Mohmod Nadeem Vs the State of Assam and 6 Ors.

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GAHC010171622020

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THE GAUHATI HIGH COURT AT GUWAHATI

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(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Principal Seat at Guwahati

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Writ Petition No. 5179/2020.

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Mohmod Nadeem, S/o Kalam Ahmed, Vill. - Bhelakhamar, P.O. & P.S. – Krishnai, Dist. – Goalpara, PIN - 783126.

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…… Petitioner. - Versus -

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1. The State of Assam, Represented by the Commissioner and Secretary to the Government of Assam in the Secondary Education Department, Dispur, Guwahati – 06.

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2. The Director of Secondary Education Department, Kahilipara, Guwahati – 781034.

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3. The Deputy Commissioner, Goalpara, P.O. – Goalpara, PIN - 783101.

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4. The Additional Deputy Commissioner, Goalpara, P.O. – Goalpara, PIN - 783101.

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5. The Inspector of Schools, GDC, Goalpara, P.O. – Goalpara, PIN - 783101.

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6. The Selection Committee represented by the Principal of Krishnai Madrassa Higher Secondary School, Krishnai, P.O. & P.S. – Krishnai, Dist. – Goalpara, PIN - 783126.

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7. The Principal of Krishnai Madrassa Higher Secondary School, Krishnai, P.O. & P.S. – Krishnai, Dist. – Goalpara, PIN - 783126.

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…… Respondents.

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BEFORE

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HON’BLE MR. JUSTICE ROBIN PHUKAN

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Advocate for the petitioner	:-	Mr. R. Islam.
Advocate for the respondent Nos. 1, 2 & 5	:-	Mr. N.J. Khataniar.
Advocate for the respondent Nos. 3 & 4	:-	Ms. M. Kalita.
Date of Hearing	:-	05.09.2025.
Date of Judgment & Order	:-	15.10.2025.

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JUDGEMENT & ORDER (CAV)

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Heard Mr. R. Islam, learned counsel for the petitioner; Mr. N.J. Khataniar, learned standing counsel for the Secondary Education Department, respondent Nos. 1, 2 & 5; and Ms. M. Kalita, learned Junior Government Advocate for the respondent Nos. 3 & 4.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has:-

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(i) Challenged the letters dated 28.10.2020 & 29.10.2020 (Annexure – 10 & 11), issued by the Additional Deputy

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Commissioner, Goalpara (ADC hereinafter) and Inspector of Schools, Goalpara (IS hereinafter), respectively and also the notice dated 30.10.2020 (Annexure – 9), issued by the Principal of Krishnai H.S. Madrassa School, Krishnai (Principal hereinafter) and

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(ii) Prayed for issuing direction to the respondent authorities, more particularly the Selection Committee, to complete the selection process by conducting the Computer and Viva-Voce Test of the top ten candidates of the selection list dated 08.03.2020 (Annexure – 6).

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Background Facts:-

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3. The background facts, leading to filing of the present petition, are briefly stated as under:-

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“Pursuant to an Advertisement, dated 30.10.2019, issued by the Principal of Krishnai Madrassa H.S. School, Krishnai, Goalpara, in the daily newspaper, namely Axomia Pratidin, for filling up of a vacant post of one Lower Division Assistant (LDA hereinafter) and having requisite qualification, the petitioner had applied for the same by submitting his application along with his all educational qualification certificates and mark sheets, before the Principal of the said school.

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The application of the petitioner, having been found proper, he was called for written examination, held on 08.03.2020 and the result of the said written examination was published on the same day, wherein he stood first.

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Thereafter, on 19.10.2020, the Principal-cum-Member Secretary of the Selection Committee of Krishnai Madrassa H.S. School, Krishnai, had issued call letter to the petitioner for Computer and Oral test, for final selection for the post of Junior Assistant/LDA, to be held on 31.10.2020 and the petitioner received the same on 27.10.2020.

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But, vide notice dated 30.10.2020, the Principal of the said school had postponed the Computer and Oral test, due to unavoidable reasons. Then, on inquiry, the petitioner came to know that the said notice, dated 30.10.2020, has been issued pursuant to the letter dated 29.10.2020, issued by the IS, wherein a direction was issued to stop all kind of appointment and posting related activities of the institution until further order and the said direction was issued as per the letter dated 28.10.2020, issued by the ADC without any reason or authority thereof.”

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Being aggrieved, the petitioner has preferred this writ petition by seeking the reliefs as stated above.

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4. The respondent No. 3, the Deputy Commissioner, Goalpara (DC hereinafter), had filed affidavit-in-opposition, wherein a stand has been taken that an inquiry was conducted with regard to the complaint lodged by one Abdullah Ahmed, alleging anomalies occurred in the selection process for the post of LDA in Krishnai Madrassa H.S. School, wherein 45 numbers of candidates appeared in the examination held on 08.03.2020 and total marks of the question for the said examination was 80 (English – 20, Assamese –

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20, Math – 20, GK – 20) and the highest mark was obtained by Mohmod Nadeem (the present petitioner) is 70 out of 80 and the second highest mark is 22.

