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2017 DIGILAW 1153 (GAU)

Jitendra Barman v. State of Assam

2017-08-24

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : MANOJIT BHUYAN, J. 1. Heard Mr. D. Mozumder, learned senior counsel representing the appellant/respondent no. 5 in the writ petition as well as Mr. D. Das, learned senior counsel, representing respondent no. 5 herein/writ petitioner. Also heard Ms. P. Chakraborty, learned counsel representing respondent nos. 1 and 3 and Mr. R. Sarmah, learned counsel representing respondent no. 4. None has appeared to represent respondent no. 2. 2. This intra-court appeal is presented against the Order dated 25.11.2016 passed in WP(C) 2608/2013. The writ petition was disposed of with direction to the Director of Secondary Education, Assam to take a fresh decision on the question as to whether the refusal to consider the B.Ed degree of the writ petitioner by the Selection Board was justified or not. The appellant herein is aggrieved of the said direction for reconsideration as any order in favour of the writ petitioner would go to dislodge his selection at Serial No. 1 in the list for appointment to the post of Post Graduate Teacher in Mathematics in Deomornoi Higher Secondary School. Besides, such direction ought not to have been passed in the facts of the case. 3. Facts essentially to be noticed are that an Advertisement dated 08.02.2003 was published under the hand of the Director of Secondary Education, Assam inviting applications for filling up posts of Post Graduate Teachers in the various provincialised Higher Secondary Schools of Assam. The applications were required to be submitted in the respective schools where vacancies existed, as per confirmation made by the Inspector of Schools concerned. The eligibility criteria with regard to age and educational qualifications were laid down with further stipulation that applications are to be submitted to the Schools within 20 days from the date of publication of the Advertisement. Pertinent to note that on the date of the Advertisement, the recruitment process was governed under the Assam Secondary Education (Provincialisation) Service Rules, 1982 (in short ‘1982 Rules’). Schedule III appended to the 1982 Rules, particularly under ‘B’(vi), a credit of 85 marks is envisaged for having qualification of B.Ed/M.Ed. Also pertinent to note that until the last date for submitting applications, the respondent no. 5/writ petitioner did not have B.Ed degree. In other words, the respondent no. 5/writ petitioner acquired B.Ed degree on 08.04.2003, that is, after expiry of the last date for submitting applications in terms of the Advertisement dated 08.02.2003. Also pertinent to note that until the last date for submitting applications, the respondent no. 5/writ petitioner did not have B.Ed degree. In other words, the respondent no. 5/writ petitioner acquired B.Ed degree on 08.04.2003, that is, after expiry of the last date for submitting applications in terms of the Advertisement dated 08.02.2003. 4. The intervening facts between the date of publication of Select List on 27.02.2006 and filing of WP(C) 2608/2013 involved challenge made to the recruitment process in a bunch of writ petitions, which eventually travelled before the Division Bench on appeal and which stood answered accordingly on 11.12.2008. In terms thereof, direction made to the State was to conduct fresh recruitment process within the confines of the Advertisement dated 08.02.2003. A fresh advertisement was issued on 20.08.2007, interview held on 09.11.2010 and Select List was published on 06.04.2013, showing the appellant at Serial No. 1 in the list prepared for Deomornoi Higher Secondary School. The selection of the appellant vide Select List dated 06.04.2013 was the subject matter in WP(C) 2608/2013, which was answered by the learned Single Judge as follows: “6. Director of Secondary Education, Assam in his affidavit has stated that petitioner had acquired B.Ed degree on 08.04.2003 after the Advertisement dated 08.02.2003. Therefore, his B.Ed. degree was not taken into consideration. 7. From the above, it is evident that when the interview had taken place, both initially in the year 2003 as well as in the subsequent interview in the year 2010, petitioner possessed the B.Ed. degree. It was a long drawn selection process, starting from the Advertisement on 08.02.2003 to publication of select list on 06.04.2013. In such circumstances, refusal to consider the B.Ed degree of the petitioner by the Selection Board may not be justified. This aspect of the matter would require reconsideration by the Director.” 5. It appears from the above that the directions made by the learned Single Judge for reconsideration of the case of the writ petitioner was on the premises that when interview had taken place, initially in the year 2003 and thereafter in the year 2010, the respondent no. 5/writ petitioner had possessed the B.Ed degree. The point for adjudication is whether the respondent no. 5/writ petitioner had possessed the B.Ed degree. The point for adjudication is whether the respondent no. 5/writ petitioner can at all claim entitlement to the benefit under the aforesaid Schedule III of the 1982 Rules to the extent of getting 85 credit points on account of having acquired B.Ed degree on 08.04.2003, which is a date subsequent to the last date fixed for submitting applications and which is also a date falling prior to the holding of the initial interview on 20.09.2003. 6. On the point involved, the Supreme Court in a catena of decisions have held that qualifications which are required to be considered would be those possessed as on the last date of filing applications. Having regard to the pronouncements made by the Supreme Court, it is now well-established that where applications are called prescribing the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone. For ready reference, notice can be had to the case in Rekha Chaturvedi v. University of Rajasthan and Others, reported in (1993) Supp. (3) SCC 168; Ashok Kumar Sharma and Others v. Chander Shekhar and Another, reported in (1997) 4 SCC 18 and in the case of State of Haryana and Others v. Anurag Srivastava and Another, reported in (1998) 8 SCC 399 . 7. In view of the clear position of law, the direction for reconsideration of the case of the respondent no. 5/writ petitioner is not sustainable in law. For the fact that B.Ed degree was acquired subsequent to the last date for submitting applications, a fresh consideration in respect of the B.Ed degree of the writ petitioner is unwarranted. The refusal of the Selection Board to consider the B.Ed degree of the writ petitioner, acquired on 08.04.2003, was justified and in this view of the matter there was no requirement warranting reconsideration of the B.Ed. degree by the Director of Secondary Education, Assam. 8. The core issue being answered in favour of the appellant, we do not intend to dilate on other issues raised by senior counsel Mr. D. Das as to the alleged classification made in respect of persons who had responded to the initial Advertisement dated 08.02.2003 and those who had responded to the subsequent Advertisement dated 20.08.2007. 8. The core issue being answered in favour of the appellant, we do not intend to dilate on other issues raised by senior counsel Mr. D. Das as to the alleged classification made in respect of persons who had responded to the initial Advertisement dated 08.02.2003 and those who had responded to the subsequent Advertisement dated 20.08.2007. On this aspect, it would be suffice to say that no materials have been placed on record to show that any person acquiring B.Ed degree after the last date for submitting application in terms of the Advertisement dated 08.02.2003, had been given the benefit under clause B(vi) of Schedule III of the 1982 Rules. 9. For the reasons stated above, we allow this appeal by setting aside the Order dated 25.11.2016 passed in WP(C) 2608/2013, in so far as the direction made to the Director of Secondary Education, Assam, is concerned. Ordered accordingly.