Allowed

Sri Dhiren Chandra Robidas v. the State of Assam and 6 Ors.

Gauhati HC2 Apr 2019WA/146/2016

Case brief

AI extract

What is this about?

On appeal against a Single Judge's order setting aside a teacher's appointment due to alleged non-preparation of a constituency-wise select list, the High Court held that a Notification dated 04.04.2013 validly relaxed this rule. Consequently, the Single Judge's decision was unsustainable and the appeal was allowed.

What did the court decide?

The impugned judgment and order dated 29.04.2016 passed by the learned Single Judge was set aside and the appeal was allowed.

Sri Dhiren Chandra Robidas Vs the State of Assam and… — Service and Employment | Gauhati HC (2019)

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GAHC010111522016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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WRIT APPEAL NO.146 OF 2016

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Shri Dhiren Chandra Robidas, Son of Sri Bisun Robidas, Resident of Bandarmari Village, P.O. Nohat, P.S. Demow, District- Sivasagar, Assam.

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….. Appellant

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-Versus-

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The State of Assam, Represented by the Commissioner & Secretary, Department of Secondary Education, Government of Assam, Dispur, Guwahati-781 006.

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The Commissioner & Secretary, to the Government of Assam, Department of Secondary Education, Dispur, Guwahati-781006.

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The Director of Secondary Education, Assam, Kahilipara, Guwahati- 781019.

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The Director of Secondary Education, Assam and Member Secretary, State Selection Board, Assam, Kahilipara, Guwahati-781019.

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The Managing Committee, B.P.B. Memorial H.S. School, Sonari, P.O. Sonari, PIN- 78569, Dist- Sivasagar, Assam.

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The Principal, B.P.B. Memorial H.S. School, Sonari P.O. Sonari, PIN- 78569, Dist- Sivasagar, Assam.

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Smt. Bharati Chetia, Wife of Sri Dhiraj Gogoi, Resident of Uttar Sonari, Ward No.12, Borahi Ali, Sivasagar, PIN-78569, Dist- Sivasagar, Assam.

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….. Respondents

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BEFORE HON’BLE THE CHIEF JUSTICE MR. A.S. BOPANNA HON’BLE MR. JUSTICE ARUP KUMAR GOSWAMI

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For the appellant

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: Mr. K.N. Choudhury, Senior Advocate. Mr. D.K. Roy, Advocate.

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For the respondent

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: Mr. J. Abedin, Standing Counsel, Secondary Education

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Mr. D. Das, Senior Advocate Ms. R. Gogoi, Advocate for Respondent No.7

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Date of hearing & Judgment : 02.04.2019

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JUDGMENT & ORDER (ORAL)

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(A.K. Goswami, J)

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Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. D.K. Roy, learned counsel for the appellant. Also heard Mr. D. Das, learned senior counsel assisted by Ms. R. Gogoi, learned counsel for the respondent No.7 as well as Mr. J. Abedin, learned Standing Counsel, Secondary Education, Assam appearing for respondent Nos.1, 2, 3 and 4.

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2. Despite service of notice, respondent Nos.5 and 6, the Managing Committee and Principal of B.P.B. Memorial H.S. School, Sonari, respectively, have chosen not to enter appearance.

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3. This intra-Court appeal is preferred against the judgment & order dated 29.04.2016 passed by the learned Single Judge in WP(C) No.4409/2013, whereby the appointment of the writ appellant to the post of Subject Teacher in Sociology in B.P.B. Memorial Higher Secondary School, Sivasagar was set aside with a further direction to the Director of Secondary Education, Assam to examine the results of the selection process held pursuant to the advertisement dated 08.02.2003 and to make a fresh select list in respect of the Sonari Legislative Assembly Constituency and thereafter to pass consequential orders for appointment of Subject Teacher in the aforesaid post of Sociology on the basis of the select list.

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4. As noticed by the learned Single Judge, the question that had fallen for consideration was as to whether the select list dated 06.04.2013 prepared by the

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Director of Secondary Education can stand scrutiny in view of Rule 7(1)(b) of the Assam Secondary Education (Provincialisation) Service Rules, 1982 (for short, hereinafter referred to as ‘the 1982 Rules’), which requires preparation of the list Constituency-wise, in as much as, the select list was not prepared Constituency-wise, as required, but was prepared School-wise.

