a writ of mandamus directing the respondent authorities to complete the selection process on the basis of written test held on 13.01.2016 in various schools of Barpeta District for recruitment to the posts of Lower Division Assistant (LDA). In WP(C) No.2555/2016, the petitioners pray for completion of the process of selection and appointment of LDA (Junior Assistant) of Shawrachara H.S. School as per advertisement dated 13.12.2015. 3. WP(C) No.2555/2016 was filed on 19.04.2016. Before filing of the writ petition, order dated 24.02.2016 was passed by the Commissioner & Secretary to the Government of Assam, Education Department, cancelling the selection process initiated vide advertisement dated 13.12.2015, which is a subject matter of challenge in WP(C) No.1887/2016. Stricto sensu, in absence of any challenge to the order dated 24.02.2016, this writ petition, numbered as WP(C) No.2555/2016, otherwise does not call for any adjudication but since the order dated 24.02.2016 is assailed in the other writ petition, both these cases are taken up for consideration, because in case the Court records a finding that the order dated 24.02.2016 is bad in law, then consequential direction in WP(C) No.2555/2016 may be called for. 4. The order dated 24.02.2016 reads as follows:- “Order Perused the report of Deputy Commissioner, Barpeta communicated vide his letter No.CAE.1/2016/47 dated 4-2-16 regarding anomalies and alleged malpractices in the written examination held for appointment to the post of Junior Assistant under Secondary Education Department at Barpeta. He has also recommended that a written examination should be conducted in Barpeta District. The Government of Assam has accepted the recommendation of the Deputy Commissioner, Barpeta and it is decided that reexamination shall be done in all the Schools where vacancy of Junior Assistant is exist under the strict supervision of Deputy Commissioner, Barpeta.” 5. Mr. He has also recommended that a written examination should be conducted in Barpeta District. The Government of Assam has accepted the recommendation of the Deputy Commissioner, Barpeta and it is decided that reexamination shall be done in all the Schools where vacancy of Junior Assistant is exist under the strict supervision of Deputy Commissioner, Barpeta.” 5. Mr. Nair, learned counsel appearing for the petitioners in WP(C) No.1887/2016 has submitted that the documents pertaining to selection process as well as cancellation thereof had been obtained by filing an application under the Right to Information Act, 2005. He has placed the same before the Court for perusal. The argument of Mr. Nair is that if some anomalies had taken place in respect of certain schools, there could not have been any occasion for the authorities to have cancelled the entire selection process in respect of 54 schools and it is always practicable and feasible to find out the selection process, which is vitiated and interdict the same and at the same time, allow the selection process where there is no anomaly to continue to its logical end. He has submitted that while finding fault with the selection process adopted in the schools, the report of the Deputy Commissioner is conspicuously silent as to how the said anomalies had taken place as the Deputy Commissioner of the District concerned had also a role to play in view of the Office Memorandum dated 29.12.2015. If the answer keys had leaked out, steps ought to have been taken by the Deputy Commissioner to identify in what manner it could have leaked out but no attention was paid to that aspect of the matter. It is also contended by him that without apportioning or fixing responsibility, the Enquiry Committee constituted by the Deputy Commissioner could not have advised cancellation of the selection process. 6. Mr. B.J. Talukdar, learned State counsel and Mr. P. Saikia, learned standing counsel, Secondary Education Department, appearing for the respondents, on the other hand, submit that based on the report, a conscious decision was taken to hold re-examination for the post of Junior Assistant under the strict supervision of the Deputy Commissioner, Barpeta. 6. Mr. B.J. Talukdar, learned State counsel and Mr. P. Saikia, learned standing counsel, Secondary Education Department, appearing for the respondents, on the other hand, submit that based on the report, a conscious decision was taken to hold re-examination for the post of Junior Assistant under the strict supervision of the Deputy Commissioner, Barpeta. In view of the anomalies during the selection process, such a decision was taken and, therefore, in exercise of the powers under Article 226 of the Constitution of India, this Court may not exercise its discretionary jurisdiction to interfere with an order, which was passed to maintain purity of the examination process. 