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2019 DIGILAW 316 (GAU)

Harmohan Baishya v. State of Assam

2019-03-07

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. IH Saikia, learned counsel for the petitioner and Mr. N. Sarma, learned Standing Counsel, Secondary Education Department, Government of Assam, representing respondent Nos. 1 to 4. Mr. I Hussain, learned counsel appears on behalf of respondent No. 5. None has appeared for respondent No. 6 though served. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of the decision of the State respondents to re-advertise the post of Principal of Ganesh Mandir Higher Secondary School, Khanapara, Guwahati (School) and further seeks a direction to the respondents to appoint him as Principal of the School in view of his selection. 3. Case of the petitioner is that the School which was earlier provincialized, was upgraded to higher secondary school in the year 1991. Though he was a graduate teacher in the School prior to provincialization and upgradation, in view of his qualification he was appointed as subject teacher in Assamese vide order dated 16.04.1993, issued by the Director of Secondary Education, Assam. Petitioner was granted continuity of past service. 3.1. When the post of Principal of the School fell vacant, being the senior most teacher of the School, he was appointed as In-charge Principal on 08.10.2012. 4. An advertisement dated 19.06.2016 was issued by the Inspector of Schools, Kamrup District Circle to fill up the post of Principal of the School along with other higher secondary schools of Kamrup District Circle. Petitioner offered his candidature for the post of Principal of the School and in the ensuing selection, he was selected and placed at Serial No. 1. Chairman of School Selection Committee forwarded the panel of selected candidates to the Inspector of Schools on 21.11.2016. Petitioner has obtained the comparative select list, forwarding letter and panel of selected candidates by applying under the Right to Information Act, 2005. Despite being placed at Serial No. 1 petitioner was not appointed as regular Principal of the School. He submitted representations thereafter. But instead of considering his representations, Director of Secondary Education vide letter dated 26.07.2017 had directed the Inspector of Schools, Kamrup District Circle to re-advertise the post of Principal of the School. 5. It is in such circumstances that the present writ petition came to be filed. 6. He submitted representations thereafter. But instead of considering his representations, Director of Secondary Education vide letter dated 26.07.2017 had directed the Inspector of Schools, Kamrup District Circle to re-advertise the post of Principal of the School. 5. It is in such circumstances that the present writ petition came to be filed. 6. This Court by order dated 07.08.2017 had issued notice and passed an interim order to the effect that fresh process for the post of Principal of the School should not be started. 7. Director of Secondary Education, Assam in his affidavit has stated that the School had initiated the selection process to fill up the post of Principal. As per school selection record, 22 candidates out of 28 had appeared in the interview and selection was made on the basis of criteria laid down under the relevant rules. The following three candidates were empanelled by the School Selection Committee for the post of Principal:- (1) Sri Harmohan Baishya, Subject Teacher-13.50 marks- 1st position (2) Smt. Tridipa Baruah, Subject Teacher -13 marks - 2nd position (3) Dr. Narayan Das, Assistant Teacher-12.50 marks - 3rd position 8. School Selection Committee vide letter dated 21.11.2016 had submitted a panel list of three candidates for the post of Principal to the Inspector of Schools, who, thereafter, placed the same before the Chairman of the State Selection Board for approval. 9. State Selection Board during scrutiny observed that Member Secretary of the School Selection Committee did not put her signature in the statement of marks of the candidates. On enquiry, Member Secretary, Smt. Joymati Devi, respondent No. 6 informed the Director of Secondary Education that she did not sign the statement of marks. It was under such circumstances that decision was taken to re-advertise the post. 10. In the affidavit filed by respondent No. 5, i.e., School Selection Committee, it is stated that in terms of the advertisement dated 19.06.2016, petitioner was duly selected by the School Selection Committee, placing him at Serial No. 1. All the members of the selection committee including the Member Secretary had signed the comparative list. But at the time of forwarding the record of selection, Member Secretary tore the statement into two pieces. Later on, the two pieces were re-pasted by using adhesive. All the members of the selection committee including the Member Secretary had signed the comparative list. But at the time of forwarding the record of selection, Member Secretary tore the statement into two pieces. Later on, the two pieces were re-pasted by using adhesive. A fresh copy was prepared without signature of the Member Secretary as per advice of the Inspector of Schools but as the Member Secretary refused to forward the same because of her personal grudge against the writ petitioner, it was directly submitted to the Inspector of Schools. 