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2019 DIGILAW 99 (GAU)

Charulata Kalita v. State of Assam

2019-01-25

SANJAY KUMAR MEDHI

body2019
JUDGMENT : 1. The extra ordinary jurisdiction under Article 226 of the Constitution of India is sought to be invoked in the present proceeding with regard to a selection process and the consequent appointment for the post of Principal of A.K.H.S. Institution in the District of Kamrup. The petitioner was one of the aspirants for the said post and in the selection so held, she had participated; however, in the panel of selected candidates, her name had figured against Sl. No. 3, i.e., in the last position. The petitioner has based her challenge mainly on two grounds, i.e., (i) infraction of the Rules so far as Constitution of the School Selection Committee is concerned; and (ii) eligibility of the respondent No. 7 to be considered for appointment to the said post. 2. I have heard Shri B. Chetri, learned counsel for the petitioner; Shri J. Abedin, learned Standing Counsel, Secondary Education Department; Shri D. P. Sahu, leaned counsel for the respondent Nos. 5 & 6 – School Management; Ms. M. D. Bora, learned State Counsel, appearing on behalf of the Deputy Commissioner, Kamrup; and Shri S. Borthakur, learned counsel for the respondent No. 7. 3. All the contesting respondents have filed their respective affidavit-in-oppositions. 4. A brief narration of the facts of the case is given herein below. 5. The petitioner was appointed as an Assistant Teacher in the A.K.H.S. Institution (herein after the School) in the year 1989, whereas, the respondent No. 7 was transferred to the said School on 28.08.2000. Presently, the petitioner claims to be the senior most Assistant Teacher of the School and Page No.# 3/8 in fact, on the retirement of the earlier incumbent, Shri Bani Kanta Chakravarty, on 31.03.2017, the petitioner was allowed to hold charge of the School as Principal vide an order dated 30.03.2017. It is the case of the petitioner that the respondent No. 7 was given graduate scale of pay only from 04.06.2001. 6. Coming to the issue in question, an advertisement was published on 09.06.2016, for selection for the post of Principal of the School in question. Such selection are required to be held by following Rule 13 of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (hereinafter referred to as the Rules) read with the guidelines laid down by the Director of Secondary Education, dated 23.06.2016. Such selection are required to be held by following Rule 13 of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (hereinafter referred to as the Rules) read with the guidelines laid down by the Director of Secondary Education, dated 23.06.2016. The interview was held on 08.11.2016 and after such interview, the matter was kept pending at the level of the Department and it is the case of the petitioner that she was not aware about the outcome of the selection held by the School Selection Committee. In the meantime, as has been stated earlier, the in-charge Principal had retired from service on 31.03.2017 and the petitioner was allowed to hold charge of the post of Principal. It may be mentioned that the School Selection Committee constituted of the following members – (i) Chairman Dr. Kukul Barua, President of SMDC (ii) Member Shri Rupak Deka, Vice President of SMDC (iii) Member one parent to be nominated by SMDC (iv) Member Secy. Binapani Mahanta, subject teacher 7. The petitioner apprehends that since she had raised her voice regarding certain anomalies in the School fund, the School Management Committee was against her and therefore, she was not treated fairly in the selection. The projected case of the petitioner is that on 18.04.2017, she came to know that the respondent No. 7 was selected for the post and was going to be appointed on 02.05.2017. Accordingly, the petitioner had submitted two representations, dated 19.04.2017 and 24.04.2017 respectively, to the Deputy Commissioner and the Inspector of Schools. She had, further, submitted representation dated 25.04.2017, to the Commissioner and Secretary, Government of Assam as well as the Director of Secondary Education, Assam. This Court while entertaining the writ petition had passed an interim order dated 03.05.2017 that the in-charge arrangement of the petitioner as Principal would continue. 