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2017 DIGILAW 207 (GAU)

Kasturi Bhuyan v. State of Assam

2017-02-15

UJJAL BHUYAN

body2017
JUDGMENT : Mr. Ujjal Bhuyan, J. This order will dispose of both WP(C) Nos. 4694/2016 and 4753/2016. 2. Heard Mr. S. Saikia, learned counsel for the petitioners in both the cases and Mr. Ravi Sarma, learned Standing Counsel, Secondary Education Department, Govt. of Assam. 3. While WP(C) No. 4694/2016 relates to selection and appointment to the post of Lower Division Assistant (LDA)/Junior Assistant in the Samaguri Higher Secondary School, Nagaon, subject matter of WP(C) No. 4753/2016 relates to selection and appointment to such post in the Auniati High School, Nagaon. 4. While issuing notice in WP(C) No. 4694/2016 on 08.08.2016 the following order was passed:- "Matter relates to selection and appointment in the post of Lower Division Assistant (LDA/Junior Assistant in the Samaguri Higher Secondary School, a provincialised Higher Secondary School. In the selection held pursuant to the advertisement dated 12.12.2015, petitioner has been selected at Serial No.1 in order of merit and the School Managing Committee has recommended her appointment before the Inspector of Schools, Nagaon District Circle on 01.02.2016. However, no decision has been taken thereon. Apprehension has been expressed that the authority may abandon the said selection process and make appointment from outside the select list. In view of above, respondent No.3 is directed not to appoint any person as LDA/Junior Assistant in the Samaguri Higher Secondary School, Nagaon from outside the select list dated 01.02.2016 on violating the merit position in the select list. Pendency of this petition shall also not be a bar for the respondents to consider appointment of the petitioner in the said post." 5. Likewise while issuing notice in WP(C) No. 4753/2016 on 12.08.2016 the following order was passed:- "After hearing learned counsel for the parties and on perusal of the materials on record, as an interim measure, it is hereby directed that respondents shall not fill up the post of Lower Division Assistant in the Auniati High School, Nagaon bypassing the recommendation of the Selection Committee dated 01.02.2016. Pendency of this petition shall also not be a bar for the respondents to consider giving effect to such recommendation of the Selection Committee." 6. In both the cases, Sri Mridul Neog, Inspector of Schools, Nagaon District Circle i.e. respondent No. 3 has filed identical affidavits. For the sake of convenience, affidavit filed in WP(C) No. 4694/2016 is referred to hereunder. In both the cases, Sri Mridul Neog, Inspector of Schools, Nagaon District Circle i.e. respondent No. 3 has filed identical affidavits. For the sake of convenience, affidavit filed in WP(C) No. 4694/2016 is referred to hereunder. In paragraph 5 of his affidavit, respondent No. 3 has stated that Samaguri Higher Secondary School and Auniati High School, both in the district of Nagaon, had constituted School Selection Committee for conducting selection for the post of Junior Assistant in the two Schools. School Selection Committee of Samaguri Higher Secondary School selected Smt. Kasturi Bhuyan, petitioner in WP(C) No. 4694/2016 whereas School Selection Committee of Auniati High School selected Smt. Leena Borah, petitioner in WP(C) No. 4753/2016, for the post of Junior Assistant. The select lists were forwarded to the office of respondent No. 3. In para-6 of the affidavit, it is stated that "someone" verbally informed the Deputy Commissioner, Nagaon that "some" irregularities were committed by the School Selection Committee of the two schools in the selection undertaken for the post of Junior Assistant. Therefore, Deputy Commissioner, Nagaon directed respondent No. 3 to conduct an enquiry, Accordingly, an enquiry was conducted jointly on 22.02.2016 by respondent No. 3 and by the Additional Deputy Commissioner (Education), Nagaon. In the course of the enquiry, no irregularities could be detected in respect of the selection undertaken in Auniati High School but in respect of the selection undertaken in Samaguri Higher Secondary School, it was found that marks awarded to the questions were not proper and in respect of some questions, marks were not awarded although the answers were evaluated. Thus the complaint in respect of Samaguri Higher Secondary School was found to be justified. Accordingly, enquiry report was submitted to the Deputy Commissioner, Nagaon with a recommendation for re-examination. The enquiry report has been annexed to the said affidavit. 7. Submissions made by learned counsel for the parties have been considered. 8. The post of LDA, which has now been re-designated as Junior Assistant, is included in Class-III of Assam Secondary Education (Provincialised) Service as defined under Rule 2 (s) of the Assam Secondary Education (Provincialised) Service Rules, 2003 read with Rule 3(2)(a) of the said Rules. 7. Submissions made by learned counsel for the parties have been considered. 