10.1. On the complaint of Member Secretary regarding irregularities in the selection. a meeting took place on 12.07.2017, where only members of the selection committee were present, but the Member Secretary was absent. It is stated that State Selection Board has duly approved the select list prepared by the School Selection Committee. 11. Respondent No. 6 in her affidavit has alleged irregularities in the selection. She has stated that she had objected to the preparation of the panel list and according to her, it was the President of the School Selection Committee who had torn the select list. 12. Submissions made have been considered. Also perused the selection record produced by the School Selection Committee. 13. In the hearing which took place on 23.04.2018, the following order was passed:- "An advertisement for the post of Principal of the Ganesh Mandir Higher Secondary School dated 19.06.2016 was issued. As required under Rule 8(4) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 a selection committee was constituted comprising of one Smti. Joymati Devi, a teacher of Ganesh Mandir Higher Secondary School to be the member secretary of the selection committee. The selection committee proceeded with the selection and accordingly, a statement of marks dated 10.11.2016 was prepared which also contained the signature of the aforesaid Smti. Joymati Devi. It is stated that after signing of the statement, Smti. Joymati Devi disagreed with the selection made for some reason and she had torn two pages of the signed statement of marks. Thereafter, a substituted statement of marks was prepared, but Smti. Joymati Devi had refused to sign it. In the aforesaid circumstances, by the order dated 26.07.2017, the Director of Secondary Education, Assam had issued a direction for a fresh advertisement be issued for, amongst others, the Ganesh Mandir Higher Secondary School. Thereafter, a substituted statement of marks was prepared, but Smti. Joymati Devi had refused to sign it. In the aforesaid circumstances, by the order dated 26.07.2017, the Director of Secondary Education, Assam had issued a direction for a fresh advertisement be issued for, amongst others, the Ganesh Mandir Higher Secondary School. The said communication has been assailed in this writ petition. Mr. N. Sarma, learned standing counsel for the Secondary Education Department seeks to justify the re-advertisement on the ground that complete materials were not produced before the Director enabling him to transmit the same to the State Selection Board for its final approval. From the point of view of the Director, the complete records may not have been sent, but once the statement of marks is prepared and signed by all the members, the same became a public document and Smti. Joymati Devi had no authority to tear it up on her own for whatever reason may be. Such conduct amounts to destruction of public document, which by itself is a penal offence. In view of the above, on the next date fixed, the Director shall inform this Court as to what further action has been taken in the matter and what the Director proposes to do in view of the aforesaid destruction of the public document. It is stated that the Governing Body is still retaining the torn signed statement which is annexed as Annexure-2 at page 15 of the writ petition. The Governing Body shall retain the same in its original and produce it before the Court in a sealed cover on the next date fixed. For taking further action, the Director if finds it necessary may also give hearing to the Governing Body as well as to the aforesaid Smti. Joymati Devi, but the proposed action to be taken/action taken against Smti. Joymati Devi be informed to the Court." 