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4.1. It is also stated that in view of the complaint, a field inspection was conducted on 27.10.2020, at Krishnai Madrassa H.S. School and the present petitioner was called to the spot and asked to write the same question paper, which he had written on 08.03.2020. Then, he had scored only 16.50 out of 80 and as he scored a very low mark than the main test, i.e. 70 out of 80, the same becomes very doubtful and though the test was conducted on the same paper after 7 months, his excessive low score is not acceptable and there may be an illegal way employed for his exceptionally high score in the written test as there were neither any specific syllabus in the advertisement, nor the question paper was easy.

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4.2. Further stand is that as there is a huge difference in marks, on two different dates, a serious doubt arises regarding his exceptional high score in the written test held on 08.03.2020 and that the petitioner’s qualification is BA with 44% score and that a re-test should be conducted under the supervision of DC and the same should be conducted in a place outside Krishnai, preferably in Goalpara and question paper should also be set under the supervision of DC. Therefore, it is contended to dismiss the petition.

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5. The petitioner has filed affidavit-in-reply, denying the statements and averments made by the respondent No. 3 in his affidavit-in-opposition and it is stated that in the afternoon of 19.10.2020, the petitioner was called over phone by the Principal

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and asking him to attend the school urgently and on his arrival, the Principal had asked him to enter into his office room, wherein a person was already sitting there and subsequently, he came to know that the person is the Executive Magistrate of Goalpara. Thereafter, the said person requested him to sit before him and handed over him a question paper, i.e. the earlier question paper of written examination held 7 months ago, on 08.03.2020, and asked him to write the answers of the same. Then, he got nervous and he could not answer the questions properly on the spot as the same has been done without his knowledge.

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5.1. The petitioner has also stated that it is not possible to any person or any examinee to give proper answer which he had done several months ago and that too, without any preparation. Thereafter, on the basis of the same, the DC had interfered with the selection process, which is fully arbitrary, malafide and without any jurisdiction to do so and that the written test, held on 08.03.2020, was supervised by an Officer deputed by the DC himself.

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5.2. It is also stated that the written examination can be cancelled if any malpractices or anomalies have been reported by the InCharge of the Examination Centre and that too can be done after proper inquiry by the Expert Committee. The petitioner also stated that going by the enquiry report dated 30.11.2020, there is nothing to indicate that at the time of the said examination, there were any anomalies/malpractices done and under such circumstances, it is contended to allow the petition.

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6. The respondent No. 5, i.e. the IS of Goalpara, has also filed affidavit-in-opposition, wherein it is stated that the selection process was initiated after constituting a Selection Committee comprising of Zakir Hussain, Faijil Hoque, Mehbub Ali (President) and Moinul Hoque (Principal) with a declaration that they have no close relation with any candidates for the post of Junior Assistant/LDA and that the District Development Commissioner, Smti Kabita Deka, ACS, the Assistant Commissioner, Goalpara and the ADC, Sri Chandan Borgohain, ACS, the Election Officer, Goalpara were engaged as Supervising Officer for the said selection process.

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6.1. Further stand of the respondent No. 5 is that the question papers and the answer keys were kept in the Treasury Office, Goalpara, pursuant to letter dated 07.03.2020 and thereafter, the selection process was completed and the Selection Committee had submitted the list of top ten candidates of written test held on 08.03.2020. Thereafter, the Principal was directed to conduct the Oral Test of top ten candidates and in the meantime, one filed a complaint against the said written test and therefore, vide letter dated 09.10.2020, the IS had directed the Principal cum Member Secretary of Selection Committee of Krishnai Madrassa H.S. School to submit a detailed report on the complaint and accordingly, a detailed report, dated 20.10.2020, was submitted and thereafter, IS was ready to conduct the Computer Test and Oral Test and requested the DC to engage Supervising Officer. But, in the meantime, the DC had issued a direction to stop all kind of appointment and posting related activities until further communication, vide order dated 28.10.2020. Accordingly, the IS had issued a letter to the Principal, dated

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29.10.2020, to stop all kind of appointment and posting related activities.

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7. Another affidavit was filed by the IS, Goalpara, on 09.01.2025, stating that on 01.03.2022, an advertisement was published by the State Level Recruitment Commission (SLRC hereinafter), for Class – III posts against the vacant posts of all departments under the Government of Assam, which was not known to him officially and he had issued 16 numbers of appointment letters to the selected candidates against 21 numbers of vacant posts, as per recommendation of the SLRC and approval of the Director of Secondary Education Department and thereafter, allotment of place of posting to the 16 numbers of Grade – III appointed candidates were done by the Director of Secondary Education Department.

