Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 965 (GAU)

Nabajyoti Barman v. Abdul Hamid Miah

2019-08-29

A.K.GOSWAMI, SANJAY KUMAR MEDHI

body2019
JUDGMENT : A.K. Goswami, J. 1. Heard Mr. P. Mahanta, learned counsel for the appellant. Also heard Mr. K.N. Choudhury, learned senior counsel, appearing for the respondent No. 1 and Mr. S.K. Ghosh, learned standing counsel, Education (Secondary) Department, appearing for the respondent Nos. 2, 3 and 4. Despite service of notice, the respondent Nos. 5 and 6 have not entered appearance. 2. This intra-Court appeal is directed against the judgment and order dated 28.03.2019 passed by the learned Single Judge in WP (C) No. 2784/2017, allowing the said writ petition filed by the writ petitioner (respondent No. 1 herein) and setting aside the appointment of the respondent No. 5 (appellant herein) as regular Principal of Salkocha Higher Secondary School. 3. For the sake of convenience, during the course of this judgment, the respondent No. 1 herein will be referred to as the writ petitioner and the respondent No. 5 in the writ petition as the appellant. 4. When the post of Principal in Salkocha Higher Secondary School had fallen vacant, by an order dated 04.02.2013, passed by the Director of Secondary Education, Assam, the respondent No. 1 was placed as In-charge Principal of the said school in question by way of temporary arrangement. An advertisement dated 18.06.2016 was published inviting applications for filling up of the posts of Principal of 10(ten) schools including Salkocha Higher Secondary School. The appellant was also a Subject Teacher in the said school at that relevant point of time when the advertisement was issued. Pursuant to the said advertisement, the appellant, respondent No. 1 and some others had applied for the said post. The interview was held on 09.12.2016. The procedure for selection is governed by the Assam Secondary Education (Provincialised) Service Rules, 2003, as amended in 2012, (for short ‘2003 Rules’). 5. Rule 13(2) of the 2003 Rules provides that after holding an interview, the School Selection Committee (SSC) is to prepare a panel of names of 3(three) candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality. Rule 13(3) provides that the panel of names, prepared by the SSC, shall be forwarded to the State Selection Board for approval through the jurisdictional Inspector of Schools and the State Selection Board thereafter, shall forward the recommended select list to the Government for approval and for consequent order of appointment. Rule 13(3) provides that the panel of names, prepared by the SSC, shall be forwarded to the State Selection Board for approval through the jurisdictional Inspector of Schools and the State Selection Board thereafter, shall forward the recommended select list to the Government for approval and for consequent order of appointment. The SSC is to be constituted in terms of Rules 8(3) and 16 of the 2003 Rules. It comprises of the President of the Managing Committee as the Chairman with 2(two) Members - (i) Vice Principal/a Post-Graduate Teacher and (ii) one parent to be nominated by the Managing Committee. The Member Secretary is the Principal of the school. The Chairman of the State Selection Committee is the Commissioner and Secretary to the Government of Assam and the Member Secretary is the Director of Secondary Education. 1(one) reputed educationalist, either an officer of the Assam Education Service or Principal of a Higher Secondary School is to be nominated by the Government as a Member. 6. An Office Memorandum dated 06.06.2014 was issued by the Secretary to the Government of Assam, Secondary Education Department on the subject of Guidelines for selection of Principals in Provincialised Higher Secondary School. The Office Memorandum dated 06.06.2014 bodily incorporates relevant Rules from the 2003 Rules. 7. The Director of Secondary Education, Assam had issued an Office Order dated 15.06.2016 providing that when the In-Charge Principal of a School is himself a candidate for the post of Principal, the In-Charge Principal will not act as the Member Secretary of the SSC and the Inspector of Schools will notify a Post-Graduate Teacher having Master Degree with B.Ed. or the senior-most Graduate Teacher having Master Degree with B.Ed. and where there is no Graduate Teacher having Master Degree with B.Ed. a senior teacher having Master Degree to act as the Member Secretary of the SSC. 8. An Office Order dated 23.06.2016 was issued by the Director, Secondary Education Department providing how the SSC is to award marks in the interview. Though the same had been extracted