Kamal Ch Das and 4 Ors. Vs the State of Assam and 4 Ors.

RESIDENT OF VILLAGE BARGAON PO TIHU DIST NALBARI ASSA VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR GUWAHATI 6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER NALBARI NALBARI ASSAM 4:THE DEPUTY INSPECTOR OF SCHOOLS NALBARI NALBARI ASSAM 5:THE DEPUTY COMMISSIONER NALBARI PO PS AND DIST NALBARI ASSA

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Advocate for the Petitioner : , MS L HMAR,MR. M R CHOUDHURY,MR. K KALITA,MR. I H SAIKIA

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Advocate for the Respondent : GA, ASSAM, SC, ELEM. EDU

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Linked Case : WP(C)/5627/2020

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PULAK MAZUMDAR AND 4 ORS S/O- LT. ARUN CHANDRA MAZUMDAR R/O- VILL- AND P.O. NIZ NAMATI DIST.- NALBARI ASSAM 2: LOHIT CH. DAS @ LOHIT DAS S/O- LT. BAIKUNTHA DAS R/O- VILL AND P.O. TERECHIA DIST.- NALBARI ASSAM 3: NILAKANTA MEDHI S/O- LT. BHUBANESWAR MEDHI R/O- VILL- KACHUA P.O. KACHUA PATHAR DIST.- NALBARI ASSAM 4: PRAKASH KAKATI S/O- MADHURAM KAKATI R/O- VILL- JOWARDI P.O. KAITHALKUCHI DIST.- NALBARI ASSAM 5: PARAMANANDA DEKA S/O- LT. SATALU DEKA R/O- VILL- KENDUKUCHI P.O. BARKHANAJAN DIST.- NALBARI ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPTT. DISPUR GHY-6 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER NALBARI P.O.

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P.S. AND DIST.- NALBARI ASSAM 4:THE DY. INSPECTOR OF SCHOOLS NALBARI P.O. P.S. AND DIST.- NALBARI ASSAM 5:THE DY. COMMISSIONER NALBARI P.O. P.S. AND DIST.- NALBARI ASSAM -----------Advocate for : MR. K N CHOUDHURY Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 4 ORS

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:::BEFORE:::

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HON’BLE MR. JUSTICE KARDAK ETE

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Date on which judgment is reserved : 20.11.2025
Date of pronouncement of judgment : 02.12.2025
Whether the pronouncement is of the
Operative part of the judgment : Yes
Whether the full judgment has been
Pronounced : No

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Judgment & Order (CAV)

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Heard Mr. K. N. Choudhury, learned Senior Counsel assisted by Mr. I. H. Saikia, learned counsel for the petitioners and Mr. N. J. Khataniar, learned

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Standing Counsel, Elementary Education, Assam for the respondents.

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2. By filing these present writ petitions, the petitioners have assailed the Minutes of the Committee, dated 16.05.2020 and order dated 10.06.2020, issued by the Commissioner and Secretary to the Government of Assam, Elementary Education Department, whereby the claim of the petitioners has been rejected with regard to reinstatement in service as teachers of LP and ME schools in the District of Nalbari. The petitioners also challenges the orders dated 16.07.2001, passed by the Director of Elementary Education, Assam; order dated 17.07.2001, passed by the Deputy Inspector of Schools, Nalbari; order dated 19.07.2001, passed by the Director of Elementary Education; order dated 21.07.2001 passed by the District Elementary Education Officer, Nalbari; letter dated 24.01.2017 of the Government, by which the appointments of petitioners have been cancelled. The petitioners have also prayed for a direction to the respondent authorities to reinstate them in service with effect from the date of their termination and to allow them to resume duties in their respective schools and to release their arrear salaries from the date of their initial joining in service until their reinstatement, along with admissible interest.

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3. Having considered that issues involved in these writ petitions are similar on facts and law, the same were heard analogously and are disposed of by this common judgment and order.

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4. As has been noted in the earlier proceedings, these cases have its, yet another, long drawn litigations and chequered history as the matter involved multiple litigations and gave rise to several Court cases regarding the appointment of OBB teachers in Nalbari District, Assam.

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5. The petitioners in W.P.(C) No. 5627/2020 were appointed as L.P. School teachers against 288 sanctioned posts and the petitioners in W.P.(C) 5641/2020 were appointed as M.E. School teachers against 140 sanctioned posts in Nalbari District, alongwith Patacharkuchi Block of Barpeta district, under the Operation Black Board (OBB) scheme in the State of Assam.

