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2017 DIGILAW 566 (GAU)

State of Assam v. Hari Narayan Singh

2017-05-11

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Ms. P. Chakraborty, learned counsel representing the appellant and Mr. I.H. Saikia, learned counsel representing the respondents. Also heard respective counsels representing the writ petitioners in the writ petitions tagged to the writ appeal. Arguments on behalf of the writ petitioners were advanced by Mr. I.H. Saikia, Mr. S. Das, Mr. M.H. Rajbarbhuiyan and Mr. I. Alam, Advocates respectively. 2. The order under appeal comes with a direction to the concerned State respondent to promote the writ petitioners in WP(C) 6800/2014 as regular Headmaster of respective schools in which they are holding the charge of Headmaster. Being aggrieved, the State of Assam is on appeal. Similar claims for regular appointment as Headmaster are made in the other writ petitions. As determination of the writ appeal would also answer the claim made in the writ petitions, the same were tagged for hearing along with the appeal filed by the State, as per Court's order dated 19.11.2015. A common order is, therefore, passed, which would also answer Review Petition 92/2014, which is tagged along with this batch of cases. 3. Facts common to the cases are that on 02.11.2010 an Advertisement was issued by the Director of Secondary Education cum Member Secretary, State Selection Board inviting applications for filing up various posts in provincialised educational institutions as per the provisions of Assam Secondary Education (Provincialisation) Service Rules, 2003 (in short, the Rules). The present batch of cases is confined to the post of Headmaster/Headmistress of High Schools. The minimum qualification prescribed was Graduate in Arts, Science or Commerce with B.T./B.Ed. and having at least 10 years of teaching experience as Graduate Teacher. The writ petitioners being eligible, vied for the post, underwent the selection process and were recommended by the State Selection Board. A school-wise Select List was prepared in terms of the Rules by the State Selection Board on 27.01.2011, which found approval of the competent authority on 07.07.2011. As no appointment to the post of regular Headmaster was forthcoming and the writ petitioners only allowed to function as in-charge Headmaster, the WP(C) 6800/2014 was instituted. The order dated 08.04.2015 passed in the said WP(C) 6800/2014 is the subject matter in the writ appeal before us. 4. As no appointment to the post of regular Headmaster was forthcoming and the writ petitioners only allowed to function as in-charge Headmaster, the WP(C) 6800/2014 was instituted. The order dated 08.04.2015 passed in the said WP(C) 6800/2014 is the subject matter in the writ appeal before us. 4. The learned Single Judge allowed WP(C) 6800/2014 only on the basis of observations made in another analogous case i.e. WP(C) 6777/2013 wherein the State respondents were found at fault in dilly-dallying with the Select List, so much so, that they were deliberately waiting for the Select List to expire and when, in fact, it expired, took advantage of the situation to deny promotion to the writ petitioners therein as Headmasters on regular basis. Relying on the observations in WP(C) 6777/2013, the learned Single Judge disposed of WP(C) 6800/2014 with direction to the State respondent concerned to promote the writ petitioners as regular Headmaster of their respective schools within a time-bound period. 5. The core issue falling for consideration is whether the writ petitioners in WP(C) 6800/2014 were entitled to the reliefs sought for and for that matter whether the writ petitioners in all other writ petitions tagged along with the hearing of the present writ appeal are entitled to the same benefit as in the order dated 08.04.2015 of the learned Single Judge. The determination of the core issue would primarily fall on the validity of the Select List-whether any relief can be granted based on a Select List which had expired by lapse of one year validity period and/or reasonable time. 6. It would be pertinent to note that the writ petitions under consideration were instituted in the year 2014 and 2015 respectively. This gains significance, inasmuch as, the Select List prepared by the State Selection Board and as approved by the competent authority on 07.07.2011, generally speaking, had a shelf life until 1 (one) year next i.e. 06.07.2012. Even going by the order passed in WP(C) 6777/2013, the Select List expired at the end of the year 2013. Therefore, unlike the petitioners in WP(C) 6777/2013, the writ petitioners in the present batch of cases, including those in the subject appeal, approached the Court well beyond the expiry of the Select List. Even going by the order passed in WP(C) 6777/2013, the Select List expired at the end of the year 2013. Therefore, unlike the petitioners in WP(C) 6777/2013, the writ petitioners in the present batch of cases, including those in the subject appeal, approached the Court well beyond the expiry of the Select List. Another significant observation made in WP(C)6777/2013 is that there were clear vacancies to accommodate the petitioners therein for the post of Headmaster in the schools where they have been holding the charge of Headmaster before the expiry of the Select List. There is a clear distinction in respect of the entitlement of the rights of the petitioners in WP(C) 6777/2013 to those in the present batch of writ petitions and the petitioners