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2017 DIGILAW 667 (GAU)

Babita Kalita v. State of Assam

2017-05-25

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. M. Dutta, learned counsel representing-appellant as well as Mr. K.P. Pathak learned Standing Counsel, Secondary Education Department, appearing for the respondents. 2. This intra-Court appeal is presented against the order dated 05.04.2016 passed in WP(C) 4195/2013. 3. The appellant/writ petitioner had responded to the Advertisement in the year 1996 for recruitment to the post of teachers including the posts of Assistant Teachers (Graduate Teachers), Classical Teachers, Hindi Teachers etc. in various provincialised High/Higher Secondary Schools and High Madrassas in the State. At that point of time she had passed Higher Secondary and had qualification as Probin in Hindi and therefore applied a post of Hindi Teacher. The District Level Selection Board, Kamrup had selected the appellant for the post of Assistant Teacher and following the said selection she was appointed as an Assistant Teacher in Kachari Mahal High School, Madhukuchi in the district of Kamrup. The appointment was made by the Inspector of Schools, Kamrup by his order dated 31.03.2001. At the time of making application, the appellant admittedly did not have the requisite qualification for appointment as Assistant Teacher (Graduate Teacher) but having regard to the selection taking place after about four years, she had obtained the requisite qualification in the meantime. It was on this count that she came to be selected by the District Level Selection Board, Kamrup for the post of Assistant Teacher and not as a Hindi Teacher. Consequent upon her joining on 02.04.2001, a verification exercise was initiated by the Inspector of Schools, Kamrup and on 10.08.2001, the appointment order of the appellant was withdrawn. The appellant filed WP(C) 6842/2001 and this Court while admitting the same had stayed the operation of the order dated 10.08.2001. The appellant had the occasion to file a contempt application and during that time she was accommodated as an Assistant Teacher in Modartala Bidyapeeth High School on 28.06.2004. The writ petition i.e. WP (C) 6842/2001 was eventually allowed by order dated 08.02.2007 on ground that the withdrawal of the service of the appellant was in violation of the principles of natural justice. In the year 2004 itself, another writ petition i.e. WP(C) 9199/2004 was filed by a set of persons challenging the appointment of the appellant as Assistant Teacher and also seeking appointments in their favour. In the year 2004 itself, another writ petition i.e. WP(C) 9199/2004 was filed by a set of persons challenging the appointment of the appellant as Assistant Teacher and also seeking appointments in their favour. The said writ petition was disposed of by order dated 15.03.2011 holding that no direction can be made for appointment of the petitioners therein. However, in so far as the appellant is concerned (who was arrayed as respondent no. 4), a direction was made to the Director of Secondary Education, Assam to cause an enquiry on the legality of her appointment as a teacher in Modartala Bidyapeeth High School with further direction that if upon such enquiry it is found that she was undeservedly appointed, necessary steps would be taken to correct the illegality. It was also made clear that no adverse order be passed without affording opportunity of hearing to her. 4. For the purpose of making an enquiry, a Show Cause Notice was issued to the appellant to make explanation as to why her service should not be terminated on ground that she did not possess the requisite qualification at the time of her appointment as an Assistant Teacher. The said Show Cause Notice was put to test in WP(C) 6021/2012. While issuing notice on 13.12.2012, an observation was made by the Court that the pendency of the case will not operate as a bar for the Director of Secondary Education, Assam to issue a supplementary Show Cause Notice and to decide on the alleged disqualification of the appellant. It was also observed that she must be given all opportunity to make representation in support of her contention. A caveat was also expressed that if an adverse conclusion is reached after due process, the same shall not be implemented without the leave of the Court. 5. From the records, the said WP(C) 6021/2012 was eventually withdrawn from file on 08.02.2013. In the meantime and pursuant to the order dated 15.03.2011 passed in WP(C) 9199/2004 an enquiry was initiated and after giving opportunity of hearing to the appellant, an order was passed by the Director of Secondary Education, Assam on 10.04.2013 holding that the appellant had the requisite qualification as on 28.06.2004 when she was accommodated at Modartala Bidyapeeth High School and, as such, her termination is not called for. In the said order dated 10.04.2003 the entire facts were traversed, including the various orders passed by this Court. The Director of Secondary Education, Assam observed that indeed the appellant had acquired the requisite qualification in the year 1998 but on the date of her readjustment at Modartala Bidyapeeth High School on 28.06.2004 she had already acquired the requisite qualification and, therefore, having regard to her date of entry in the said school she cannot be treated as being unqualified. The appellant continued to serve until 10.06.2013 when another order came to be passed under the hand of the Director of Secondary Education, Assam terminating her from service with immediate effect. This order of 10.06.2013 was passed primarily on the observation made by a Division Bench of this Court on 22.04.2013 passed in MC No. 183/2012. The said Miscellaneous Case was a delay condonation petition preferred by the petitioners in the aforesaid WP(C) No. 9199/2004, who had filed writ appeal being aggrieved of the order dated 15.03.2011 passed in the said writ petition. At the stage when the Division Bench passed the order dated 22.04.2013, notices had not been issued to the respondents concerned. The Division Bench took notice of the order dated 10.04.2013 whereby the Director of Secondary Education, Assam had expressed that termination of the appellant was not called for. The Division Bench observed that it was not in dispute that the appellant did not have the qualification. The observation made by the Division Bench was made the foundation of the impugned order dated 10.06.2013 and the appellant was terminated from service. Being aggrieved, the appellant instituted the related writ petition i.e. 4195/2013. On 29.07.2013 this Court had issued notice and in the interim stayed the operation of the order dated 10.06.2013. The said WP(C) 4195/2013 was finally heard and stood dismissed by judgment and order dated 05.04.2016. Aggrieved, the present writ appeal was laid. While admitting the writ appeal on 