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2018 DIGILAW 397 (GAU)

State of Assam v. Farman Ali (Md. )

2018-03-06

UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Ms. P. Chakraborty, learned counsel for the review petitioners. State of Assam in the Secondary Education Department and Director of Secretary Education, Assam are the review petitioners. This petition seeks review of judgment and order dated 19.12.2014 passed by the writ Court in WP(C) No. 2525/2012 allowing the writ petition filed by the respondent 2. Related writ petition was filed for quashing of order dated 21.05.2012 passed by the Inspector of Schools, Nalbari District Circle terminating the service of the respondent as Assistant Teacher and for a direction to the review petitioners to continue his service as Assistant Teacher. 3. Grievance of the respondent (writ petitioner) was summed up by the writ Court in the following manner:- "5. An advertisement was issued by the Education Department, Govt. of Assam on 03.09.1991 for filing up of about 200 vacancies in the post of Assistant Teacher in provincialised higher secondary schools of the State. Petitioner applied pursuant to the said advertisement and participated in the selection. Select list was prepared legislative assembly constituency wise and in respect of Barkhetri constituency in the district of Nalbari which concerns the petitioner, the select list was published on 04.01.1995. Petitioner was selected and was placed at Sl. No. 13 in the said select list. 6. Inspite of his selection, petitioner was not appointed though all the candidates placed above him in the said select list were appointed and even some candidates placed below the petitioner in the select list were appointed. At this stage, petitioner approached this Court by filing Civil Rule No. 1474/1996 which was heard alongwith other similar cases. This Court by the common judgment and order dated 2.8.1997 disposed of the said writ petition alongwith other connected cases by directing the Commissioner and Secretary to the Government of Assam, Education Department and the Director of Secondary Education, Assam to cancel the appointments of persons outside the select list as well as the appointments of all those persons who were not entitled to appointment on the basis of their merit position in the select list and in their place to offer appointment to the persons who were entitled to appointment as per their merit position in the select list. 7. 7. Petitioner was appointed as Assistant Teacher in the Raghu Nath Choudhury Higher Secondary School vide order dated 31.10.1998 issued by the respondent No. 3 pursuant to which he joined on 03.11.1998. Following the above judgment, Government of Assam passed an order dated 28.12.1998 finalising a list of deserving candidates entitled to appointment which included the petitioner in respect of Barkhetri constituency. Thereafter, the service of the petitioner was adjusted against a non-plan vacant post vide order dated 10.03.1999. Since his joining on 03.11.1998, petitioner rendered service as Assistant Teacher without any break. His service book has been opened and his GPF contribution is regularly deducted from his salary. 8. Long thereafter on 18.05.2012, respondent No. 3 issued show-cause notice to the petitioner calling upon him to show-cause as to why his service should not be terminated. It was alleged that petitioner received appointment during 1998 on the basis of a purported select list which had been declared as not genuine. It was stated that the High Court in WP(C) No. 3949/2001 had doubted the validity of the select list. Therefore, his appointment was treated not only as irregular but also as illegal. Ten days time was granted to the petitioner to submit his show-cause reply. However, without waiting for the petitioner's reply or expiry of the show-cause period of 10 (ten) days, respondent No. 3 passed the impugned order dated 21.05.2012 terminating the petitioner's service forthwith. It was stated that the show-cause notice was cancelled. It was further stated that petitioner was appointed on the basis of a purported select list relating to Barkhetri constituency of Nalbari district which had been declared doubtful in the High Court's order dated 20.03.2007 in WP (C) No. 3949/2001. 9. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above." 