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2019 DIGILAW 334 (GAU)

Durlav Baruah v. State of Assam

2019-03-12

UJJAL BHUYAN

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ORDER : UJJAL BHUYAN, J. 1. Heard Mr. A. Baruah, learned counsel for the petitioner; Mr. N. Sharma, learned Standing Counsel, Secondary Education Department, Govt. of Assam; Mr. A.K. Bhuyan, learned Standing Counsel, Bodoland Territorial Council (BTC); and Mr. A. Narzari, learned counsel for respondent No. 5. 2. Matter relates to appointment to the post of Principal in the Kalaigaon Higher Secondary School (School) in the district of Udalguri. Assam Secondary Education (Provincialised) Service Rules, 2003 (2003 Rules) govern recruitment to the post of Principal in Higher Secondary or Higher Secondary and Multipurpose Schools. While Rule 12 lays down the qualification for such appointment, procedure of selection is laid down in Rule 13. As per Rule 13 (2), selection is through interview in which candidates are selected on the basis of qualities, such as, leadership skills, administrative ability, integrity and commanding personality. As per Rule 13 (5), select list prepared and approved shall be in force for one year from the date of approval by the Government. 3. To give effect to the provisions of the aforesaid 2003 Rules, particularly, in respect of selection of Principal, guidelines have been laid down by the Government of Assam in the Secondary Education Department vide office memorandum dated 06.06.2014 followed by office memorandum dated 23.6.2017. As per office memorandum dated 23.6.2017, award of marks under different headings shall be for a total of 30 marks, breakup of which is as under:- Leadership skill 4 Administrative ability 3 Integrity and commanding personality 2 Academic career 15 Experience 6 Total 30 How the marks are to be awarded under the aforesaid headings are provided in the office memorandum dated 23.06.2017. 4. From the above, it is evident that the post of Principal is selection based and selection is on the basis of merit, i.e., marks obtained in the interview from amongst candidates who come within the zone of consideration in terms of Rule 12. 5. Adverting to the facts of the present case, it appears that an advertisement was issued by the Director of Education, BTC on 09.08.2016 for the post in question along with the post of Principal in other Higher Secondary Schools. Petitioner as well as respondent No. 5 had responded to such advertisement and had participated in the selection. Following the selection, select list was published on 29.04.2017. Petitioner as well as respondent No. 5 had responded to such advertisement and had participated in the selection. Following the selection, select list was published on 29.04.2017. Be it stated that BTC Level Selection Committee in its meeting held on 29.04.2017 had adopted a resolution to have a waiting list wherefrom appointment would be made in the event vacancies occurred till April, 2018. In so far Kalaigaon Higher Secondary School (School) is concerned, one Shri Dibakar Baishya was selected pursuant to which he was appointed vide order dated 13.06.2017 issued by the Director of Education, BTC. Be it stated that respondent No. 5 was placed at Serial No. 1 in the waiting list against the School. Date of superannuation of Shri Dibakar Baishya was 31.01.2018. On the eve of his superannuation, order dated 19.01.2018 was issued by the Director of Education, BTC appointing respondent No. 5 as the Principal of the School effective from 31.01.2018 following superannuation of Shri Dibakar Baishya. It is this order which is under challenge in the present proceeding. Following notice issued by this Court, parties have exchanged affidavits. Submissions made by learned counsel for the parties have been considered. 6. Short point for consideration is whether appointment of respondent No. 5 as Principal of the School on 19.01.2018 on the basis of his selection as a wait listed candidate in the select list dated 29.04.2017 would be a valid appointment? Law on this point is well-settled and may not require much deliberation. Once a selected candidate is appointed in the post advertised and for which the select list was prepared, purpose of the select list is over and the select list would stand exhausted. Thereafter, it would not be open for the authority to fall back upon the said select list to fill up the subsequent vacancies which may occur post-selection. In the instant case, Shri Dibakar Baishya was selected for the post of Principal of the School. Upon his selection, he was appointed. The moment Shri Dibakar Baishya was appointed, purpose of the select list vis-à-vis the School was fulfilled and the said select list got exhausted. The anticipated vacancy on superannuation of Shri Dibakar Baishya w.e.f. 31.01.2018 was never advertised. In so far a candidate placed in the waiting list is concerned, Supreme Court in the case of Surinder Singh Vs. The moment Shri Dibakar Baishya was appointed, purpose of the select list vis-à-vis the School was fulfilled and the said select list got exhausted. The anticipated vacancy on superannuation of Shri Dibakar Baishya w.e.f. 31.01.2018 was never advertised. In so far a candidate placed in the waiting list is concerned, Supreme Court in the case of Surinder Singh Vs. State of Punjab, (1997) 8 SCC 488 , had succinctly summed up the position that candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative Awaiting list prepared in an examination does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency, Government may as a matter of policy decision pick up persons in order of merit from the waiting list. A candidate in the waiting list in order of merit has a right to claim that he may be appointed if one or the other selected candidate does not join. However, a waiting list cannot be used as a perennial source of recruitment filling up the vacancies not advertised. 7. Reverting back to the selection in question, as already noticed, it is a merit based selection. Candidates who come within the zone of consideration by having eligibility under Rule 12, their cases will be considered and selection made on the basis of merit by following the laid down criteria. After selection and appointment of Shri Dibakar Baishya as Principal of the School, many candidates may have attained eligibility in the meanwhile in terms of Rule 12. To exclude them from consideration by falling back on a select list which was acted upon and which got exhausted, besides being legally unsustainable, would also be unfair and arbitrary. It is, therefore, necessary that the post of Principal of the School which had fallen vacant following superannuation of Shri Dibakar Baishya is required to be filled up following a fresh selection process. It is, therefore, necessary that the post of Principal of the School which had fallen vacant following superannuation of Shri Dibakar Baishya is required to be filled up following a fresh selection process. Respondent No. 5 who was appointed as Principal of the School on an erroneous understanding of the legal position may be continued as the in-charge Principal of the School i.e., on temporary basis during the interregnum till regular appointment is made following fresh selection. Certainly he as well as petitioner would also be eligible to appear in such selection process. 8. Let the fresh selection be conducted within a period of four months from the date of receipt of a certified copy of this order. Ordered accordingly. Writ petition is disposed of.