by the learned Single Judge, the same is reproduced herein also for convenient understanding:- 1. Leadership skills 5 Marks 2. Administrative Ability 5 Marks 3. Integrity and ACR 5 Marks 9. Though the same had been extracted by the learned Single Judge, the same is reproduced herein also for convenient understanding:- 1. Leadership skills 5 Marks 2. Administrative Ability 5 Marks 3. Integrity and ACR 5 Marks 9. The parameters based on which 5 marks in respect of each of the above are to be awarded had been indicated, having regard to the dispute which is in respect of "Integrity and ACR" the parameters in respect of the same only are extracted herein below:- "Based on the facts 1. Whether the candidate was punished by Appointing Authority during last 5 years. 2. Whether any Departmental Proceedings is pending against the Government servant at the level of Inspector of Schools or Director of Secondary Education. A self declaration may be obtained. 3. ACR of last 3 years by Inspector of School." For Excellent and Outstanding 3 Marks For Very Good 2 Marks For Good 1 Marks 10. The writ petitioner appeared in the interview on 09.12.2016 and it is pleaded that to his surprise, he found the respondent No. 6 acting as Member Secretary, though he was not eligible to be appointed as Member Secretary in view of the order dated 15.06.2016 as he did not have the B.Ed. qualification. After the interview was over, he came across an order dated 15.06.2016, whereby the respondent No. 6 was appointed as the Member Secretary by the Inspector of Schools. Subsequently, having come to learn from a reliable source that his name finds place at serial No. 2 of the panel prepared by the SSC, he filed a complaint dated 09.01.2017 before the Director of Secondary Education. However, the State respondents had issued the order of appointment dated 02.05.2017 appointing the present appellant as the Principal of the said school. The writ petitioner further pleaded that he had, on an enquiry being made by him, come to learn that the appellant had submitted the Annual Confidential Report (ACR) for the period of 01.01.2015 to 31.12.2015, though ACRs for the last 3(three) years were required to be considered. It is also pleaded that he came to learn that the following marks had been given to him and the appellant (respondent No. 5). 11. It is also pleaded that he came to learn that the following marks had been given to him and the appellant (respondent No. 5). 11. It is pleaded by the writ petitioner that as he was not imposed any punishment in the last 5(five) years and as no departmental proceeding was pending against him, he was entitled to 2 additional marks in respect of "Integrity" and, therefore, considering his grading in the last ACRs of 3(three) years, he was entitled to 4 marks instead of 2, which was awarded and therefore, on the face of it, there being total non-application of mind on the part of the SSC, selection process is vitiated. 12. The appellant in the affidavit-in-opposition, amongst others, had stated that initially a lady teacher of the school possessing B.Ed. Degree was entrusted with the duty to perform the Member Secretary of the SSC but she had declined to accept the duty entrusted as she was in advance stage of pregnancy and the writ petitioner himself had recommended the name of the respondent No. 6 for being the Member Secretary. As the In-charge Principal of the school, the writ petitioner was responsible for writing the ACRs. As the selection was made on the basis of objective satisfaction of the SSC, in absence of any allegation of malafide or arbitrariness, no interference is called for. It is also pleaded that the appellant would also have been entitled to 2(two) additional marks as he was not punished at any point of time and no departmental proceeding was pending against him. The writ petitioner having not challenged the constitution of the SSC at the earliest opportunity, he is estopped from challenging the constitution of the SSC. 13. A reply affidavit was filed by the respondent No. 1/writ petitioner stating that he did not recommend the name of the respondent No. 6 to be the Member Secretary of the SSC and he was under the bonafide belief that the State respondents will replace the respondent No. 6 as he did not fulfil the eligibility criteria for being a Member Secretary. 14. 