4. Writ petition was contested by the Director of Secondary Education, Assam by filing affidavit. After hearing the matter at length, writ Court allowed the writ petition vide judgment and order dated 19.12.2014 by holding as under:- "19. As already noticed above, an advertisement was issued on 03.09.1991 for filling up about 200 vacancies in the post of Assistant Teacher in different provincialised higher secondary schools of the State. Following the selection held, select lists were published legislative assembly constituency wise on 04.01.1995. As already noticed above, an advertisement was issued on 03.09.1991 for filling up about 200 vacancies in the post of Assistant Teacher in different provincialised higher secondary schools of the State. Following the selection held, select lists were published legislative assembly constituency wise on 04.01.1995. In the select list of Barkhetri constituency dated 04.01.1995, petitioner was selected and was placed at Sl. No. 13 of the select list. When he was not appointed, petitioner approached this Court by filing Civil Rule No. 1474/1996 complaining that persons who were above him in select list as well as those below him in the select list dated 04.01.1995 were appointed. Civil Rule No. 1474/19% was heard alongwith a number of other connected cases which were all disposed of vide the common judgment and order dated 02.08.1997. All the writ petitions pertained to the five constituencies of Nalbari district including Barkhetri constituency. In respect of Barkhetri constituency, Sri J.P. Prakash, the then Commissioner and Secretary to the Government of Assam, Education Department in his affidavit filed on 1.7.1997 stated that he had passed an order dated 20.11.1996 mentioning that certain persons who were not entitled to be appointed were appointed whereas other persons who were entitled to be appointed were not appointed. Relevant portion of the common judgment and order dated 02.08.1997 dealing with the stand of the departmental Commissioner and Secretary relating to Barkhetri constituency reads as under:- "4. .................In the order dated 20th November, 1996, for Barkhetri constituency (Annexure-L) it has been mentioned that 17 persons have been appointed who were not entitled to be appointed as per their position of merit in the select list, namely, Alimuddin Ahmed, Tapan Sarma, Sahnur Ali, Prasanta Deka, Reena Deka, Kohinur Begum, Ramizuddin Sarkar, Dibakar Talukdar, Dilip Talukdar, Abdul Razzak, Bhabani Barua, Rubia Begum, Samsul Haque Choudhury, Baktoza Ahmed, Premananda Misra, Rabiul Haque and Inam Ali. It has been further stated in the said order (Annexure-L) that the following candidates were entitled to be appointed as per their position of merit in the select list and the provisions of law for reservation:- Sl. No. Name Roster Point Position in select list Roll No. 1. Bipul Bora STP 42 3275 2. Surya Roy OBC 19 841 3. Binapani Das SC 26 3039 4. Ajit Kr. Sarma UR 1 36 5. Anchar Ali UR 2 4564 6. Islamuddin Ahmed UR 3 3026 7. Vacant STH 8. No. Name Roster Point Position in select list Roll No. 1. Bipul Bora STP 42 3275 2. Surya Roy OBC 19 841 3. Binapani Das SC 26 3039 4. Ajit Kr. Sarma UR 1 36 5. Anchar Ali UR 2 4564 6. Islamuddin Ahmed UR 3 3026 7. Vacant STH 8. Bhupati Das OBC 20 365 9. Abu Bakkar Siddique UR 4 407 10. Ganesh Kalita UR 5 404 11. Vacant 12. Dilip Baishya SC 38 1921 13. Uday Barman UR 6 2017 14. Alakesh Ali UR 7 1291 15. Fakiruddin Ali Ahmed OBC 29 312 16. Basistha Deka UR 8 4036 17. Faizur Rahman UR 9 4839 18. Kanak Boro UR 10 3220 19. Anawara Choudhury UR 11 2008 20. Madhab deka UR 12 1134 21. Vacant STP 22. Dilip Das OBC 54 2005 23. Pradip Baishya SC 48 4596 24. Farman Ali UR 13 1138 25. Kamal Das UR 14 3513 26. Chandra Kt. Baishya UR 15 341 27. Vacant STH 28. Biraj Bikash Das OBC 56 3001 Thus, petitioner at serial No. 24 was found entitled to be appointed as per his merit position by the departmental Commissioner and Secretary, which was noted by this Court. 20. In the light of the stand taken by the department, this Court finally directed the departmental authorities to give effect to the order dated 20.11.1996 by cancelling the appointments of persons who were not entitled to appointment and thereafter in their place to offer appointment to the persons who were entitled to appointment. Relevant portion of the final direction of this Court are as under:- "9. Relevant portion of the final direction of this Court are as under:- "9. For the reasons stated above, 1 dispose of this batch of writ petitions with a direction that the Commissioner & Secretary to the Government of Assam, Education Department, and the Director of Secondary Education, Assam, shall within two months from today give effect to the orders dated 18th, 19th and 20th November, 1996 (Annexures 'F & 'G' to the affidavit-in-opposition and Annexures- 'K', 'L' & 'M' to the further affidavit) relating to Dharmapur, Nalbari, Barama, Barkhetri and Patacharkuchi constituencies of Nalbari District, cancelling the appointments of persons outside the select lists as well as the appointments of all those persons who were not entitled to appointment on the basis of their position of merit in the select lists and as per the provisions of law