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5. The learned Single Judge held that the appellant, admittedly, was not hailing from Sonari Legislative Assembly Constituency, where the school is located, but being a resident within Thowra Legislative Assembly Constituency, select list dated 06.04.2013 was not prepared in conformity with Rule 7(1)(b) of the 1982 Rules. It is on that premise, the directions as noted hereinabove, were issued.

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6. Having regard to the question that had fallen for consideration before the learned Single Judge, at the first instance, the submission of Mr. K.N. Choudhury, learned senior counsel for the appellant may be noted. It is submitted by Mr. Choudhury that though there was a requirement of preparation of select list Legislative Assembly Constituency-wise under Rule 7(1)(b) of the 1982 Rules for the purpose of appointment to the post of Subject Teachers in the provincialised Higher Secondary Schools, a Notification dated 04.04.2013 had been issued whereby the requirement of publication of the select list Legislative Assembly Constituency-wise was relaxed. However, this aspect of the matter was not brought to the notice of the learned Single Judge by any of the parties, though the Notification was available in the affidavit-in-reply filed by the writ petitioner and, therefore, the learned Single Judge being unaware of the above development, proceeded to render the impugned judgment. During the course of his submissions, he has also taken us through the materials on record to indicate what necessitated issuance of the said Notification dated 04.04.2013.

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7. Mr. D. Das, learned senior counsel for respondent No.7, on the other hand, has submitted that the appellant was not considered to be an eligible candidate by the School Selection Committee as he had not secured second division at least either in the HSLC or in the HSSLC Examination in terms of the advertisement dated 08.02.2003 and, therefore, under no circumstance the appellant could have been selected for appointment to the post of Subject Teacher. In this connection, by placing reliance on

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the additional affidavit filed at the appellate stage, he has submitted that the appellant, though may belong to Scheduled Caste category, had not applied under that category and, therefore, his candidature was not considered by the School Selection Committee. He has also submitted that, being ineligible, the appellant never appeared before the School Selection Committee. It is further submitted by Mr. Das that by another Notification dated 04.04.2013, the marks obtained in viva-voce was sought to be discarded and, in fact, the marks obtained in the interview were not taken into consideration while preparing the select list and, therefore, when as per the 1982 Rules, the marks secured in the interview were required to be computed while finalizing the select list, an obvious error has crept in while publishing the select list and, therefore, the same needs interference.

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8. In reply, Mr. Choudhury has submitted that though the appellant belongs to Thowra Legislative Assembly Constituency, there was no fetters either in the 1982 Rules or in the advertisement dated 08.02.2013 debarring his participation in selection process for any school in any other Constituency and if any such stipulation was put, the same would have been clearly ultra vires Articles 15 and 16 of the Constitution of India. It is submitted by him that Annexure-C to the additional affidavit filed at the appellate stage, which is a letter of the Principal of the school, would indicate that there was an attempt to suppress the candidature of the appellant as a Scheduled Caste category candidate, in as much as, it was indicated therein that there was no candidate belonging to the Scheduled Caste category. By placing reliance on the direction contained in the judgment dated 11.12.2008 passed in Writ Appeal No.238/2005 and other connected cases, he contends that the appellant had appeared before the interview held centrally at the office of the Director of Secondary Education at Guwahati and the aspect as to whether a candidate appeared before the School Selection Committee or not in that context pales into insignificance. He further contends that these issues were not raised before the learned Single Judge and furthermore, no foundation for the same was laid by making appropriate pleadings and, therefore, the Court may not go into this aspect of the matter and confine adjudication only on the basis of questions raised before the writ Court.

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9. Mr. J. Abedin, learned Standing Counsel, Secondary Education Department states that, in the facts and circumstances, the matter ought to be remanded to the

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Director of Secondary Education for a fresh evaluation in terms of the judgment rendered by the learned Single Judge.

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10. We have considered the submissions of the learned Counsel for the parties and have perused the materials on record.

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11. To appreciate the rival contentions, it would be appropriate to take note of the relevant facts as it emerged from the materials on record.

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12. It is pleaded that the mother-in-law of the writ petitioner, Labanya Borgohain was a Subject Teacher in Sociology in the B.P.B. Memorial H.S. School and after rendering service for 8(eight) years, she expired on 01.04.2000 and on her death, the writ petitioner had served the aforesaid school on honorary basis from January, 2001. The writ appellant had also pleaded that he had teaching experience as he was serving in Panidihing Junior College, Rajabari since 1997.