14. The learned Single Judge, taking note of the order dated 23.06.2016 indicating how to award marks, concluded that the application of the appellant/ respondent No. 5 being incomplete, it ought not to have been considered by the SSC and that since the responsibility of furnishing the original last 3(three) ACRs rested with the Inspector of Schools, the appellant/respondent No. 5 ought not to be penalised for non-production of ACRs of the last 3(three) years. However, since the ACRs of last 3(three) years before the SSC in respect of appellant/respondent No. 5 was not available, the selection process and the final selection cannot be sustained in law and accordingly, directed a review selection process in terms of the advertisement dated 18.06.2018 within a period of 3(three) months. It was also noted that no marks had been awarded to the writ petitioner in respect of the component "Integrity". As on the component of ACR, maximum 3 out of 5 can be allotted, remaining 2 marks would have to be allotted under the heading "Integrity" on the basis of the guidelines. 15. Mr. Mahanta, learned counsel for the appellant submits that it was the responsibility of the writ petitioner to have initiated the ACRs of the appellant as a Reporting Officer and as it transpires now, with an oblique motive, the same was not done by the writ petitioner only in respect of the appellant and, therefore, he cannot be permitted to take a stand that in absence of 3(three) ACRs, the SSC committed an error in accepting the candidature of the appellant as the application of the appellant is incomplete. It is submitted by him that the SSC, against whom no malafides have been alleged, had applied uniform yardstick and, therefore, the learned Single Judge was not justified in interfering with the selection of the appellant. He has further submitted that the writ petitioner having participated in the interview, subsequent plea taken by him after the results were declared that the SSC was not duly constituted is hit by the principles of approbate and reprobate. 16. In support of his submissions, Mr. He has further submitted that the writ petitioner having participated in the interview, subsequent plea taken by him after the results were declared that the SSC was not duly constituted is hit by the principles of approbate and reprobate. 16. In support of his submissions, Mr. Mahanta has placed reliance on the judgments of the Apex Court in the cases of Madras Institute of Development Studies and Another vs. K. Shivasubramaniyan and Others, (2016) 1 SCC 454 , Union of India and Others vs. Bikash Kuanar, (2006) 8 SCC 192 , Narendra Kumar Maheshwari vs. Union of India and Others, (1989) AIR SC 2138 and a judgment of this Court dated 04.04.2019 passed in Writ Appeal No. 82/2018, Dulumoni Bordoloi vs. Jnandeep Rabha and Others. 17. Mr. Choudhury, learned senior counsel appearing for the writ petitioner has submitted that the learned Single Judge was wholly justified in coming to the conclusion that the selection process is vitiated as 3(three) ACRs of last 3(three) years in respect of the appellant was not available. He has submitted that in terms of the Office Order dated 23.06.2016, as in the relevant years, the writ petitioner had been graded as "Very Good" he is entitled to 2 marks on account of ACR. He has submitted that only 2 marks had been given out of 5 marks, meaning thereby on the "Integrity" aspect, no marks had been awarded to the writ petitioner. The writ petitioner was entitled to additional 2 marks on the heading of "Integrity" and if the said 2 marks had been awarded to the writ petitioner, the result of the selection would have tilted in favour of the writ petitioner as the difference in between them was only 0.21 marks. 18. Mr. Ghosh, learned standing counsel, Education (Secondary) Department has produced the records. He has submitted that the writ petitioner was the Reporting Officer in respect of the appellant for the period of 3(three) years in question. By placing reliance on the records, he has submitted that ACR for the third candidate in the panel prepared by the SSC, namely, Shankardev Barman, was written by the respondent No. 1/writ petitioner for 3(three) years, i.e. for the periods 2013, 2014 and 2015 in one single sheet of paper. By placing reliance on the records, he has submitted that ACR for the third candidate in the panel prepared by the SSC, namely, Shankardev Barman, was written by the respondent No. 1/writ petitioner for 3(three) years, i.e. for the periods 2013, 2014 and 2015 in one single sheet of paper. For the writ petitioner, the ACR was written by the Inspector of Schools for the years 2013, 2014 and 2015 at a time in one sheet. It is not known why in respect of the appellant, period was indicated as 01-01-2015 to 31-12-2015 by the writ petitioner. When there is no allegation of any bias or favouritism, in the facts and circumstances of the case, the learned Single Judge was not correct in interfering with the appointment of the appellant, he submits. 