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6. Briefly put, an advertisement dated 28.12.1996 was published inviting applications for filling up the posts of Assistant Teachers in L.P., M.E., M.V., M.E.M., Jr. and Sr. Basic Schools. Being eligible, the petitioners applied for the posts and appeared in the interviews held on January 1997. Subsequently, a ban was imposed upon any appointment in the State of Assam. In the meantime, the Government of India launched the OBB scheme and sanctioned the creation of 7066 posts for L.P. and Middle School teachers in Assam vide order dated 08.03.2001. From the newly created posts under the OBB scheme, 288 posts were allotted for L.P. Schools and 140 posts were allotted for M.E. Schools in Nalbari District and Patacharkuchi Block under Barpeta District.

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7. On 08.03.2001, the Secretary to the Government of Assam, Education Department, issued a W.T. message to all District Elementary Education Officers and Deputy Inspectors of Schools, lifting the ban on appointments under the Operation Blackboard (OBB) scheme and directing that no new applications be called and that candidates who had already applied would be called for interview. On 09.03.2001, the Sub-Divisional Level Advisory Board, on the basis of the earlier interviews, prepared and approved select lists for appointment and the names of the petitioners appeared in these approved lists.

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8. Pursuant thereto, the petitioners were appointed and joined their respective schools. Subsequently, allegations arose that excess appointments had been made against the allotted posts. On that basis, the Deputy Commissioner, Nalbari, conducted an enquiry through the Additional District Magistrate, who submitted a report before the Deputy Commissioner/District Magistrate, Nalbari, on 05.06.2001. Thereafter, the Deputy Commissioner, Nalbari, vide letter dated 11.06.2001, forwarded the report to the Commissioner and Secretary to the Government of Assam, Elementary Education Department, who, vide letter dated 04.07.2001, directed the Director of Elementary Education, Assam, to cancel the excess appointments and furnish the list of genuinely selected candidates. Pursuant thereto, the Director of Elementary Education, Assam, vide order dated 16.07.2001 and 19.07.2001, directed the Deputy Inspector of Schools and the District Elementary Education Officer, Nalbari to cancel all appointments. For the purpose of the enquiry, on 21.04.2001, the Additional Deputy Commissioner, Nalbari, had seized several original documents from the office of the Deputy Inspector of Schools and the District Elementary Education Officer, Nalbari. Thereafter, the Deputy Inspector of Schools, Nalbari and the District Elementary Education Officer, Nalbari vide the orders dated 17.07.2001 and 21.07.2001, cancelled all the appointments.

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9. Being aggrieved by the action of the respondent authorities in cancelling their appointments and withholding their salaries, the petitioners, along with several similarly situated teachers, approached this Court through multiple writ petitions, including WP(C) No. 6469/2001 and other analogous petitions. This Court, by a common judgment and order dated 04.12.2001, disposed of the said writ petitions directing the Government of Assam to initiate an enquiry to

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be completed by 15.01.2002 to determine the genuineness of the selection and appointment and to identify the candidates who were genuinely selected, and to allow them to join their respective schools as per their earlier appointment orders. The Court further directed that the payment of salaries to such genuinely appointed candidates should be considered within 15.02.2002.

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10. The District Elementary Education Officer, Nalbari, vide communication dated 22.05.2003, informed the Secretary, Education Department, that 105 teachers appointed under the OBB scheme were legally appointed in accordance with the approval of the then Sub-Divisional Advisory Board, Nalbari, in 2001. It was further communicated that, apart from these legitimately appointed teachers, over 475 excess appointments had been made by the then appointing authority. The 105 legitimately appointed teachers were recruited in accordance with the resolution of the Sub-Divisional Advisory Board, and the constituencywise approved list of candidates was enclosed with the said communication. The names of all the petitioners appeared in the approved list.

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11. As the authorities were not taking any effective steps despite repeated approaches, some aggrieved candidates approached this Court by filing WP(C) No. 8299/2004, challenging their termination, seeking regularization of their services and payment of their salaries. This Court, by judgment and order dated 12.12.2007, disposed of the writ petition, directing the respondent authorities to take appropriate action and that the Committee shall submit its report as expeditiously as possible, not later than three months, with the condition that aggrieved petitioners would be entitled to approach the appropriate forum.

