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2017 DIGILAW 488 (GAU)

Rina Rani Deka v. State of Assam

2017-04-25

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. I. H. Saikia, learned counsel appearing for the petitioners in WP(C) No. 3074/2011, WP(C) No. 3088/2011, WP(C) No.3137/2011, WP(C) No.4572/2011, WP(C) No.4696/2011, WP(C) No.5076/2011, WP(C) No.4792/2011, WP(C) No.3087/2011, WP(C) No.5075/2011, WP(C) No.5580/2011, WP(C) No. 4590/2011, WP(C) No.5613/2011, WP(C) No.3075/2011, WP(C) No.3689/2011, Mr. R. Islam, learned counsel appearing for the petitioner in WP(C) No.3218/2011, Mr. K.H. Choudhury, learned senior counsel appearing for the petitioners in WP(C) No.3380/2011, WP(C) No. 3385/2011, Mr. S.K. Medhi, learned senior counsel appearing for the petitioners in WP(C) No. 2250/2011, WP(C) No.2248/2011, WP(C) No.2253/2011, WP(C) No.2251/2011, WP(C) No.2252/2011, Mr. R. C. Saikia, learned counsel appearing for the petitioner in WP(C) No.3594/2011, Mr. B. Banerjee, learned counsel appearing for the petitioner in WP(C) No.3057/2011 and Mr. D. Saikia, learned Advocate General, Assam appearing for the State respondents. 2. This batch of 24 writ petitions had been preferred more or less under the same circumstances and the factual aspects involved is to a great extent similar with each other. In all these writ petitions, the petitioners were appointed as Assistant Teachers in different High schools in the district of Nalbari and the genesis of such appointments are ascertained to be traceable to an advertisement dated 03.09.1991, pursuant to which, a select list was published on 04.01.1995. It is the case of the petitioners that they were either appointed pursuant to the said advertisement and the select list or they were appointed pursuant to the select list, but possibly beyond the advertised vacancies, while some other petitioners have ascertained that they were appointed pursuant to different orders of this Court in different writ petitions, while others were appointed prior to the said advertisement and select list. It is submitted that on the other hand, some of the writ petitioners were also appointed after the aforesaid advertisement in a process, which was covered by the advertisement of 1991. 3. The common grievance of the petitioners is that pursuant to a show cause notice dated 26.04.2011, which is annexed as Annexure-14 (series) to the writ petition, the petitioners were asked to appear before the Commissioner and Secretary to the Government of Assam, Education (Secondary) department for a personal hearing with all relevant documents on 30.04.2011. 3. The common grievance of the petitioners is that pursuant to a show cause notice dated 26.04.2011, which is annexed as Annexure-14 (series) to the writ petition, the petitioners were asked to appear before the Commissioner and Secretary to the Government of Assam, Education (Secondary) department for a personal hearing with all relevant documents on 30.04.2011. Accordingly, the petitioners had appeared, but thereafter, the letter dated 26.05.2011, which is annexed as Annexure-16 to the writ petition, was issued under the signature of the Inspector of Schools, Nalbari District Circle, Nablari, whereby it was provided that on perusal of the select list prepared by the authorities on 04.01.1995 for appointment of Assistant Teachers during the year 1995-1996, the names of the petitioners do not appear in the select list and therefore, they were appointed beyond the selection process. Accordingly, they were asked to show cause as to why there services as Assistant Teachers would not be terminated as the appointment orders were illegal and in contravention to existing rules of appointment. Thereafter, by the order dated 27.05.2011 passed by the Commissioner and Secretary to the Government of Assam, Secondary Education Department, which is annexed as Annexure-17 to the writ petition, the authorities arrived at a conclusion that the petitioners could neither prove the legality of their appointments nor could justify their continuation in service and that since their selection is per-se illegal, their continuation in service would also be illegal. Accordingly, the Director of Secondary Education, Assam was directed to complete the process of terminating the services of the petitioners pursuant to the orders of this Court in WP(C) No.5216/1996 and other connected writ petitions. In the said order, which is in respect of seven teachers, namely, Paramananda Mishra, Kohinur Begum, Boctoza Ahmed, Md. Abdur Rezak, Rina Rani Deka, Bahar Ali Ahmed and Imam Ali, the authorities came to a conclusion that they were first appointed and probably their names were incorporated in the select list and taking into account the number of vacancies, none of them can be treated as legal appointees. 4. It is stated that in respect of some other petitioners, like the petitioners in WP(C) No. 3385/2011 and WP(C) No.3380/2011, show cause notices as referred to above, were issued but there were no further orders in the nature of the order dated 27.05.2011. 4. It is stated that in respect of some other petitioners, like the petitioners in WP(C) No. 3385/2011 and WP(C) No.3380/2011, show cause notices as referred to above, were issued but there were no further orders in the nature of the order dated 27.05.2011. Be that as it may, the factual situation is that pursuant to the aforesaid procedure adopted by the respondent authorities, the petitioners involved in this batch of writ petitions were either terminated from service or there was a serious apprehension that their services would be terminated. In such circumstances, the petitioners had approached this Court by way of the present writ petitions. 5. It is stated that in all the writ petitions, there were interim orders either directing the authorities to maintain status-quo or protecting the petitioners in the interim as regards their continuance in service. Pursuant to such interim orders, all the petitioners are continuing in service as teachers till date. 6. In the aforesaid circumstances, the petitioners have raised a common grievance that the procedure adopted by the respondent authorities in arriving at the conclusion, either terminating them, or to terminate them, is arbitrary and the procedure adopted did not afford the petitioners an adequate opportunity of hearing and presenting their case before the respondent authorities. It is submitted that the procedure adopted did not satisfy the requirement of complying with the principles of natural justice. 