19. In view of the submissions of Mr. Ghosh based on the record, Mr. Mahanta submits that for all intents and purposes, the ACR of the appellant has to be treated for the 3 years last as in case of others and that the writ petitioner has played a mischief to attempt to frustrate the claim of the appellant. 20. We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 21. The writ petitioner is due to go on superannuation on 31.08.2019. Though elaborate pleadings have been set out in the writ petition to contend that constitution of the SSC was vitiated because of appointment of the respondent No. 6 as Member Secretary, he not having B.Ed. Degree, it appears from the judgment of the learned Single Judge that the same was not argued as there is no reflection of any contention advanced in that behalf. Before this Court also, the same has not been urged as an additional ground in support of the judgment impugned in the appeal. Though in the writ petition, the writ petitioner states that after the interview was over on 09.12.2016, he came across the order dated 24.06.2016 nominating the respondent No. 6 as the Member Secretary, in the affidavit-in-reply, it is stated by him that he was under the bonafide belief that the State respondents would replace the respondent No. 6 as there was sufficient time to rectify the defect. It would, in other words mean, that though the writ petitioner was aware of nomination of the respondent No. 6 as Member Secretary, he had harboured a belief that the defect will be removed by the authority. Such a stand is contrary to what is pleaded in the writ petition. Even after the interview that had taken place on 09.12.2016, the writ petitioner did not raise any issue with regard to constitution of the SSC. Only after coming to know about the panel from some reliable sources, the writ petitioner had lodged a complaint on 09.01.2017 (Annexure-1). Even in that complaint, improper constitution of the SSC was not taken as a ground. 22. The judgment relied on by Mr. Mahanta in Dulumoni Bordoloi (supra) and Madras Institute of Development Studies (supra), makes it abundantly clear that the writ petitioner having taken part in the selection process without any demur, he had taken a calculated chance and, therefore, he cannot now turn around and contend that the SSC was not properly constituted. The writ petitioner is estopped from questioning the same and that perhaps explains why the plea was not taken forward by way of submissions. 23. In Bikash Kuanar (supra), it was observed by the Hon'ble Supreme Court that when a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. In Narendra Kumar Maheshwari (supra), it was held by the Hon'ble Supreme Court that the guidelines have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. It is only when the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose, which the guidelines and the statute under which they are issued are intended to achieve, the Court will have to step in. 24. It appears from the records produced by Mr. Ghosh that 10(ten) candidates were interviewed for the post of Principal in respect of the school in question. The writ petitioner had stated in the writ petition that the appellant had submitted the ACR only for the period w.e.f. 01.01.2015 to 31.12.2015. It is not understood the basis of such a statement. It appears from the records produced by Mr. Ghosh that 10(ten) candidates were interviewed for the post of Principal in respect of the school in question. The writ petitioner had stated in the writ petition that the appellant had submitted the ACR only for the period w.e.f. 01.01.2015 to 31.12.2015. It is not understood the basis of such a statement. The ACRs are not kept in the custody of the individual teachers and therefore, the appellant could not have produced the ACRs before the SSC. The writ petitioner was holding the office as In-charge Principal from 04.02.2013 and he was the Recording Officer in respect of the ACRs of the teachers of the school for the years 2013, 2014 and 2015. He had written the ACRs for 3(three) years at a time, i.e. 2013, 2014 and 2015 in one sheet of paper in respect of the third candidate in the panel, Shankardev Barman, by indicating the said period on top of the sheet and making a report accordingly. For the writ petitioner also, the ACR for the years 2013, 2014 and 2015 was written in one single sheet of paper. It is evident that both in respect of the petitioner and Shankardev Barman, observations made in the report were taken as a whole for 3 years as a block. It is not