14. Matter was again heard on 20.11.2018, whereafter the following order was passed:- "By the order dated 23.04.2018, the Director of Secondary Education, Assam was required to conduct an enquiry and find out as to whether Smt. Joymati Devi member of the selection committee had torn the statement of marks that was prepared and signed by the members of the selection committee. The said requirement was made on the basis of an allegation made that after the signing of the statement Joymati Devi disagreed with the statement made for the purpose and thereupon torn two pages of the statement of marks. Pursuant to the said order, the Director of Secondary Education, Assam submits report dated 09.11.2018. In the said report, the Director takes note of the statement of Joymati Devi made in course of the enquiry that although she had put her signature on the statement of marks, but she had not torn the comparative statement of marks. In our view merely asking a statement to the person who is alleged to have torn the statement of marks and a denial from that person does not constitute complete enquiry. The Director was required to make an enquiry and find out as to whether Smt. Joymati Devi had torn the statement of marks meaning thereby as a corollary he is also required to arrive at a conclusion that if it was not Smti. Joymati Devi, then who had torn the statement. The report of the Director is short of the aforesaid finding. The report of the Director is further unacceptable in view of the fact that it is the Director who himself had ordered a re-advertisement for the concerned post as because he was of the view that there are some anomalies in the selection process. The Director appears to have taken advantage of the requirement to make an enquiry and in the enquiry report merely reiterate that the selection was not done in the proper manner and therefore, the re-advertisement is justified. The purpose of ordering the enquiry was not to give a further opportunity to the Director to reiterate his earlier stand that there was no anomaly. Accordingly, the report of the Director is concluded to be inadequate and that it does not amount to a complete enquiry. In the circumstance, the Court is of the view that it is necessary to arrive at a conclusion that if a signed statement of marks by all the members of the selection committee which is a public document had been torn, it is also necessary to find out as to who had torn the statement of marks. In the circumstance, the Court is of the view that it is necessary to arrive at a conclusion that if a signed statement of marks by all the members of the selection committee which is a public document had been torn, it is also necessary to find out as to who had torn the statement of marks. Only upon having the relevant materials, which would indicate as to who had torn the singed statement of marks, the matter can be further proceeded to find out as to whether there was any anomaly in the selection process or not. As the Director appears to be a party to the entire proceeding, the Court is of the view that some impartial can only be conducted by an authority which is of unconnected with the Directorate of Secondary Education. While conducting enquiry, the Assistant Commissioner of Police shall also take into consideration the earlier statement made by all concerned in the enquiry made by the Director. It is stated that the original of the torn statement of marks is presently in a sealed cover with the Registry. The Assistant Commissioner may make an application for handing over the said document. The enquiry report submitted by the Director shall remain a part of the record and a copy thereof if necessary may also be provided to the Assistant Commissioner of Police. In the enquiry, the Assistant Commissioner shall also try to find out the reason as to why the original of the statement of marks was torn by whosoever had torn it. It is stated that this matter pertains to the district of Kamrup(M). Accordingly, the Court deems it appropriate that the Assistant Commissioner of Police in charge of Dispur division to conduct an enquiry on the aforesaid question by taking into custody of the original relevant materials on record and arrive at a conclusion as to who may have torn the concerned original statement of marks containing of all the members of the selection committee. The Assistant Commissioner may also include any official in the Directorate of Secondary Education within the purview of the enquiry if it is deemed necessary and appropriate that such person may also have been involved in the incident or may have any pertinent knowledge of the incident." 15. The Assistant Commissioner may also include any official in the Directorate of Secondary Education within the purview of the enquiry if it is deemed necessary and appropriate that such person may also have been involved in the incident or may have any pertinent knowledge of the incident." 15. On 28.02.2019, learned Government Advocate had produced the enquiry report dated 27.02.2019 submitted by Sri Himangshu Das, APS, Assistant Commissioner of Police, East Police District, Guwahati, which was perused. The Enquiry Officer examined as many as 10 persons during the enquiry including the petitioner and respondent No. 6 and recorded their statements. After considering the statements made, Enquiry Officer came to the conclusion that the original of the statement of marks was torn by Smt. Joymati Devi (respondent No. 6) in a well designed conspiracy. Smt. Joymati Devi had issues with the petitioner and she did not want that petitioner should be selected. On the other hand, she wanted her own candidate to be in the first position. 