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12. On 04.08.2010, all the original records were seized by the Director. On 13.08.2010, a meeting of the Enquiry Committee was held in the office chamber of the Director of Elementary Education, to verify the genuine teachers appointed in 2001 under the OBB scheme in Nalbari District. Upon examination of the photocopy of the documents, the Committee observed that the appointment of certain petitioners appeared to be doubtful. However, no opinion was expressed regarding 140 genuine appointments made in the M.E. Schools and 280 appointments made in the L.P. Schools. Subsequently, based on an R.T.I. application filed by one of the petitioners, the Director of Elementary Education, Assam, vide letter dated 07.10.2011, sought information from the District Elementary Education Officer and the Deputy Inspector of Schools, Nalbari. In response, on 13.10.2011, the District Elementary Education Officer, Nalbari, informed that in Nalbari District 105 persons were appointed as M.E. School teachers and the Deputy Inspector of Schools, informed that 280 persons were appointed as L.P. School teachers, after due selection and approval by the Sub-Divisional Level Advisory Board.

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13. The petitioners immediately approached the authorities seeking withdrawal of their respective cancellation orders dated 27.07.2001 and 17.07.2001 and prayed for reinstatement in service. In response, the authorities vide letter dated 16.11.2011, requested the Commissioner & Secretary, Elementary Education and the Director of Elementary Education, to take necessary action for resolving the issues regarding the genuinely appointed teachers. Subsequently, one of the petitioners submitted an application under the R.T.I. Act seeking information regarding the availability of the Proceeding Register of the selection process for appointment of teachers in the L.P. and M.E. Schools in

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Nalbari District under the OBB Scheme during the year 2001. The Deputy Inspector of Schools, Nalbari, vide his letter dated 09.01.2012, informed the petitioners that the said Proceeding Register had been submitted to the District Elementary Education Officer, Nalbari, vide letter dated 23.03.2001 by the then Deputy Inspector of Schools, Nalbari.

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14. Vide notification dated 25.04.2013, the Chief Secretary to the Government of Assam constituted a “One Man Committee” to examine issues relating to school and college education, including problems faced by teachers and to suggest measures to improve education at the primary, secondary, higher, and technical levels. The committee observed that, although the Government had from time to time constituted enquiry committees headed by the DEE, Assam, to identify genuinely appointed teachers, the findings of these committees were not sufficient to enable the taking of an appropriate decision. The committee recommended that the seized documents currently available with the DEE, Assam, should be examined by the Government through a newly constituted Committee, with the objective of tracing the genuinely appointed teachers within one month. It was further noted that the list submitted by the DIS, Nalbari, vide letter dated 16.11.2011 for UP Schools, would also be examined, taking into consideration all relevant judicial pronouncements.

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15. As there was no positive response from the authorities the petitioners approached this Court by filing WP(C) No. 5957/2011 and WP(C)6214/2011 and batch of writ petitions. However, the said writ petitions were dismissed on 20.05.2014 against which they preferred WA No. 246/2014 and WA No. 247/2017. Upon admission of the writ appeal, this Court, vide order dated

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03.05.2016, directed the respondents to produce the enquiry report in accordance with the order dated 04.12.2001 passed in WP(C) No. 6469/2001 and connected cases. During the pendency of the writ appeal, the Government of Assam, through the Elementary Education Department, constituted another Committee vide notification dated 08.02.2016 to identify the genuinely selected candidates for appointment under the OBB scheme in undivided Nalbari District during March 2001. Subsequently, on 09.02.2016, the Under Secretary to the Government of Assam, Elementary Education, directed the DEE, Assam, to produce the relevant documents. Thereafter, a meeting of the Committee was held on 17.02.2016, during which the Joint Secretary, Elementary Education, directed that the entire process of examination of the relevant records and documents should be completed by 22.02.2016.

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16. Vide letter dated 18.02.2016, the new Committee directed the DEE, Assam, to re-examine the relevant records and documents. Thereafter, the DEE, Assam, vide letter dated 04.05.2016, appointed Enquiry Officer and Presenting Officer. The Enquiry Officer conducted the enquiry by perusing the relevant records and hearing the concerned departmental authorities of Nalbari District and observed that all the records like allotment of posts, proceeding book of the SubDivisional Level Advisory Board, Approved Select List prepared by the said Board and the appointment of the selected candidates were available in the record. Though the documents were handed over by the then Senior Assistant on 30.11.2012, they were produced before the Directorate only on 10.03.2016. It was suggested to examine the genuineness of those documents. The enquiry report shows that all records of genuinely selected candidates are available. RTI replies dated 03.11.2011 and 26.03.2013 confirmed that no records of excess

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appointment were available with the Department.