8. It may be mentioned that, in the meantime, vide order dated 02.05.2017, issued by the Director of Secondary Education, the respondent No. 7 was appointed as Principal on regular basis of the School in question pursuant to the recommendation of the State Selection Board, Assam. The said order has been brought on records by the petitioner by an additional affidavit filed on 03.05.2017. 9. Shri B. Chetri, learned counsel for the petitioner, submits that the Rules in question lays down the Constitution of the School Selection Committee. The said order has been brought on records by the petitioner by an additional affidavit filed on 03.05.2017. 9. Shri B. Chetri, learned counsel for the petitioner, submits that the Rules in question lays down the Constitution of the School Selection Committee. Referring to Rule 8 (4), Shri Chetri, learned counsel for the petitioner, submits that the Chairman of the School Selection Committee would be the President of the Managing Committee followed by two members, one being from the faculty of the School as indicated and one parent member to be nominated by the Managing Committee and the role of the Member Secretary has to be played by the Principal/Headmaster of the School. 10. For ready reference, the relevant provision of the Rule is quoted herein below - “(4) The School Selection Committee for selection of Principal, Post Graduate Teacher/Graduate Teacher and Non-teaching Staff of School shall be as follows:- Chairman : The President of Managing Committee; Member : (i) The Vice-Principal/a Post Graduate Teacher in case of Higher Secondary School or Assistant Headmaster/Senior most Graduate Teacher in case of High School; (ii) One parent to be nominated by the Managing Committee; Member Secretary : The Principal/Headmaster of the School.” 11. Referring to the pleadings at paragraph 10 of the writ petition, which has been quoted above, the learned counsel, Shri Chetri, submits that apparently, there is infraction of the aforesaid Rule 8 (4) in the Constitution of the School Selection Committee. There was no Vice Principal or senior faculty member who was a member of the Committee and one subject teacher had played the role of Member Secretary which vitiated the entire proceedings. Shri Chetri also urges bias in the selection process on the ground that the petitioner had raised her voice with regard to the alleged anomalies in the School funds. 12. As regards the second ground of challenge, though a vague statement has been made that the respondent No. 7 did not have the eligibility criteria in the writ petition, in the additional affidavit filed, the deficiency has been submitted to be not meeting the minimum length of teaching experience as a graduate teacher. Whereas, the requirement of law under Rule 12 (3) is 17 years, the respondent No. 7 fails to meet the said criteria and therefore, on that count, her selection appointment is bad in law. 13. Whereas, the requirement of law under Rule 12 (3) is 17 years, the respondent No. 7 fails to meet the said criteria and therefore, on that count, her selection appointment is bad in law. 13. On the other hand, the learned counsels for the respondents, while defending the selection and appointment of the respondent No. 7, has questioned the very maintainability of the writ petition. It may be mentioned that the selected candidate, namely, the respondent No. 7 had filed an Interlocutory Application for vacating the interim order which upon understanding was not pressed as the whole matter was to be given a final consideration. 14. Adverting to the pleaded case of the petitioner, Shri S. Borthakur, learned counsel for the respondent No. 7, has submitted that the writ petition itself has been structured on absolutely vague allegations and has been instituted only to harass the respondent No. 7, who is duly selected and appointed. The learned counsel for the respondent No. 7, while denying any infraction of the Rules holding the field, has categorically submitted that the respondent No. 7 meets all the requirement to be considered and appointed as Principal of the School. The learned counsel submits that in absence of any specific averment in the writ petition as to what was the nature of deficiency, there was no scope for the said respondent No. 7 to meet such allegation. In any case, the learned counsel draws the attention of this Court to an order dated 04.06.2001 (annexed to the writ petition), by which it is seen that the respondent No. 7 has been granted graduate scale of pay with effect from 07.04.1999 and therefore, as on the date of the advertisement, i.e. 09.06.2016, the