25.05.2016, an interim order was passed to the extent that if the appellant is working in the concerned school as Assistant Teacher, she be allowed to continue as such. 6. The primary ground in refusing to entertain WP(C) 4195/2013 was that possession of requisite educational qualification is a mandatory requirement. While admitting the writ appeal on 25.05.2016, an interim order was passed to the extent that if the appellant is working in the concerned school as Assistant Teacher, she be allowed to continue as such. 6. The primary ground in refusing to entertain WP(C) 4195/2013 was that possession of requisite educational qualification is a mandatory requirement. In absence of any rule specifying a cut-off date for determining the educational eligibility of a candidate, it would always be the last date fixed for filing application. On the date and year when the Advertisement was issued, the appellant did not have the requisite qualification for appointment as Assistant Teacher (Graduate Teacher). As the appellant was not qualified, the question of affording opportunity of hearing would have been a futile exercise. The learned Single Judge held that if an appointment is illegal, it is non est in law, rendering the appointment a nullity. It was also held that in the fact situation of the case, the invoking of the principles of equity would be improper. 7. Having regard to the facts above, two aspects of the case are essentially to be noticed. First, the appellant have served as an Assistant Teacher on and from 02.04.2001, consequent upon the letter of appointment dated 31.03.2001. A break in service came about on 10.08.2001 when her appointment order was withdrawn but the same having been challenged in WP(C) 6842/2001, the impugned order was stayed by this Court on 01.10.2001. From the records, the appellant had instituted a contempt application alleging violation of the Court order dated 01.10.2001 and during the pendency of the said WP(C) 6842/2001, the appellant was adjusted as an Assistant Teacher at Modartala Bidyapeeth High School by order dated 28.06.2004 of the Inspector of Schools, Kamrup. Secondly, when the appellant had responded to the Advertisement of 1996, she did not misrepresent facts and had vied for the post of Hindi Teacher commensurate to her educational qualification. The selection made by the District Level Selection Board got prolonged, during which time she obtained the requisite qualification making her eligible to be appointed as Assistant Teacher. The decision to appoint her as Assistant Teacher was not of her own making but by a conscious decision of the District Level Selection Board, Kamrup, which fructified in her appointment as an Assistant Teacher by order of the Inspector of Schools, Kamrup, dated 31.03.2001. The decision to appoint her as Assistant Teacher was not of her own making but by a conscious decision of the District Level Selection Board, Kamrup, which fructified in her appointment as an Assistant Teacher by order of the Inspector of Schools, Kamrup, dated 31.03.2001. Without any dispute, despite the apparent illegality in her appointment as an Assistant Teacher, the appellant continued to serve in the same capacity until today, but for the break-in period as indicated above. The question which primarily falls for consideration is whether equity jurisdiction of this Court can be invoked to save her appointment and her continuance in service as Assistant Teacher, having regard to the peculiar facts involved in the case. 8. In Rekha Chaturvedi (Smt.) v. University of Rajasthan and Others, reported in 1993 Supp. (3) SCC 168, a similar situation had arisen on the issue of the requirement of requisite qualification for appointment to the post of Assistant Professor (Lecturer) in the Department of History in the University of Rajasthan. The appointments of the respondents in the said case were put to challenge on ground that they did not have the qualifications as prescribed. The Supreme Court was not inclined to set aside the selections in spite of the apparent illegality, primarily on the ground that almost 8 (eight) years had elapsed from the date when the respondents started working in the respective posts. 9. In Roshni Devi and Others v. State of Haryana and Others, reported in 1998 (8) SCC 59 , a similar direction was made by way of saving the appointments on ground that the persons concerned had served for more than 9 (nine) years from the date of their appointment. A Division Bench of this Court in Adhar Barman and Others v. State of Assam and Others, reported in (2012) 5 GLR 247 took notice of the fact situation of the case where the learned Single Judge had reached a conclusion that although the respondents in the said case were not eligible on the date of the advertisement and had acquired such eligibility before commencement of the selection process, the Court will not find any fault with the appointments so made. The Division Bench affirmed the view of the learned Single Judge and found no reason to interfere with such findings. The Division Bench affirmed the view of the learned Single Judge and found no reason to interfere with such findings. Point to be noted is that in the instant case the Advertisement was issued in the year 1996 and the selection by the District Level Selection Board stood completed after about four years and in the meantime, that is, in the year 1998 the appellant obtained the requisite qualification. It is not brought on record by the respondent State as to when selection by the District Level Selection Committee had commenced, save and except that the selection was completed in the year 2001. Perhaps, the appellant obtained the requisite qualification before commencement of the selection process. Above all, the appellant have virtually continued to serve as an Assistant Teacher from 02.04.2001, which is her date of joining as an Assistant Teacher, pursuant to the order of appointment dated 31.03.2001. A substantial number of years have elapsed and, therefore, it would not be in the fitness of things to uphold the order of termination and to deprive the appellant of her vested right. As alluded to above, her appointment as an Assistant Teacher was not a making of her own choice but a conscious decision taken by the State respondents. The balance of convenience and equity comes in favour of the appellant requiring her appointment to be saved. 10. In view of the above, we are inclined to invoke the equity jurisdiction of this Court and to direct continuance of her service as an Assistant Teacher (Graduate Teacher). As a necessary corollary, the order dated 10.06.2013 of the Director of Secondary Education, Assam terminating her from service as well as the judgment and order passed by the learned Single Judge dated 05.04.2016 in WP(C) 4195/2013 are set aside and quashed. The present writ appeal stands allowed, however, without any order as to cost.