for reservation, and in their place offer appointment to the candidates who were entitled to appointment as per their position of merit in the select lists and as per the provisions of law for reservation. It is made clear that in case any of the candidates to whom an offer of appointment is made does not turn up for appointment within one month of service of such appointment letter, the offer of appointment shall be made to the next person in order of merit in the select list and as per provisions of law for reservation. A person aggrieved by the said orders dated 18th, 19th and 20th November, 1996, including a person whose appointment is cancelled may make his submission before the Commissioner & Secretary to the Government of Assam, Education Department, as mentioned in the said orders. I further direct that all ad hoc appointments existing as on date shall forthwith be terminated by "the State-respondents. I further direct that all ad hoc appointments existing as on date shall forthwith be terminated by "the State-respondents. Affidavits will be filed in this Court by the Commissioner & Secretary to the Government of Assam, Education Department, and the Director of Secondary Education, Assam, that the aforesaid directions of this Court with regard to cancellation of appointments of all persons outside the select lists and persons who were not entitled to appointment as per their position of merit in the select lists and as per provisions of law for reservation and with regard to offer of appointment to the persons entitled to appointment as per their position of merit in the select lists and as per provisions of law for reservation, have been complied with. Affidavits will also be filed by the said Commissioner & Secretary and the Director to the effect that the aforesaid direction with regard to termination of ad hoc appointments has been complied with. The affidavits will be filed within two months from today. 10. With the aforesaid observations and directions, the writ petitions are allowed to the extent indicated above. However, considering the entire facts and circumstances of the case, I leave the parties to bear their own costs." 21. Thus, petitioner was found entitled to be appointed by the departmental Commissioner and Secretary vide his order dated 20.11.1996 which was accepted by this Court and directed to be given effect to vide the above judgment. From the documents placed on record, it appears that following the aforesaid judgment dated 02.08.1997 respondent No. 3 appointed the petitioner temporarily as Assistant Teacher in the Raghu Nath Choudhury Higher Secondary School vide order dated 31.10.1998. 22. Secretary to the Government of Assam, Education (Elementary and Secondary) Department thereafter passed an order dated 26.12.1998 in terms of the directions contained in the judgment and order dated 02.08.1997. It was stated that select list for Barkhetri constituency of Nalbari district which was prepared and published on 04.01.1995 remained valid till 3.1.1996. 45 persons were appointed in Barkhetri constituency, out of them 17 were from outside the select list dated 04.01.1995 whereas another 17 were illegally appointed as their merit position did not justify their appointment. It was stated that select list for Barkhetri constituency of Nalbari district which was prepared and published on 04.01.1995 remained valid till 3.1.1996. 45 persons were appointed in Barkhetri constituency, out of them 17 were from outside the select list dated 04.01.1995 whereas another 17 were illegally appointed as their merit position did not justify their appointment. Accordingly, appointments of those 34 teachers were cancelled and against their vacancies, fresh appointments were directed to be made on the basis of the merit position in the select list as well as on the basis of reservation principle. Petitioner was appointed (as un-reserved candidate having roll No. 1138 and placed at 13th position in the select list) against the vacancy which accrued on termination of service of one Mukshed Ali, who was found to be illegally appointed. This was followed by the consequential order dated 10.03.1999 issued by the respondent No. 3. 