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13. An advertisement dated 08.02.2003 was published by the Director of Secondary Education, Assam inviting applications from intending candidates for the post of Post-Graduate Teachers (also called as Subject Teachers) lying vacant in the provincialised Higher Secondary Schools of the State. The applications were to be submitted within 20(twenty) days of the advertisement in the respective schools where vacancy existed as per confirmation made by the Inspector of Schools concerned. It was mentioned in the advertisement that the applicants must have passed at least 2^nd Class P.G. Degree in Arts or Science and he/ she must possess 2^nd division at least in one examination of H.S.L.C or Higher Secondary, which is relaxable in case of S.C. and S.T. candidates. The selection of candidates was to be made centrally at Directorate of Secondary Education, Assam.

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14. The aforesaid advertisement was issued when the 1982 Rules were in force. On 12.08.2003, however, the Assam Secondary Education (Provincialised) Service Rules, 2003 (hereinafter referred to as ‘the 2003 Rules’) had come into force. An Association of Assistant Teachers in the High and Higher Secondary Schools of Assam having PostGraduate Degree preferred a writ petition being WP(C) No.7933/2003 before this Court. Another teacher having Post-Graduate degree also preferred a writ petition being WP(C)

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No.8319/2003. The claim made in both the writ petitions was that under the 1982 Rules the petitioners and other similarly situated candidates were entitled to some weightage in the matter of recruitment of teachers contemplated under the aforesaid advertisement. They apprehended that in view of the repeal of the 1982 Rules, the authorities of the State would follow the procedure contemplated under the 2003 Rules which do not provide for such weightage. Accordingly, the petitioners in these two writ petitions prayed for a direction to the respondents to conduct the recruitment process in accordance with the procedure as contemplated under the 1982 Rules. By judgment & order dated 04.01.2005, the writ petitions were disposed of directing that the recruitment pursuant to the advertisement dated 08.02.2003 must be made strictly in accordance with the 1982 Rules. It was also indicated that if any member of the Association had not submitted his/her application, he/she shall be allowed to file application.

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15. Against the judgment & order dated 04.01.2005 passed in WP(C) No.7933/2003 and WP(C) No.8319/2003, Writ Appeal No.238/2005 was preferred.

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16. There was a development during the pendency of the said appeal. In purported exercise of powers under the 2003 Rules, the Commissioner & Secretary to the Government of Assam, by a communication dated 27.02.2006, directed the Director of Secondary Education, Assam to issue appointment orders in favour of 254 candidates whose names were mentioned in the annexure to the said communication, which was in the form of a select list. However, none from the select list came to be appointed and this led to filing of WP(C) No.689/2007, WP(C) No.842/2007, WP(C) No.908/2007 and WP(C) No.1975/2007, wherein a prayer was made to issue a writ of mandamus to the State respondents to make appointment in terms of the communication dated 27.02.2006. Another writ petition, namely, WP(C) No.3429/2007, was filed assailing an advertisement dated 03.06.2007 whereby applications were invited for filling up 158 posts which had occurred after the coming into force of the 2003 Rules. By judgment & order dated 31.07.2007, the writ petitions wherein directions were sought for appointing the petitioners on the basis of the select list dated 27.02.2006, were dismissed on the ground that they were selected by the respective School Managing Committees at district level and not by the State Selection Board as was warranted under the 1982

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Rules. Though in the initial advertisement dated 08.02.2003 the number of posts was not indicated, as the materials on record indicated that 254 posts were available prior to coming into force of the 2003 Rules, a direction was issued to complete the process for recruitment of 254 number of posts in terms of the 1982 Rules and 158 posts were directed be filled up as per the 2003 Rules. In the above terms, WP(C) No.3429/2007 was disposed of.

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17. The petitioners in WP(C) No.908/2007 preferred Writ Appeal No.358/2007 and the petitioners in WP(C) No.1975/2007 preferred Writ Appeal No.389/2007. All these appeals, namely, Writ Appeal No.238/2005, Writ Appeal No.358/2007 and Writ Appeal No.389/2007, came to be considered and disposed of by the judgment & order dated 11.12.2008. The Division Bench opined that in the facts and circumstances of the cases, the State could not be compelled to make appointment pursuant to the communication dated 27.02.2006. However, direction was issued to conduct the recruitment process for the above mentioned 254 posts for which the authorities of the State had issued the advertisement dated 08.02.2003 by considering only those candidates who responded to the above mentioned advertisement within the stipulated time and who had satisfied all other eligibility criteria in terms of the said advertisement. In addition to that, 101 teachers who were eligible to apply in terms of the original Notification but had not applied within the time stipulated by the Notification and were considered while preparing the select list dated 27.02.2006 pursuant to the direction in WP(C) No.8139/2003 and WP(C) No.7933/2003, were also required to be considered while conducting the recruitment process.