in WP(C) 6800/2014. Whereas the former approached the Court within the validity period of the Select List, the latter did not. 7. Turning to the Rules in question, more particularly to Rule 14 thereof which, inter alia, provides for recruitment to the post of Headmaster, indeed, there is no mention of any period during which the Select List would remain in force. There is no provision prescribing that the Select List so prepared would remain valid for one year from the date of its approval by the competent authority. Rule 15, however, provides an indication as regards its validity, in that, it is made incumbent upon the Director of Secondary Education to make an assessment before the end of each year as to the number of vacancies that have occurred in the cadre of Headmaster to be filled up by promotion in the next year. Then follows the procedure for making selection and issuing promotion order. The required selection and promotion being an annual/ yearly affair, it is logical that the shelf life of a Select List is for a period of one year. 8. Notwithstanding the fact that the Rules do not provide a clear-cut validity period, a Select List cannot enjoy continuity beyond a reasonable period of time or be continued until the Select List gets exhausted, no matter even if it goes beyond one year or beyond a reasonable period of time. 9. In State of Rajasthan v. Jagdish Chopra, reported in (2007) 8 SCC 161 , the Supreme Court held that even in absence of any rule, the ordinary period of validity of Select List should be one year. 9. In State of Rajasthan v. Jagdish Chopra, reported in (2007) 8 SCC 161 , the Supreme Court held that even in absence of any rule, the ordinary period of validity of Select List should be one year. While interpreting Rule 9(3) of the Rajasthan Educational Subordinate Service Rules, 1971, it was held that although the same does not specifically provide for the period for which the merit list shall remain valid, the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. In the instant case, the intent of the legislature can be had from Rule 15 of the Rules where assessment as to the number of vacancies for the purpose of filling up the post by promotion is required to be made before the end of each year. The ratio laid down in Jagdish Chopra (supra) is squarely applicable in the cases at hand. 10. In State of Bihar v. Amrendra Kumar Mishra, reported in (2006) 12 SCC 561 , the Supreme Court observed that life of a panel, as is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel. Pertinent to note that in the present situation the Select List dated 27.01.2011, which found approval on 07.07.2011, was not extended by any order of the State beyond one year or beyond the end of 2013 [as observed in WP(C) 6777/2013]. 11. In the order under appeal, the learned Single Judge by relying upon the earlier decision in WP(C) 6777/2013 had granted relief, which in our opinion is erroneous. It is well settled that mandamus can be issued when the applicant establishes that he has a legal right and the said right was subsisting on the date of the petition. Evidently, the Select List no longer survived after one year or for that matter beyond the end of 2013 [ ref. WP(C) 6777/2013]. The rights of the writ petitioners included in the Select List did not subsist. Even if on some occasion appointments are made by the Appointing Authority from a Select List after expiry of its validity, such illegal action would not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. WP(C) 6777/2013]. The rights of the writ petitioners included in the Select List did not subsist. Even if on some occasion appointments are made by the Appointing Authority from a Select List after expiry of its validity, such illegal action would not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. In the instant case, the life of the Select List prepared on 27.01.2011 and approved on 07.07.2011 had expired long since and the writ petitioners who claim their rights to be appointed/promoted on the basis of such Select List did not have a subsisting right on the date they approached this Court. 12. The case in WP(C) 6800/2014 and all other writ petitions tagged with the present appeal are clearly distinguishable from WP(C) 6777/2013. In the former, none of the writ petitioners had a subsisting right on the date of making the petition. No right vested on them to be enforced under Article 226 of the Constitution. No mandamus could have been issued directing the State respondents to do something which is contrary to law. 13. In the aforesaid premises, the writ appeal is allowed and the accompanying writ petitions along with the review petition are dismissed. The order dated 08.04.2015 in WP(C) 6800/2014 is set aside, save and except the observations made in respect of WP(C) 4189/2013 and in respect of respondent no. 3 (Smti. Abanti Bhagawati) and respondent no. 4 (Md. Ahmed Ali) in WP(C) 6800/2014, who have been promoted to the post of Headmistress and Headmaster respectively on 20.06.2016, following the order of this Court dated 10.05.2016 passed in the present appeal proceeding. 14. Before parting with the case, we place on record the information made available to us by the counsels that the writ petitioners who are in service as on date have appeared in the fresh selection exercise conducted in the year 2015, although no result has yet been published or any Select List prepared or approved. We hope and trust that the State will dwell on this issue and do the needful at the earliest.