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17. During the course of hearing of WA No. 246/2014 and WA No. 247/2014, the respondent No.1, vide letter dated 24.01.2017, conveyed the Government’s decision regarding the inability to trace the genuinely selected candidates. Therefore, WA No. 247/2014 was withdrawn on 31.01.2017, with liberty to challenge the decision. Thereafter, the petitioners filed W.P.(C) No. 2933/2017, which was tagged with W.P.(C) 2651/2017. By order dated 05.02.2018, this Court directed production of the original records on 05.03.2018, on which date, the counsel for the respondents questioned the genuineness of the records and the Court, vide order dated 18.05.2018, directed the Director of Forensic Science, Kahilipara, to examine the records. The report was submitted and on 19.11.2018 and on perusal of the same, the Court opined that prima facie the report went against the Department.

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18. W.P.(C) No. 2933/2017 along with W.P.(C) No. 2651/2017 was finally disposed of vide judgment and order dated 19.09.2019, directing the respondents to publish the report of the Committee constituted vide notification dated 08.02.2016 and take a reasoned decision regarding the petitioners’ services in accordance with the direction of this Court issued on 04.12.2001 in W.P.(C) No. 6469/2001 and batch of petitions. It was further directed that if the petitioners were genuine, they should be reinstated. However, in a meeting held on 16.05.2020, the respondents decided that the petitioners’ cases could not be considered, inter alia, due to changes in the Rule and vide order dated 10.06.2020, rejected their claims. Hence, these writ petitions.

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19. Mr. K. N. Choudhury, learned Senior Counsel for the petitioners submits that the petitioners were duly selected and appointed with the approval of the Sub-Divisional Advisory Board. They applied pursuant to advertisement, appeared in interviews, and their appointments were legitimate. Communication dated 16.11.2011 and the select list dated 20.03.2001 shows that the appointment of 280 candidates as teachers in L.P. Schools and 140 candidates as teachers in M.E. Schools are genuine, which includes the petitioners. Therefore, they have every right to continue in their services. Having fought for their legitimate rights since 2001 and being over-aged, the petitioners have suffered along with their families. In view of the fact that the proceeding book, the copy of the approved select list and the no record indicating any excess appointments were available, there is no impediment in identifying the genuinely selected and appointed candidates. In terms of the judgment and order dated 04.12.2001 passed in WP(C) No. 6469/2001 and the batch of writ petitions, the Government is duty bound to undertake the necessary exercise and to allow the petitioners to join their respective schools as per their selection and appointment.

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20. Mr. Choudhury, learned Senior Counsel, submits that despite the Court’s direction to complete the enquiry and reinstate the petitioners by 15.01.2002, the Government delayed the process even though records were available, thereby prolonging the petitioners’ suffering. The enquiry report dated 31.05.2016 does not mention anywhere that the genuinely selected and appointed candidates cannot be segregated, yet the Government, in its letter dated 24.01.2017, claimed otherwise, which is wholly perverse and contrary to the findings of enquiry and the records. While excess appointments in Nalbari

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District are undisputed, this Court had directed the respondent authorities to identify the genuine appointees and now that the selection records are admittedly available, the respondents cannot be permitted to deny the petitioners their rightful appointments.

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21. Mr. Choudhury, learned Senior Counsel, submits that the impugned decision and order dated 10.06.2020 is nothing but a reiteration of the earlier decision conveyed vide letter dated 24.01.2017 and even in the affidavit-in-opposition, the same stand has been reiterated. He further submits that the respondents, on multiple occasions, had produced the relevant records, which were also examined by the Director of Forensic Science and upon perusal, this Court had observed that the findings of the forensic report support the case of the petitioners. Mr. Choudhury further submits that, vide R.T.I. reply dated 09.01.2012, the respondents themselves admitted that all relevant records were available in the year 2001. At this stage, therefore, the genuineness of the records cannot be questioned, more so when the same were always in the custody of the respondents. Accordingly, he submits that the impugned decision and order dated 10.06.2020 is bad in law and is liable to be set aside and quashed.

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22. In support of his submissions, Mr. Choudhury, learned Senior Counsel has placed reliance on the following judgments of the Hon’ble Supreme Court:

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(i). R. S. Mittal vs. Union of India , reported in 1995 Supp (2) SCC 230 .

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(ii). P. Mahendran & Ors. Vs. State of Karnataka and Ors. , reported in (1990) 1 SCC 411 .