7. As already alluded, the petitioners may have been appointed under different facts and circumstances and therefore as every individual petitioner was appointed in a circumstance, which may not be similar with each other, there is a requirement that the authorities make it known to the concerned petitioner as to what is the case of the respondents against each such petitioner as regards their mode of appointment and entry into service. Depending upon the case that the respondent authorities may have against the individual petitioners, the petitioners be given an adequate opportunity to present their case, if necessary by producing the relevant materials that they may have to justify their entry in service. Depending upon the case that the respondent authorities may have against the individual petitioners, the petitioners be given an adequate opportunity to present their case, if necessary by producing the relevant materials that they may have to justify their entry in service. As it is the case of the respondent authorities in the show cause notice that the petitioners are required to appear before the Commissioner and Secretary with relevant materials and subsequently it being the conclusion of the respondent authorities that their appointments were beyond the select list of 1995, it appears that the individual petitioners did not have an adequate opportunity to present their case with relevant materials to justify the method, by which they had entered into the service. 8. As the petitioners intend to make an attempt to justify the legality or validity of their respective appointment orders, the law requires that the individual petitioners be given an individual opportunity of hearing to present their case in order to justify their validity of their appointment orders. 9. Mr. D. Saikia, leanred Advocate General, Assam appearing on behalf of the State respondents have agreed to a proposal that instead of the petitioners requiring to justify in these writ proceedings that their entry of service is as per procedure, it would be appropriate if the petitioners are given a due opportunity by the respondent to project their individual cases and also justify their further continuance in service. The respective learned counsel for the petitioners also does not object to such a proposal. 10. In view of the aforesaid, this Court deems it appropriate that if the State respondent authorities constitute a High Powered Committee to give an appropriate opportunity of hearing to the respective petitioners to produce their materials to justify their appointment orders, the ends of justice as regards the question of giving appropriate opportunity to the petitioners and also compliance of natural justice would be met. 11. As suggested by Mr. 11. As suggested by Mr. D. Saikia, learned Advocate General, Assam and as agreed by the learned counsel for the petitioners, the High Powered Committee shall consist of:- (i) The Commissioner and Secretary to the Government of Assam in the Personnel Department to be the Chairman of the Committee; (ii) Secretary to the Government of Assam in the Finance Department as Member (iii) Secretary to the Government of Assam in the Home Department as Member The Director of Secondary Education, Assam shall be the Member Secretary of the aforesaid High Powered Committee and the Director shall be the custodian of records and also to assist the Committee in any manner that the committee may require, more particularly in respect of production of materials and records to facilitate the enquiry. It is provided that the Director being the Member Secretary shall be associated with the Committee only for the purpose of facilitating as aforesaid and shall not be a member of the Committee for the purpose of its decision. It is provided that the aforesaid Committee shall issue notices to the individual petitioners specifying the date, time and place on which they are required to appear. Further, the notice shall also contain as to what is the case of the State respondents authorities against such petitioner for not allowing them to continue in service any further. Depending upon the reason stated in the notice, the respective petitioners shall invariably appear before the Committee on the given date and time and place along with all relevant materials that he/she intends to produce in order to justify the validity and legality of their respective appointments. If necessary, the petitioners may also submit a short reply, so that the High Powered Committee is facilitated to know exactly as to what is the case of the individual petitioner. The High Powered Committee shall also make available the records that are with the State respondent authorities for inspection of the respective petitioners, if they desire to inspect the same in order to justify their claim. It is fairly submitted by the learned Advocate General, Assam that if necessary, the photocopy of the relevant portion of the records pertaining to the particular petitioner would also be provided to such petitioner, if the petitioner desires for the same. 12. It is fairly submitted by the learned Advocate General, Assam that if necessary, the photocopy of the relevant portion of the records pertaining to the particular petitioner would also be provided to such petitioner, if the petitioner desires for the same. 12. Upon such procedure being adopted, the High Powered Committee shall pass individual speaking orders in respect of the claim of the respective petitioners and provide a copy of such order to them. It is provided that depending upon the decision of the High Powered Committee in respect of the individual petitioners, the authorities thereafter would be at liberty to take appropriate decision on the further continuance or non-continuance of the petitioners in service. It is clearly provided that while adopting the aforesaid procedure, the High Powered Committee shall proceed in a free, transparent and considerate manner and the decision shall be taken based purely upon the facts of individual case and by taking into consideration the relevant provisions of law. 13. The aforesaid exercise be preferably carried out within a period of three months from the date of receipt of a certified copy of this judgment and order. It is provided that till the individual decisions are arrived at, the status-quo as on today in respect of the services of the petitioners shall be continued and such order shall merge with the final order to be passed by the authority. In terms of the above, the writ petitions stand disposed of.