23. What has led to the confusion is that another advertisement was issued in December, 1996 for filling up certain vacancies in the post of Assistant Teacher. Selection process was undertaken thereafter, pursuant to which select list was prepared in the year 2008. Petitioner's name figured in the said select list of 2008 as well. WP(C) No. 3949/2001 was filed by one Sri Dilip Deka and three others alleging that in the selection held, they were selected but instead of appointing them, persons placed below them in the select list relating to Barkhetri constituency were appointed; respondent Nos. 5 to 18 in that proceeding were the beneficiaries of such appointment which included the petitioner as respondent No. 17. One select list was annexed to the writ petition. During the proceedings of WP(C) No. 3949/2001, a photocopy of a select list in respect of Barkhetri constituency was produced before the Court. On a comparison between the two select lists, one annexed to the writ petition and the other produced before the Court, it was found that while the persons at Sl. Nos. 27 to 39 were common in both the lists, the persons at Sl. Nos. 1 to 26 differed in the two lists. On perusal of the appointment order(s) of the persons from Sl. Nos. 1 to 39 it was found that all the appointment order(s) were issued in the months of September and October, 1998. Nos. 27 to 39 were common in both the lists, the persons at Sl. Nos. 1 to 26 differed in the two lists. On perusal of the appointment order(s) of the persons from Sl. Nos. 1 to 39 it was found that all the appointment order(s) were issued in the months of September and October, 1998. On the other hand, it was found that the select list which was produced before the Court had a date which appeared to be either 31.12.1998 or 31.12.1999. Therefore, the Court observed that the appointments could not have been made on the basis of the said select list since the appointments were prior in point of time. Selection process in so far Barkhetri constituency was concerned was held to be illegal. Writ petition was dismissed. Since police investigation was on, direction was issued to bring it to its logical conclusion. Departmental authorities were given liberty to take steps on the erring officials as well as on the fate of the illegal appointees. In appeal, the Division Bench noted that appointments were made from both the lists of 1998 and the stand of the department was that both the lists were illegal. Police investigation was monitored with further direction to the departmental authorities to cancel the illegal appointments. It was in this background and the subsequent order (s) passed by the Division Bench which led to passing of the impugned order dated 21.05.2012. 24. At this stage, it may be noted that the proceedings in WP(C) No. 3949/2001 and the related Writ Appeal No. 423/2007 were in respect of the selection held pursuant to the advertisement issued in December, 1996. The selection was concluded by issuance of select list in the year 1998. It was found that there were two select lists of 1998, though certain names were common. The Writ Court expressed doubts about the genuineness of the select lists and declined to interfere. In writ appeal the stand of the department was that both the select lists of 1998 were illegal. The Division Bench therefore directed the department to cancel the illegal appointments. Accordingly, the appointments have been cancelled. The Writ Court expressed doubts about the genuineness of the select lists and declined to interfere. In writ appeal the stand of the department was that both the select lists of 1998 were illegal. The Division Bench therefore directed the department to cancel the illegal appointments. Accordingly, the appointments have been cancelled. As noticed above, the entire adjudication was confined to the select list of 1998 where the name of the petitioner appeared But as it appears, petitioner's appointment is relatable to his selection as per the select list dated 04.01.1995 which was issued pursuant to the advertisement dated 03.09.1991 and following the direction of this Court contained in the common judgment and order dated 02.08.1997. The confusion has arisen because of the petitioner's participation and selection in the subsequent selection process which has been found to be illegal. A communication of respondent No. 3 dated 05.04.2013 addressed to the respondent No. 2 has been placed on record by the petitioner as Annexure-E to Misc. Case No. 1293/2013 filed by the petitioner for stay of the impugned order. In his letter dated 05.04.2013, respondent No. 3 has clarified that petitioner was selected in 1995 but he was not appointed. He filed a case in the High Court which was disposed of in 1997. On the basis of the High Court order, he was appointed in 1998 as per select list of 1995. He joined service on 31.10.1998 and continued till his termination. In the meanwhile, he also appeared in the interview held pursuant to the advertisement issued in 1996 and got selected in 1998. Thus he was selected in both the select lists but he was appointed on the basis of the 1995 select list. Respondent No. 3 has categorically stated that petitioner was not appointed on the basis of the 1998 select list. He was appointed against a regular vacant post which had permanent retention on the basis of his selection vide the select list dated 04.01.1995. 