respondent No. 7 had completed more than 17 years. The learned counsel submits that there was no violation in constitution of the School Selection Committee and in any case, the petitioner having participated in the selection without any objection, whatsoever at any stage, cannot turn around and challenge the selection on the ground of flaw in the constitution of the School Selection Committee. The learned counsel further submits that at no point of time such objection was taken and even in the representations dated 24.04.2017 and 25.04.2017, not a whisper was made with regard to any deficiency in constitution of the School Selection Committee. The learned counsel further submits that at no point of time such objection was taken and even in the representations dated 24.04.2017 and 25.04.2017, not a whisper was made with regard to any deficiency in constitution of the School Selection Committee. Dealing with the allegation of bias and mala fide, Shri Borthakur, learned counsel, submits that such allegations are simply baseless and the attending facts and circumstances would dispel such vague allegation. The learned counsel submits that selection so held, the respondent No. 7 was not the first nominee but the second nominee and therefore, the allegation of favouritism falls through. It is only because of the fact that the first nominee Shri Bani Kanta Chakravorty, who was the in-charge Principal, had in the meantime, superannuated from service that the respondent No. 7 got the scope of the appointment. Meeting the argument taken up in the additional affidavit of alleged violation of the Assam Fiscal Responsibility and Budget Management Act, 2005, Shri Borthakur, learned counsel, submits that the vacancy in question was not filled up earlier and therefore, the same existed till the appointment of the respondent No. 7 and hence there was no violation. 15. Shri D. P. Sahu, learned counsel for the School Management Committee, while endorsing the submission of the Shri Borthakur, learned counsel for the respondent No. 7, has specifically dealt with the first ground, namely, constitution of the Selection Committee. In the instant case, there was no Vice Principal in the School and further, the Principal in-charge, Shri Bani Kanta Chakraborty, himself being an aspirant, the role of the Member Secretary was played by Smt. Binapani Mahanta, a subject teacher who also fulfilled the requirement of a member in absence of the Vice Principal. A parent member was present in the selection and Shri Rupak Deka, Vice President of the SMDC, though present, did not have any role in the selection. In any case, the selection being wholly objective in nature as per the guidelines contained in the order dated 23.06.2015, there is no question of any discrepancies in the marks to be given to the respective candidates. In fact, there is no scope of any discretion of any of the members in allotting marks and the same has to be absolutely in conformity with the guidelines and pattern mentioned in the said order. In fact, there is no scope of any discretion of any of the members in allotting marks and the same has to be absolutely in conformity with the guidelines and pattern mentioned in the said order. While denying that there is any infraction of Rule 8 (4) regarding constitution of the School Selection Committee, the learned counsel has submitted that no prejudice, whatsoever, has been caused to the petitioner or any of the candidates. The learned counsel, Shri Sahu, has emphatically argued that presence of the Vice President of the SMDC was only to facilitate the selection and did not have any influence. As stated earlier, the learned counsel has submitted that the process of allotting marks is such that no discrepancy can occurred. The learned counsel has submitted that entire selection has been done in bona fide manner keeping the interest of the School in question. Shri D. P. Sahu, learned counsel for the School Management, has also placed original records of the selection. 16. The learned Standing Counsel, Education Department, Shri J. Abedin, and the learned State Counsel, Ms. M. D. Bora, have also supported the case of the respondents. 