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18. On the basis of this direction, a subsequent advertisement dated 31.03.2010 was issued. The venue for the interview was the conference hall of the Director of Secondary Education, Assam. The appellant was issued a call letter dated 01.04.2010 for the interview requiring him to be present on 19.04.2010 for the purpose of interview for the post of Post-Graduate Teacher in Sociology. Accordingly, interviews were held and it is the case of the appellant that he had also participated in the said interview.

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19. Though a considerable time had elapsed from the time of holding of interview, result was not published. It was at that stage, on 04.04.2013, the Commissioner &

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Secretary to the Government of Assam, Secondary Education Department had issued a Notification under Rule 15 of the 1982 Rules providing for preparation of School-wise select list instead of Legislative Assembly Constituency-wise select list in relaxation of Rule 7(1)(b) of the 1982 Rules. In the said Notification it is recited that advertisement dated 08.02.2003 was issued in anticipation of publication of 2003 Rules in the official Gazette. However, in view of directions dated 04.01.2005 passed in WP(C) No.7933/2003 and WP(C) No.8319/2003, selection was made as per 1982 Rules. However, as the applications were received School-wise, preparation of select list was required to be made School-wise. Another Notification dated 04.04.2013 was issued by the Commissioner & Secretary to the Government of Assam, Secondary Education Department, under Rule 15 of the 1982 Rules providing that no marks for viva- voce in respect of selection of Subject Teacher in provincialised Higher Secondary Schools in response to the advertisement dated 08.02.2003 will be awarded. In the Notification itself, it was indicated that in respect of many candidates marks have been overwritten subsequently either by a member of the Selection Board or any other person without any authority.

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20. After issuance of the aforesaid 2(two) Notifications dated 04.04.2013, on 06.04.2013, a select list comprising of 216 candidates was published. For the purpose of this proceeding, it is not necessary to dwell upon why the select list comprised of 216 candidates and not 254. In the select list, name of the appellant was shown as recommended in respect of B.P.B. Memorial H.S. School in the subject of Sociology indicating category of reservation as Scheduled Caste. On 06.04.2013 itself, the appellant was appointed in B.P.B. Memorial H.S. School in the subject of Sociology.

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21. The Notification dated 04.04.2013 providing for preparation of School-wise select list as well as the select list dated 06.04.2013 was assailed in WP(C) No.3281/2013 (Inamul Hoque -Vs- State of Assam & Ors.). The said writ petition was dismissed vide judgment & order dated 27.10.2016.

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22. The select list dated 06.04.2013 was assailed by Sewali Kakoti and 27 others in WP(C) No.1955/2013. The assailment was primarily on the grounds, as can be seen from the judgment dated 15.09.2016, that the select list was prepared contrary to the

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directions of the Division Bench dated 11.12.2008 passed in Writ Appeal No.238/2005 and other connected appeals, in as much as, the selection was not conducted in terms of the 1982 Rules and instead of 254, only 216 candidates were selected. Grievance was also made that names of many candidates appeared against more than one school. Prayer was also made for a direction to the State respondents to publish a fresh select list strictly on merit in terms of the judgment & order dated 11.12.2008 passed in Writ Appeal No.238/2005 and other connected appeals. In WP(C) No.1955/2013, neither of the Notifications dated 04.04.2013 was under challenge. Accordingly, in absence of any challenge, the learned Single Judge dismissed the writ petition. The judgment dated 15.09.2016 in WP(C) No.1955/2013 was the subject matter of challenge in Writ Appeal No.272/2017.

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23. There was another writ petition being WP(C) No.2014/2013 (Md. Momin Ali & Ors. -Vs- The State of Assam & Ors.), wherein the select list dated 06.04.2013 was challenged. The same was dismissed by judgment & order dated 18.11.2016 following the judgment rendered in Sewali Kakoti (supra). A writ appeal being Writ Appeal No.236/2017 was preferred against the said judgment & order dated 18.11.2016.

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24. Both the writ appeals, i.e. Writ Appeal No.236/2017 and Writ Appeal No.272/2017, were dismissed by separate orders dated 01.02.2018, concurring with findings and decision of the learned Single Judge and reiterating that in absence of any challenge to the Notification dated 04.04.2013, the appeals were without any merit.