7. I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record including the materials placed by Mr. Nair during the course of these proceedings. 8. An Office Memorandum dated 29.12.2015 (for short, “Office Memorandum”) was issued by the Secretary to the Government of Assam, Secondary Education Department on the subject of guidelines for recruitment of Junior Assistants in provincialised Higher Secondary/High School and High Madrassa. It appears that 54 numbers of posts of LDA (Junior Assistants) were approved for recruitment in various provincialised schools in Barpeta District as per the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003 for short, the Rules. A date was fixed for holding of examination in respect of the aforesaid schools, which is 13.01.2016. For selection to the post of Junior Assistants, written test of 80 marks followed by typing test of 30 marks was contemplated under the provisions of the Rules and the Guidelines. After the written test was over, complaints were lodged alleging malpractices to the Deputy Commissioner, Barpeta as well as to the Inspector of Schools, Barpeta. The Deputy Commissioner requested one Assistant Commissioner to conduct an inquiry into the allegations of malpractice. The Assistant Commissioner made the following recommendation:- “Recommendation During the course of inquiry, no concrete proof has emerged about the alleged irregularity. However, the volume of complaints regarding the examinations, prima-facie indicates towards corruption and malpractices in conduct of examinations. To arrive at a conclusion on the same, it is found necessary to examine the merit list/marks obtained by the candidates. Hence, it is recommended that the mark list of each of the schools in which the examinations were held be obtained from the inspector of schools. To arrive at a conclusion on the same, it is found necessary to examine the merit list/marks obtained by the candidates. Hence, it is recommended that the mark list of each of the schools in which the examinations were held be obtained from the inspector of schools. Following it, a committee may be formed to examine each of the list and come out with recommendations.” 9. Based on the aforesaid recommendation of the Assistant Commissioner, Barpeta, the Deputy Commissioner by an order dated 29.01.2016 constituted an Enquiry Committee headed by Shri Anbamuthan MP, IAS, Assistant Commissioner as Chairman with Dr. Kularanjan Deka, Principal, DIET, Barpeta and Dr. Prakash Sarma, Principal, M.C. College, Barpeta, as the Members, with a request to enquire into the matter and submit an enquiry report within a period of 7(seven) days. The Chairman and the Members of the Committee had submitted their individual reports. 10. The report of the Chairman would go to show that in most of the schools, there is steep difference in marks secured by the first ranker and the second ranker, which is abnormal. His recommendation was as follows:- “Recommendation Junior Assistants who have been selected through a free and fair process and allotted to the schools can help a long way in improving quality of education in the district. In light of the above anomalies and in public interest, it is recommended that the results of the examination be cancelled as it has not been a fair and free process. It is further recommended that any re examination should be conducted centrally so as to avoid any malpractices by providing for better monitoring of the examination and also to ensure that only deserving candidates are selected on the basis of merit.” 11. The report of Dr. Kularanjan Deka, Principal, DIET, discloses that analysis of the merit list of each individual school revealed that there are gross irregularities in awarding marks. There was wide difference of marks between the highest and the next higher mark and one particular school had also doubted that the candidate might have got the answer keys before commencement of the test. Overall, it was opined by him that the test was not conducted properly by the individual schools, resulting in filing of numerous complaints and therefore, it is better to cancel the test and to take a fresh test centrally by using single set of evaluation tools. Overall, it was opined by him that the test was not conducted properly by the individual schools, resulting in filing of numerous complaints and therefore, it is better to cancel the test and to take a fresh test centrally by using single set of evaluation tools. An analysis of the marks in the individual schools was also enclosed thereto. 12. Dr. Prakash Sarma, Principal, M.C. College, Barpeta also observed that in awarding the marks, there was some kind of disparity in most of the schools and it looked like that some particular candidates are favoured by awarding them high marks in comparison to others. He expressed doubt as to whether Supervising Officers were present throughout the examination period. The signature of the Supervising Officers was not even seen on the envelope containing the mark-sheets. 