17. Rejoining his submission, the learned counsel for the petitioner, submits that infraction in the constitution of School Selection Committee goes to the root of the matter and in support of his submissions, the learned counsel cites the following decisions – (i) 2003 2 GLT 661 (Dr. Biren Das Vs. Tezpur University & Ors.); (ii) 2015 3 GLT 211 (Banashree Bharaddash Vs. State of Assam & Ors.); (iii) 2017 3 GLT 429 (Gauhati University & Ors. Vs. State of Assam & Ors.); (iv) 1997 9 SCC 527 (Raj Kumar 7 Anr. Vs. Shakti Raj & Ors.); (v) 2016 1 GLT 789 (Kshireswar Borah Vs. State of Assam & Ors.);and (vi) 2013 2 SCC 516 (Bhupendra Nath Hazarika & Anr. Vs. State of Assam 7 Ors.). 18. On the other hand, Shri S. Borthakur, learned counsel for the respondent No. 7, relies upon the decisions reported in – (i) 1995 3 SCC 486 (Madan Lal & Anr. Vs. State of J & K & Ors.); (ii) 1976 3 SCC 585 (Dr. G. Sarana Vs. University of Lucknow & Ors.); (iii) 2017 9 SCC 478 (D. Sarojakumari Vs. R. Helen Thilakon & Ors.); (iv) 2015 11 SCC 493 (Pradeep Kumar Rai & Anr. Vs. Vs. State of J & K & Ors.); (ii) 1976 3 SCC 585 (Dr. G. Sarana Vs. University of Lucknow & Ors.); (iii) 2017 9 SCC 478 (D. Sarojakumari Vs. R. Helen Thilakon & Ors.); (iv) 2015 11 SCC 493 (Pradeep Kumar Rai & Anr. Vs. Dinesh Kumar Pandey & Ors.); and (v) The decision of the Division Bench in WA 323/2016 (Sri Bhabesh Das Vs. State of Assam & Ors.). 19. The rival contentions of the parties have been duly considered and the pleadings including the documents and records have been examined. 20. The reading of the writ petition would show that as regards the first ground of challenge from the date of the interview, i.e. 08.11.2016, till the date of filing of the writ petition, there is not even a whisper regarding violation of the Rules regarding Constitution of the School Selection Committee. A close look at the Committee which conducted the selection on 08.11.2016 would also show that the mandate of Rule 8 (4) has been substantially complied with. As has been noted earlier, the Principal in-charge himself being an aspirant, the role of the Member Secretary had to be performed by someone else and in the instant case, the subject teacher was appointed as the Member Secretary. The doctrine of necessity saves such a situation and in absence of any mala fide interference on that count is not warranted. The said Subject Teacher was also acting as a member, as admittedly, there was no Vice Principal in the School. Last but not the least, the selection being held as per the guidelines contained in the order dated 23.06.2016, where there is absolutely no room for any subjective satisfaction for allotment of marks, the petitioner cannot succeed on the first ground of challenge. Though this Court is in agreement with the proposition that there cannot be any estopple in law and that by mere participation, a candidate is precluded from challenging the selection, a bare look at the case laws cited by the petitioner shows that in all those cases, irregularities were glaring and blatant and further the marks were to be allotted on subjective satisfaction. Abiding by the principle that each case has to be decided on the basis of its facts and circumstances, this Court is of the view that the case laws cited by the learned counsel for the petitioner will have little application in the instant case, wherein, till filing of the writ petition, no such grounds were taken by the petitioner even as late as 25.04.2017, when the representation was submitted. 21. Regarding the second ground, which was developed in the affidavit-in-reply by the petitioner, namely, lack of eligibility criteria by the respondent No. 7, the order dated 04.06.2001 clinches the issue, wherein, it has been categorically mentioned that the graduate scale of pay was granted to the respondent No. 7 with effect from 09.04.1999 and as on date of the advertisement, the said respondent No. 7 had completed 17 years of service and therefore eligible in all respects. While the petitioner tried to make out a case of allotting less marks to her in the selection, nothing has been mentioned in the writ petition or subsequent affidavits as to under which Head how many marks were reduced. It may be mentioned that as per the order dated 23.06.2016, five (5) marks are allotted under the Leadership Skills, 5 marks under Administrative Ability and 5 marks for Integrity along with that of ACR. The allotment of marks are all objective in nature. 22. In view of the aforesaid facts and circumstances, this Court is of the opinion that none of the grounds of challenge in this petition are sustainable and accordingly this writ petition is held to be devoid of any merits and is accordingly dismissed. The interim order dated 03.05.2017, is hereby vacated.