8. The post of LDA, which has now been re-designated as Junior Assistant, is included in Class-III of Assam Secondary Education (Provincialised) Service as defined under Rule 2 (s) of the Assam Secondary Education (Provincialised) Service Rules, 2003 read with Rule 3(2)(a) of the said Rules. Rule 4 of the 2003 Rules lays down the method of recruitment to the post of Junior Assistant which says that the said post shall be filled up by way of direct recruitment by the appointing authority from the select list prepared by the School Selection Committee on the basis of test and interview. As per Rule 4 (IV), the School Selection Committee shall prepare a select list of candidates containing double the number of vacancies and the Member Secretary shall submit the select list to the appointing authority for appointment. As per Rule 2 (b) (ii), Inspector of Schools is the appointing authority for the post of Junior Assistant. The appointing authority shall fill up the vacancy in order of merit by following the reservation principle from the select list. 9. As per Rule 8(4) the School Selection Committee is to be constituted as under:- 1. President of the Managing Committee Chairman 2. Vice-Principal/Post Graduate Teacher in case of Higher Secondary School or Assistant Head Master/Senior most Graduate Teacher in case of High School Member 3. One parent to be nominated by the Managing Committee Member 4. Principal/Head Master of the School Member-Secretary. 10. Only in respect of appointment of Post Graduate Teacher and Graduate Teacher, Rule 8 (5) provides for a District Approval Committee with Deputy Commissioner of the concerned district or his nominee to be the Chairman. But such District Approval Committee is not visualized in case of appointment to the post of Junior Assistant. 11. Having regard to the scheme of selection to the post of Junior Assistant under the 2003 Rules as discussed above, it is quite evident that Deputy Commissioner of the concerned district has no role to play in the selection. He is neither a part of the School Selection Committee nor the appointing authority. Neither has he been assigned any supervisory role. He is neither a part of the School Selection Committee nor the appointing authority. Neither has he been assigned any supervisory role. In such circumstances, interference by the Deputy Commissioner in the selection process for the post of Junior Assistant in Higher Secondary Schools and High Schools would be beyond the mandate of the 2003 Rules as such interference is not contemplated under the said Rules. 12. That apart, from the affidavit of respondent No. 3 himself, more particularly from para 6 thereof, it is seen that "someone" verbally informed the Deputy Commissioner, Nagaon that "some" irregularities were committed by the School Selection Committee. To say the least, such a statement is totally vague and ought not to have been taken note of. Who is this "someone" has not been mentioned and in any case, why should a verbal complaint be acted upon by the Deputy Commissioner. If that is not enough, the verbal complaint was that "some" irregularities were committed without elaborating or mentioning the nature or extent of such irregularities, if at all. Therefore, the very basis of interference by the Deputy Commissioner is highly questionable and cannot be sustained. Even the report submitted, which otherwise has no legal sanctity, is totally vague in as much as it is says that in respect of Samaguri Higher Secondary School marks awarded were not proper whereas in respect of some answers marks were not awarded. Which questions were not properly assessed and for which answers marks were not awarded have not been discussed or stated in the enquiry report. Such a vague enquiry report besides being legally unsustainable also do not inspire any confidence at all. It appears to be a self-serving report to justify the illegal and unwarranted interference of the Deputy Commissioner. Even this enquiry report says that no irregularities were observed in the selection carried out in Auniati High School. 13. On due consideration and on a thorough examination of the matter, Court is of the considered opinion that withholding of appointments to the post of Junior Assistant in the two Schools is not at all justified. On non-existent grounds, the selection process was interfered with by an authority who is not authorised to do so under the law. 14. 13. On due consideration and on a thorough examination of the matter, Court is of the considered opinion that withholding of appointments to the post of Junior Assistant in the two Schools is not at all justified. On non-existent grounds, the selection process was interfered with by an authority who is not authorised to do so under the law. 14. Having regard to the above, Inspector of Schools, Nagaon District Circle is directed to act on the respective select lists and thereafter issue consequential appointment orders to the two petitioners which shall be done within a period of 30 (thirty) days from the date of receipt of a certified copy of this order. 15. Both the writ petitions are accordingly allowed but without any order as to cost.