13. Apart from the above broad observations, the Committee Members also took note of aberrations in respect of different schools. 14. On receipt of the report of the Enquiry Committee, the Deputy Commissioner forwarded the report to the Commissioner & Secretary to the Government of Assam, Secondary Education Department vide his letter dated 04.02.2016. The letter reads as follows:- “Sir, With reference to the subject cited above, I have the honour to inform you that several allegations regarding malpractice in the written test examinations for appointment to the post of Lower Division Assistants on 13/01/2016 conducted in various schools of Barpeta district were received by the undersigned from some candidates who appeared in the written test examination and from public for enquiry into the matter and to take necessary action. Owing genuineness of the matter Shri Anbamuthan MP, IAS was directed to inquire into the matter and to submit report vide this office letter No.CAD.5/2016/13 dated 19/01/2016 (copy at Annexure-A) and he has submitted preliminary report vide letter dated 28/01/2016 (copy at Annexure-B) and later on he was directed to enquire into the matter vide this office letter No.BDD.192/2010/Higher Education/Pt-I/266 dated 29/01/2016 (Annexure-C). Subsequently, an enquiry committee was also constituted for establishing the actual facts and circumstances headed by Shri Anbamuthan MP, IAS comprising Dr. Kularanjan Deka, Principal, DIET, Barpeta and Dr. Prakash Sarma, Principal, M.C. College, Barpeta as members. Shri Anbamuthan IAS, Assistant Commissioner, Barpeta has submitted his enquiry report on Merit list of LDA written examination conducted by Secondary Schools, Barpeta, the contents of which will speak for itself. Kularanjan Deka, Principal, DIET, Barpeta and Dr. Prakash Sarma, Principal, M.C. College, Barpeta as members. Shri Anbamuthan IAS, Assistant Commissioner, Barpeta has submitted his enquiry report on Merit list of LDA written examination conducted by Secondary Schools, Barpeta, the contents of which will speak for itself. The committee has recommended that re-examination should be conducted centrally so as to avoid any malpractice by providing better monitoring of the examination and also to ensure only deserving candidates are selected on the basis of merit (Annexure-D & E). This is submitted for favour of kind information necessary action.” 15. On receipt of the report of the Deputy Commissioner, Barpeta, the Director of Secondary Education examined the matter and in his letter to the Secretary, Government of Assam dated 09.02.2016 [Annexure-F to WP(C) No.1887/2016], he advocated against the cancellation of the selection process and instead rooted for re-examination in respect of 2(two) specific schools. He had also opined that recruitment by a centrally sponsored process was not contemplated under the Rules. However, by order dated 24.02.2016 [Annexure-G to WP(C) No.1887/2016], the Government of Assam had accepted the recommendation of the Deputy Commissioner and had decided to hold re-examination in all the schools where vacancy of the Junior Assistants is still existing under the supervision of the Deputy Commissioner, Barpeta. 16. The Deputy Commissioner, Barpeta had associated 2(two) academicians in evaluating whether the selection process undertaken by the schools was conducted in an appropriate manner and they had unequivocally stated that the selection process undertaken had demonstrated glaring irregularities including in awarding of marks. It is also noticeable that a good number of complaints were filed immediately after the written test was held. 17. A selection process must inspire its confidence. It does not appear to the Court that the Enquiry Committee was guided by any irrelevant or extraneous consideration in recommending cancellation of the selection process undertaken. When the Enquiry Committee had recorded that the merit lists of schools reveal that there are gross irregularities in awarding of marks, certainly such a selection process cannot get the stamp of approval from the Court. 18. In that view of the matter, I see no good reason to take a view that the decision making process culminating in issuance of the order dated 24.02.2016 is vitiated in any manner. 19. The matter does not rest here. 18. In that view of the matter, I see no good reason to take a view that the decision making process culminating in issuance of the order dated 24.02.2016 is vitiated in any manner. 