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2018 DIGILAW 39 (GAU)

Md Mahi Uddin S/o Md. Esob Ali v. State of Assam

2018-01-09

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER : Heard Mr. M Dutta, learned counsel for the petitioner. Also heard Mr. N Sarma, learned Standing counsel, Elementary Education Department, Assam. 2. A communication dated 16.12.2005 was issued by the Director of Elementary Education, Assam addressed to all the District Elementary Education Officers along with a sample copy of the advertisement for filing up vacant post of Chowkidar in the Government Lower Primary and Upper Primary Schools. The said communication required the District Elementary Education Officer to advertise the vacancy locally through the Headmaster/Head Pandit of the respective Schools wherein vacant posts of Chowkidar are in existence. 3. The communication further provides that there should be a screening committee with the DEEO as Chairman, Headmaster/Head Pandits of the School-Member-Secretary or equivalent institutions as Member and also the DI of Schools as Member. 4. It further provides that after the interview, the Screening Committee will have to prepare a consolidated list in order of performance with detailed particulars of candidates like postal address, qualifications, experience etc., and the Screening list will contain 5 times the posts notified in the advertisement. 5. It is stated by Mr. N Sarma, learned Standing counsel, Education Department that subsequently, the requirement of 5 times was reduced to 2 times of the post advertised. 6. In the circumstance, an advertisement was issued by the Headmaster of Bhagamur ME Madrassa in the Nagaon District, wherein the petitioner had also offered his candidature along with four other candidates. But, however, on the appointed date for interview the other candidates did not appear and the petitioner was the lone candidate and as per the consolidated statement of interview, the petitioner was considered, while in respect of the other candidates, it was observed that they were absent. Subsequently, the State Level Committee upon considering the recommendations made by the respective selection committees had prepared a consolidated list for the candidates selected for appointment through its memorandum dated 22.12.2014. 7. It is the grievance of the petitioner that although the petitioner had appeared before the Selection Committee but his name does not appear in the list of candidates recommended for appointment in respect of the Nagaon district. 8. Mr. 7. It is the grievance of the petitioner that although the petitioner had appeared before the Selection Committee but his name does not appear in the list of candidates recommended for appointment in respect of the Nagaon district. 8. Mr. N Sarma, learned Standing counsel by referring to the communication dated 16.12.2005 submitted that as the communication requires that the list would contain 5 names, which has subsequently been reduced to 2, therefore, the select list of the petitioner containing only one candidate was found to be unacceptable by the authorities. It is submitted that this is the reason as to why the name of the petitioner did not appear in the list of candidates indicated in the memorandum dated 22.12.2014. 9. Although the communication of 16.12.2005 indicates that the select list would contain 5 times of the post advertised, which was subsequently reduced to 2, but on a reading of the same, it could not be ascertained as to whether the figure 5 or 2 appearing therein is the minimum number to be sent or it is the maximum number. 10. Although, Mr. N Sarma, learned Standing counsel refers to the minutes of the Selection Committee to indicate that the same stipulates the minimum number to be sent, but it is noticed that the same is merely a reflection of the view of the State Level Selection Committee and it cannot be construed that it is a provision of the communication dated 16.12.2005. 11. Be that as it may, without expressing any merit on the said rival contentions, what is noticed is that in respect of some other schools in the Hailakandi district, the authorities have even accepted the recommendation of a single candidate by the Selection Committee and had offered appointment to such single candidate. 12. Mr. M Dutta, learned counsel for the petitioner also refers to another instance of Nagaon district by filing an affidavit dated 15.12.2017, wherein it has been brought on record that one Sadhan Saikia was offered the appointment in Singia Pathari Swahid MV School, although in the selection, Sri Sadhan Saikia was the only recommended candidate as the other participating candidates had absented themselves in the interview. 13. 13. In view of such diverse stand taken by the respondent authorities, where, in one hand, candidature of single candidate in the Hailakandi district and also in respect of one candidate in the Nagaon district have been accepted, whereas in the case of the petitioner, the same was rejected by saying that the petitioner was a lone recommended candidate, this Court is of the view that different procedure have been adopted by the respondent authorities in making the selection and appointment. Whichever stand, the respondent authorities intend to take, this Court without expressing any view, as to which of the stand would be correct, in order to satisfy the requirement of Article 14 of the Constitution of India and in order to make it appear that the selection and appointment was not arbitrarily done, it is incumbent upon the respondent authorities to follow one procedure and cannot take different stand in respect of different schools. 14. The procedure adopted in the present case would be violative of Article 14 of the Constitution of India and would not stand a judicial scrutiny of this Court, in that event. Accordingly, it is provided that the respondent authorities in the State Level Selection Committee shall revisit the candidature of the petitioner for appointment against the post of Chowkidar in Bhagamur ME Madrassa in the Nagaon District by following the procedure which would be consistent as made applicable in respect of all other candidates and arrive at its decision. 15. If there are instances where lone recommended candidates have been appointed, in such event, the State Level Selection Committee shall give its reason as to why it intends to deviate in the case of the petitioner and such reason must satisfy the requirements of Article 14 of the Constitution of India. 16. The aforesaid exercise be carried out within a period of 3(three) months from the date of receipt of a certified copy of this order. 17. In the event, upon consideration, the decision goes in favour of the petitioner, consequential actions should follow thereafter. 18. In terms of the above, this writ petition stands disposed of.