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7.1. It is further stated that one Pubali Dutta, Junior Assistant, who was appointed in Krishnai H.S. School, had submitted her resignation letter before the Principal of the said school, on 10.05.2024 and since then, the said post is lying vacant.

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8. The IS, respondent No. 5 had filed an additional affidavit on 28.01.2025, and there also it indicates that one Pubali Dutta was appointed as Junior Assistant in Krishnai H.S. School, Goalpara on recommendation of the SLRC and she had resigned on 10.05.2024.

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9. The petitioner had also filed one additional affidavit bringing on record the Assam Direct Recruitment Commission for Analogous Posts in Class III & Class IV Act, 2021 (the Act of 2021 hereinafter) and Section 21(3) of the said Act provides that the provisions of Page 8 of 15

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direct recruitment to posts which are not under the purview of this Act shall continue to be governed as per the existing provisions in any rules or orders where these are incorporated.

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Submissions:-

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10. Mr. Islam, learned counsel for the petitioner submits that the petitioner, being eligible for the post of LDA, applied for the same pursuant to the advertisement issued by the Principal and on 08.03.2020, he appeared in the written test held and he scored 70 marks out of 80 and stood first. Thereafter, the petitioner had received call letter for appearing in Computer Test and Vice-Voce test, scheduled to be held on 31.10.2020, at about 11:00 a.m. But, vide order dated 30.10.2020, the Principal had postponed the Computer and Oral Test until further order.

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10.1. Mr. Islam has further pointed out that the notice issued by the Principal was on the basis of a letter dated 29.10.2020, issued by the IS, Goalpara, wherein a direction was issued to stop all kind of appointment and posting related activities of the institution until further order and the said direction was issued as per the letter dated 28.10.2020, issued by the ADC.

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10.2. Referring to the affidavit-in-opposition filed by the respondent No. 3, Mr. Islam submits that the ADC had issued the letter dated 28.10.2020, on the basis of one inquiry conducted pursuant to a complaint filed by one Abdullah Ahmed, who alleged anomalies in the selection process. Mr. Islam further submits that a field inspection was performed on 27.10.2020, at Krishnai Madrassa H.S. School and the petitioner was called to the spot and asked him to Page 9 of 15

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write the same question paper, which he had written on 08.03.2020, where he had scored only 16.50 out of 80 and as he scored a very low mark than the main test, i.e. 70 out of 80, the same raised suspicion about his scoring 70 marks out of 80 in the written test.

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10.3. Mr. Islam, referring to a decision of this Court, in the case of Smti Lina Bora vs. State of Assam , reported in (2017) 2 GLJ 451 , submits that DC of the concerned district is neither a part of school selection committee nor assigned any supervisory rule in selection and as such, interference by the DC, Goalpara in the said selection process is unauthorized.

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10.4. Referring to another decision of this Court, in the case of Mehbubul Karim vs. State of Assam and Others , in W.P.(C) No. 540/2016, Mr. Islam submits that there is no provision in the Assam Secondary Education Provincialized Service Rule, 2003 (Rule of 2003 hereinafter) assigning any rule to the DC/District Magistrate, Goalpara for taking up a proceeding in the matter of selection to the post of Junior Assistant/LDA and inherent lack of jurisdiction vitiate the action taken by the DC, Goalpara. Mr. Islam further submits that similar observation is made in the case of Salimuddin Ahmed vs. State of Assam and Others , in W.P.(C) No. 2331/2016 also.

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10.5. Mr. Islam, referring to a decision of Hon’ble Supreme Court in the case of Madan Muhon Sarma vs. State of Rajasthan , reported in (2008) 3 SCC 724 , submits that subsequent amendment of the rules, which was prospective in nature, cannot be given retrospective effect.

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10.6. Mr. Islam has referred another decision of Hon’ble Supreme Court in the case Anti Pevin Katti vs. Karnataka PSC , reported in (2019) 3 SCC 157 and submits that a candidate cannot be deprived of that limited right based upon the amended rule during the pendency of the selection process. In support of the said contention, he has referred another decision of Hon’ble Supreme Court in the case of Sashi Bhushan Prasad Singh vs. State of Bihar and Others , reported in 2024 0 SC 860 , wherein it is stated that changing the rule of game after the game started is impermissible and deprived the candidates of their legitimate right under the previous rule.

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10.7. Referring to Section 21(1) of the Act of 2021, Mr. Islam submits that though Act has been amended, the same cannot be given retrospective effect, instead it is clarified that any recruitment process, for which advertisement has been issued, which is at any stage of recruitment, shall be completed as per the existing provision under which advertisement was made and as the selection process started prior to coming into force of the aforementioned Act and is pending at the stage of Computer Test and Viva-Voce, the same cannot be cancelled due to amendment of the Act of 2021.