19. The matter does not rest here. It will be appropriate to have a look in the Office Memorandum in order to deal with the contention of Mr. Nair regarding lack of supervision and complicity on the part of the persons entrusted with holding of the examination. It will be useful to quote Clauses-5 and 6 of the aforesaid Office Memorandum:- “5. Supervision of the Written Test:- The written test for recruitment to the post of Junior Assistant shall be held under the supervision of one officer to be nominated by the Deputy Commissioner concerned for one or more schools. 6. Setting of Question Paper:- The Question Papers for the written test shall be prepared as follows: (i) Every School where vacancies of Junior Assistant arises, shall be required to prepare their respective question paper of similar standard as prescribed by rules and submit the Question Paper sets (100 in number) in a single sealed cover mentioning the name of the School on the top cover only to the concerned Inspector of Schools. (ii) Each of the SMC shall also submit the Answer Key in a sealed cover separately mentioning the name of the School on the top cover to concerned Inspector of Schools. (iii) On receipt of both sealed Question Paper Answer Key Booklet, the concerned Inspector of Schools shall keep them in the Treasury for safe custody and will be released on the day of the Test early hours. (iv) The Executive Magistrate or any other officer nominated by the Deputy Commissioner along with the Inspector of Schools, will ensure that the sealed packets are randomly allotted amongst the Schools conducting the written test ensuring that the School which prepared the Question Paper will not receive the same Question Booklet. This process will be done on the day of the Test in the presence of the Executive Magistrate or the officer authorized by the Deputy Commissioner. (v) The randomized Question Paper Booklet and the relevant Answer Key Booklet will be handed over to the Supervisory Officers of School, who will be nominated by the DC concerned who in turn will hand over it to the principal/Head Master at 10 AM only. (v) The randomized Question Paper Booklet and the relevant Answer Key Booklet will be handed over to the Supervisory Officers of School, who will be nominated by the DC concerned who in turn will hand over it to the principal/Head Master at 10 AM only. In no case the Answer Key Booklet shall be handed over on the day of examination. The answer key has to be handed over on the next day only. (vi) On completion of the examination by the SMC, which shall be conducted under strict supervision/observation of the Supervisory Officers concerned (as per list below) evaluation and tabulation shall be conducted immediately by the Principal of the concerned School and publish overall merit list in the School's Notice Board on the same day itself for wide public consumption. A signed copy of the marked list shall be handed over to the Supervisory Officer who in turn shall deposit the same to the Executive Magistrate. (vii) In no case, will a President/Member of the Selection Committee participate in the selection process, if any of his/her close relatives are involved as candidates in the process. In such cases, the Inspector of Schools concerned will nominate suitable alternatives.” 20. The Office Memorandum in theory takes note of safeguards that may be taken for smooth and fair holding of the examination. The fact that the Enquiry Committee doubted that the answer key had leaked out, would point fingers on the persons responsible in conducting the examination. The Deputy Commissioner will look into this aspect of this matter when the examinations are held again so that there is no room for this kind of allegations to surface. 21. The respondents will take steps for holding of a fresh examination without any delay. 22. At this stage, it is submitted by Mr. Saikia, learned standing counsel, Secondary Education Department that once again SIU approval has to be taken as the SIU approval was up to 31.03.2016. As the submission advanced by Mr. Nair is that these are regular posts, all steps necessary for holding the fresh examination shall be taken with expedition, bearing in mind that a selection process had to be cancelled for irregularities committed during the selection process. 23. With the above observations and directions, both the writ petitions stand dismissed. No costs. 24. The papers placed by Mr. Nair is that these are regular posts, all steps necessary for holding the fresh examination shall be taken with expedition, bearing in mind that a selection process had to be cancelled for irregularities committed during the selection process. 23. With the above observations and directions, both the writ petitions stand dismissed. No costs. 24. The papers placed by Mr. Nair, learned counsel for the petitioner in WP(C) No.1887/2016 are placed on the record.