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25. By the Notification dated 04.04.2013, in exercise of powers under Rule 15, the requirement of Rule 7(1)(b) of the 1982 Rules was relaxed thereby permitting select list to be published not Legislative Assembly Constituency-wise, but School-wise. There was no challenge to the said Notification in the instant writ proceeding. Therefore, the very edifice of the challenge mounted by the appellant that the list was not prepared Constituency-wise does not hold good. The said Notification was questioned in Inamul Hoque (supra) and the challenge was negated. It appears that the judgment in Inamul Hoque (supra) was not carried on appeal. The challenge to the selection process which was followed pursuant to the judgment dated 11.12.2008 passed in Writ Appeal No.238/2005 and other connected appeals had also been rejected in Writ Appeal

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No.236/2017 and Writ Appeal No.272/2017 as no fault was found in the process undertaken. No doubt, inter-se disputes on fact situation emerging still could be questioned in an appropriate writ proceeding.

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26. Though Mr. Das had contended that the process undertaken was flawed as no marks were assigned in viva-voce, a point neither pleaded nor urged before the learned Single Judge, the argument even if taken note, does not take the case of the writ petitioner any further. As noticed earlier, by another Notification dated 04.04.2013, in exercise of powers under Rule 15 of the 1982 Rules, in relaxation of the Rule requiring award of marks in viva-voce, was dispensed with. The Notification was not challenged by the writ petitioner and, therefore, the decision rendered in Writ Appeal No.236/2017 and Writ Appeal No.272/2017 applies in all fours.

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27. The other ground urged by Mr. Das is that the writ appellant was not a qualified candidate and, therefore, his selection is de hors the mandate of the eligibility criteria prescribed under the 1982 Rules. It is to be noted that no foundation was laid by the writ petitioner while assailing the eligibility or otherwise of the writ appellant. It is not disputed that the writ appellant does not belong to Scheduled Caste category. Though it is an admitted position that he did not secure second division either in the HSLC or HSSLC examination, what is important is to note that there was a relaxation clause so far the Scheduled Caste candidates were concerned. It is not the case projected by the writ petitioner that the appellant had never submitted any application in response to the advertisement dated 08.02.2003. In fact, the additional affidavit that was filed at the appellate stage by the writ petitioner itself goes to show that the name of the appellant figured at Sl. No.19 of Annexure-C letter issued by the Principal of the School, wherein names of the candidates who had submitted their application to the school concerned, were indicated. It was also indicated therein in the ‘Remarks’ column that he was considered ineligible as he had not passed HSLC or HSSLC Examination in second division.

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28. No material was annexed with the additional affidavit or in the affidavit filed by school authorities to the writ petition indicating that the writ appellant had not enclosed any document to demonstrate that he was a Scheduled Caste candidate. By the letter

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dated 10.07.2012, the Principal of the school requested the Director of Secondary Education to appoint the writ petitioner, who belongs to Other Backward Class category, due to non-availability of Scheduled Caste category candidate, which, in other words, is a hint that the post was otherwise meant for Scheduled Caste category candidate. In absence of any pleading in the writ petition that the appellant did not submit his candidature as a Scheduled Caste category, we are of the considered opinion that in the appellate stage, this aspect of the matter, which is wholly factual, ought not to be entertained, more so, when almost 16 years have gone by since the advertisement was issued on 08.02.2003. The argument of Mr. Das that the appellant was not selected by the School Managing Committee does not merit acceptance, in as much as, the select list dated 06.04.2013 was prepared on the basis of interviews held at the office of the Director of Secondary Education, Assam and not in the respective schools. At the cost of repetition, it is once again noted that the select list dated 06.04.2013 was upheld by this Court vide judgment & order dated 01.02.2018 passed in Writ Appeal No.236/2017 and Writ Appeal No.272/2017.

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29. In view of the above discussion, we are of the considered opinion that the impugned judgment & order dated 29.04.2016 passed by the learned Single Judge cannot be sustained. Accordingly, the impugned judgment & order dated 29.04.2016 passed by the learned Single Judge is set aside.

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30. The appeal is allowed. No cost.

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Sd/Sd/- JUDGE CHIEF JUSTICE

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Skd/ M. Sharma

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Comparing Assistant

Sri Dhiren Chandra Robidas v. the State of Assam and 6 Ors.

Case brief

What is this about?

What did the court decide?

Sri Dhiren Chandra Robidas v. the State of Assam and 6 Ors.

Case brief

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