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10.8. Under the given facts and circumstances, Mr. Islam has contended to set aside the letters, dated 28.10.2020 (Annexure – 10), issued by the ADC, Goalpara and dated 29.10.2020 (Annexure – 11) issued by the IS, Goalpara, pursuant to which the Principal of the said school issued notice, dated 30.10.2020 (Annexure – 9), which is illegal and arbitrary. Therefore, it is contended to interfere with the

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same and also to direct the respondent authorities to proceed with the selection process and to take the same to a logical conclusion.

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11. Per-contra, Mr. Khataniar, learned standing counsel for the Secondary Education Department, has supported the facts stated in the affidavit filed by the respondent No. 5 and he submits that in respect of the written test conducted by the Principal of the said School, some complaint has been received and upon which, inquiry was conducted and a report was also called for from the Principal and the Principal had submitted a report on 20.10.2020.

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11.1. Mr. Khataniar further submits that when the respondent No. 5 was ready to conduct the Computer Test and Oral Test, the letter dated 28.10.2020, received from the ADC, wherein a direction was issued to stop all kind of appointment and posting related activities of the institution until further order. Under such circumstances, Mr. Khataniar submits that there is no merit in this petition and accordingly, it is contended to dismiss the same.

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12. On the other hand, Ms. Kalita, learned Junior Government Advocate for the respondent Nos. 3 & 4 also submits that on receipt of the complaint, an inquiry was conducted and on the basis of the same, the process has been stopped by the DC and that the DC has rightly done the same. Therefore, Ms. Kalita has contended to dismiss the petition.

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13. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the Annexure Nos. 9,

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10 & 11 and also gone through the decisions referred by learned counsel for the petitioner.

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14. The basic facts herein this case are not in dispute. The selection process was conducted under the supervision of the DC, Goalpara as per Assam Secondary Education (Provincialised) Service Rules, 2003 (Rules, 2003 hereinafter). But, subsequently, the Government has enacted the Act of 2021 and in view of Sub-Section 1 to Section 21, since the recruitment process was initiated under earlier Rule, the said Act would not stand in the way of completion of the earlier selection process initiated under the earlier set of Rule and this proposition is well settled in the case of Madan Muhon Sarma (Supra), Anti Pevin Katti (Supra) and Sashi Bhushan Prasad Singh (Supra) .

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15. It also appears from the affidavit-in-opposition filed by the respondent No. 5 that though the selection process was conducted under the new Act and one Pubali Dutta was appointed to the post of advertised for. But, she resigned from the said post due to personal problem on 10.05.2024, and as such, the post of Junior Assistant/LDA in Krishnai Madrassa H.S. School, Krishnai is lying vacant since then.

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16. Further, under the earlier set of Rule, under which the selection process was conducted, the DC, Goalpara, has not been assigned any role in the selection process and though the examination was conducted under his supervision, yet he had to play no role in the Rules, 2003. And as held by a Coordinate Bench of this Court in the case of Smti Lina Bora (Supra) and Salimuddin

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Ahmed (Supra) , the DC has no role in the selection process, his interference with the same, is unauthorized.

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17. That being so, the impugned letter dated 28.10.2020, issued by the ADC, Goalpara (Annexure – 10); letter dated 29.10.2020, issued by the IS, Goalpara (Annexure – 11); and the notice dated 30.10.2020, issued by the Principal of the aforesaid School (Annexure – 9) are liable to be interfered with.

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18. Notably, the affidavit-in-opposition filed by the respondent No. 5, on 23.02.2023, reveals that the question papers and the answer keys were kept in the Treasury Office, Goalpara and selection process was conducted under the supervision of one Sri Chandan Borgohain, ACS, the Election Officer, Goalpara who was engaged by the DC, Goalpara and the written test was done smoothly under the vigilance of the Supervising Officers and IS, Goalpara and in that view of the matter also interference by the DC in the selection process is arbitrary and illegal and liable to be interfered with.

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19. Accordingly, the impugned letters, being Annexure Nos. 9, 10 & 11 issued by the Principal, ADC and IS are set aside and quashed. The respondent authorities are directed to conduct the Computer and Oral Test by issuing notice to all the top 10 candidates, whose names were figured in the selection list dated 08.03.2020 (Annexure – 6) and to take the selection process to a logical conclusion.

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20. The aforementioned exercise has to be carried out within a period of 3 (three) months from the date of receipt of the certified copy of this order.

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21. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1 (one) week from today.

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JUDGE

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Comparing Assistant

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Mohmod Nadeem v. the State of Assam and 6 Ors.

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Mohmod Nadeem v. the State of Assam and 6 Ors.

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