25. Respondent No. 2 in his affidavit has in a way blamed the petitioner as he did not report to the authority at the appropriate time that his name appeared in the 1998 select list also in addition to his selection on 04.01.1995. 26. 25. Respondent No. 2 in his affidavit has in a way blamed the petitioner as he did not report to the authority at the appropriate time that his name appeared in the 1998 select list also in addition to his selection on 04.01.1995. 26. From what has been discussed above, a reasonable conclusion can be reached that case of the petitioner is different from the other candidates whose names were reflected in the select list of 1998. Petitioner's appointment is rentable to the select list dated 04.01.1995 and is fortified by the order of the then departmental Commissioner and Secretary dated 20.11.1996. Petitioner was appointed on the basis of the directions issued by this Court in the judgment and order dated 02.08.1997. Therefore, case of the petitioner stands on a different footing. In such circumstances, petitioner cannot be termed either as illegal appointee or even as irregular appointee. 27. Though petitioner was arrayed as a respondent (respondent No. 17) in WP(C) No. 3949/2001 and WA No. 423/2007 (respondent No. 17), learned Sr. Counsel appearing for the petitioner submitted that petitioner did not receive notice in both the proceedings and, therefore, he was unable to present his version before the Court. Statements to that effect have been made in paragraph 7 of the writ petition. Petitioner also could not present his case before the departmental authorities because before he could submit his reply to the show-cause notice dated 18.05.2012, the same was cancelled by the respondent No. 3 vide order dated 21.5.12 by which order his service was also terminated. Had an opportunity to show-cause or of hearing been granted to the petitioner he would have certainly presented his case. But that opportunity was not granted to the petitioner. Even otherwise, after rendering service for more than 14 years, service of the petitioner could not have been terminated without atleast putting him on notice. Accordingly and in view of the above discussions, impugned order dated 21.05.2012 cannot be sustained and is accordingly set aside and quashed. 28. Petitioner shall now be taken back in service and shall be deemed to have been in service all throughout, entitling him to all consequential benefits on re-instatement. 29. Writ petition is accordingly allowed but without any order as to cost." 5. On a query by the Court as to why the review petitioners have not filed appeal and instead have filed review petition, Ms. 29. Writ petition is accordingly allowed but without any order as to cost." 5. On a query by the Court as to why the review petitioners have not filed appeal and instead have filed review petition, Ms. Chakraborty, learned counsel for the review petitioners, submits that review petitioners are on principle not aggrieved with the decision per se of the writ Court. The grievance of the review petitioners pertain to direction of the writ Court that petitioner would be deemed to have been in service all throughout entitling him to all consequential benefits on reinstatement which would involve payment of arrear salary for the period for which petitioner did not render service. This contention is sought to be supported by invoking the principle of 'no work no pay'. 6. I am afraid; such contention of the review petitioners can be entertained. Firstly, this review petition has been filed on 31.03.2017 almost 3 years after the judgment was rendered. Secondly, when the review petitioners are not aggrieved by the judgment in principle, we fail to understand the rationale behind questioning the direction of the writ Court that petitioner would be deemed to be in service all throughout entitling him to consequential benefits on reinstatement. When the termination order was found to be illegal and petitioner was directed to be reinstated in service, declaration that petitioner would be entitled to all benefits is a consequential direction. Principle of 'no work no pay' would have no application in a case of this nature. Petitioner did not keep away from work on his own volition; rather he was forcibly kept away from his work because of the termination order issued by the review petitioners which was found to be illegal by the writ Court and thereby interdicted. Denial of back wages or arrear salary in such a case would amount to indirectly punishing the employee who suffered for the illegal act of the employer. (Please see Dipali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 ). 7. No case for review is made out. For the aforesaid reasons, we are not inclined to entertain this review petition, which is accordingly dismissed.