16. Procedure of selection for the post of Principal of higher secondary school is laid down under Rule 13 of the Assam Secondary Education (Provincialized) Service Rules, 2003 (2003 Rules). As per Rule 13 (2). The eligible candidates who had submitted applications for the post are required to be interviewed by the School Selection Committee, whereafter, panel of three candidates is required to be prepared on the basis of such qualities like leadership skills, administrative ability, integrity and commanding personality. School Selection Committee is constituted in terms of Rule 8 (4) of the said 2003 Rules. 16.1. The panel of names so prepared by the School Selection Committee is required to be forwarded to the State Selection Board constituted under Rule 16 of the 2003 Rules through the concerned Inspector of Schools, which shall thereafter prepare the select list equal to the number of vacant posts and make due recommendation to the Government for approval. Upon approval being granted by the Government, appointment letter has to be issued by the Director of Secondary Education, Assam being the appointing authority under Rule 2 (b) (i) of the 2003 Rules. 16.2. From the submissions and other materials on record, what transpires is that in the selection held petitioner was duly selected at Serial No. 1. Upon approval being granted by the Government, appointment letter has to be issued by the Director of Secondary Education, Assam being the appointing authority under Rule 2 (b) (i) of the 2003 Rules. 16.2. From the submissions and other materials on record, what transpires is that in the selection held petitioner was duly selected at Serial No. 1. For purely extraneous considerations, Member Secretary of the School Selection Committee did not forward the panel of selected candidates to the State Selection Board; rather she had torn the original select list which could be repaired by using adhesives. The panel of selected candidates was forwarded by the Chairman of the School Selection Committee. There is no provision in the 2003 Rules that it has to be forwarded by the Member Secretary or that in the absence of forwarding by the Member Secretary or her refusal to sign the proceedings, the State Selection Board would be handicapped in considering such a list. For very many reasons including for such reason as has surfaced in the present case, the Member Secretary may very well decline to sign the proceedings. Can in such a situation, the selection proceedings be held to ransom? The answer to such a question has to be in the negative. Viewed from such a perspective, the response of the Director of Secondary Education who is the Member Secretary of the State Selection Board in calling upon the Inspector of Schools to re-advertise the post in the opinion of the Court was uncalled for and it amounted to failure to carry out the duty assigned to the Director being the Member Secretary of the State Selection Board. 17. Thus, it is evident that what the Member Secretary of the School Selection Committee did was an act of clear misconduct on her part for which she was liable to disciplinary action. However, it is submitted at the Bar that the Member Secretary has since retired from service on attaining the age of superannuation. 17.1. Be that as it may, for the misconduct of the Member Secretary, the candidate who was selected in the selection process should not be made to suffer. It has come on record that petitioner was selected at Serial No. 1. If that be the position, there can be no justifiable reason to deny the benefit of selection to the petitioner. 18. At this stage, Mr. It has come on record that petitioner was selected at Serial No. 1. If that be the position, there can be no justifiable reason to deny the benefit of selection to the petitioner. 18. At this stage, Mr. Saikia, learned counsel for the petitioner submits that the candidates who were selected for the post of Principal in the other schools in terms of the advertisement dated 19.06.2016 have already been appointed in the year 2017 itself. Only the petitioner has been left out. Petitioner has hardly 6-7 months of service left prior to his superannuation. 19. In that view of the matter, Director of Secondary Education, Assam is directed to complete the necessary formalities and thereafter, issue consequential appointment letter to the petitioner as Principal of Ganesh Mandir Higher Secondary School, Khanapara, Guwahati, within a period of 30 (thirty) days from the date of receipt of a certified copy of this order. 20. Original record of selection produced by the School Selection Committee may be returned by the Court Master to Sri I Hussain, learned counsel for respondent No. 5, i.e., the School Selection Committee. 21. Writ petition is allowed, but without any order as to cost(s).