the case of the writ petitioner that he had written the ACRs of the appellant separately for the years 2013, 2014 and 2015. No ACRs for the period 2013 and 2014 have been produced by the standing counsel. Therefore, what was recorded in the ACR in respect of the petitioner for the year 2015, has to be taken to have been also made for the period 2013 and 2014, as in respect of others. That apart, in respect of administrative capacity and capacity to undertake higher duties, initially "Very Good" was written but subsequently, the same was scored off and "capable" was inserted. However, he himself being the Recording Officer of the ACR, a query was raised by him that the grading "capable" was not even prescribed. Even the year of the period is left blank in respect of the appellant. 25. However, he himself being the Recording Officer of the ACR, a query was raised by him that the grading "capable" was not even prescribed. Even the year of the period is left blank in respect of the appellant. 25. We may not attribute any motive or deliberate design on the part of the writ petitioner but fact remains that the ACR of the appellant was not written properly by him and the same was also overlooked by the Inspector of Schools being the Accepting Authority. It is also not understood why ACRs are not written yearly as it is supposed to be, but written for a block period of number of years. It is an established principle of law that no man can take advantage of his own wrong. It was the responsibility of the writ petitioner to have written the ACR for the relevant years and his omission to indicate the years cannot be leveraged by him against the interest of the appellant. When ACR in respect of others have been written at a time for the period 2013, 2014 and 2015, there can be no rational in treating the case of the appellant differently and to hold that the ACR was of only 1(one) year. 26. The learned Single Judge did not advert to these aspects of the matter. When the materials on record demonstrate in unequivocal terms that 3(three) years of ACR is written in one single sheet indicating the years in respect of the writ petitioner as well as the third candidate in the panel, it has to be taken that the ACR of the appellant was also for the same period, i.e. 2013, 2014 and 2015. Even if this aspect of the matter had escaped notice of the SSC, in view of our discussion above, the same will not vitiate the selection process on the ground that ACR of last 3 years was not available before the SSC. 27. In the Office Order dated 23.06.2016, one of the headings for award of mark is written as "Integrity - 5 marks and ACR." In our considered opinion, the heading is not correctly and appropriately styled having regard to the parameters given and we think it should have been indicated as "Integrity and ACR - 5 marks". In that case only, it would have been in consonance with the stated objectives and parameters indicated under that heading. In that case only, it would have been in consonance with the stated objectives and parameters indicated under that heading. Both the appellant and the writ petitioner did not have any past record of any punishment imposed and no departmental proceeding is also pending against them. Both the appellant and the writ petitioner had been awarded 2 marks in respect of "Integrity - 5 marks and ACR." We have already held that on the component of ACR, both were given "Very Good." On the aspect of integrity also, they are identically situated qua the parameters indicated. There is uniform application of award of marks in identical circumstances and therefore, even if there is any deviation from the guideline, it cannot be countenanced that the SSC has acted arbitrarily and in a manner prejudicial to the interest of the writ petitioner. The order dated 23.06.2016 was issued to give objectivity to the selection process. When in identical fact situation, both the appellant and the writ petitioner had been given uniform marks on the heading "Integrity - 5 marks and ACR" and when the difference in between the appellant and the writ petitioner in ranking had occasioned due to marks awarded in "Administrative Ability" we are of the opinion that no interference was called for with regard to the appointment of the appellant. 28. In view of the above discussions, we are of the opinion that the judgment of the learned Single Judge cannot be sustained in law and accordingly, we set aside the impugned judgment and order dated 28.03.2019 passed by the learned Single Judge in WP (C) No. 2784/2017. Consequently, the writ petition stands dismissed. 29. The writ appeal is allowed. No cost.