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(iii). Purushottam vs. Chairman M.S.E.B. & Anr. , reported in (1999) 6 SCC 49 .

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23. Mr. N. J. Khataniar, Standing Counsel, Elementary Education for the State respondents, submits that out of a total of 4510 candidates, it was difficult for the Enquiry Committee to ascertain which candidates were genuinely selected. On the basis of the report of the then Deputy Commissioner, Nalbari, the Government issued instructions vide letter dated 04.07.2001 to the Director of Elementary Education, Assam, to cancel all the appointments. Accordingly, the Director of Elementary Education, Assam, issued cancellation orders dated 16.07.2001 and consequently all the appointments were cancelled. It is an admitted fact that large-scale illegal appointments had been made and therefore, it was not reasonably practicable to identify the genuine appointments.

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24. Mr. Khataniar, Standing Counsel, submits that, since the genuineness of the petitioners’ appointments could not be ascertained by the Enquiry Committee, their claims under the OBB scheme were rightly rejected vide order dated 10.06.2020. The Enquiry Committee found it difficult to segregate the genuine candidates from the total of 4510 candidates. Moreover, more than 24 years have elapsed since the purported selection in 2001, during which time significant changes have occurred in the educational and professional qualifications and eligibility criteria for appointment as Assistant Teachers in L.P.

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and M.E. Schools, on the enactment of the Right of Children to Free and Compulsory Education Act, 2009. Therefore, he submits that the claim of the petitioners for appointment under the OBB scheme cannot be considered after more than two decades.

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25. Mr. Khataniar, Standing Counsel, further submits that this Court, in earlier proceedings in respect of the same OBB appointees of Nalbari District, namely, W.P(C) No. 4560/2008, vide judgment & order dated 21.11.2008, rejected the petitioners’ claim for reinstatement, recording that there was no interference with the order of cancellation of appointments and that an enquiry had been conducted which concluded that genuine appointments could not be segregated from illegal appointments. The said judgment has attained finality and the matter cannot be reopened in another proceedings. Similarly, the claims of the petitioners for reinstatement was also rejected vide judgment and order dated 20.05.2014 passed in WP(C) No. 6214/2011. Therefore, he submits that writ petitions may be dismissed.

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26. I have considered the submissions of the learned counsels for the parties and also perused the materials available on record.

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27. The petitioners were appointed as L.P. and M.E. School under the Operation Black Board (OBB) scheme in the State of Assam, pursuant to the advertisement dated 28.12.1996 inviting applications for filling up of the posts of Assistant Teachers after the ban of appointment was lifted on 08.03.2001 on the approval of the Sub-Divisional Level Advisory Board, on the basis of the earlier interviews after due selection process and the petitioners joined their

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respective schools in the District of Nalbari.

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28. The allegations of excess appointments had surfaced on which series of inquiries were conducted, however, no concrete findings could be arrived at on the part of respondent authorities. The appointments of the petitioners were cancelled on the basis of said allegation.

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29. Aggrieved by the action of the respondent authorities in cancelling their appointments, the petitioners and several similarly situated teachers, approached this Court by filing writ petitions, including WP(C) No. 6469/2001 and other analogous petitions. This Court, by a common judgment and order dated 04.12.2001, disposed of the said writ petitions directing the respondents to initiate an enquiry to determine the genuineness of the selection and appointment and to identify the candidates who were genuinely selected and to allow them to join their respective schools as per their earlier appointment orders and also to make payment of salaries to such genuinely appointed candidates.

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30. Records reveal that the authority particularly, the District Elementary Education Officer, Nalbari, vide communication dated 22.05.2003, informed the Secretary, Education Department, that 105 teachers appointed under the OBB scheme were legally appointed in accordance with the approval of the then SubDivisional Advisory Board, Nalbari, in 2001. It was further communicated that, apart from these legitimately appointed teachers, over 475 excess appointments had been made by the then appointing authority. The 105 legitimately appointed teachers were recruited in accordance with the resolution of the Sub-

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Divisional Advisory Board and names of the petitioners appeared in the approved list.

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31. This Court, by judgment and order dated 12.12.2007, disposed of the WP(C) No. 8299/2004 and had directed the respondent authorities to take appropriate action and that the Committee holding the field shall submit its report as expeditiously as possible, not later than three months, with the condition that aggrieved petitioners would be entitled to approach the appropriate forum. Vide notification dated 25.04.2013, the Chief Secretary to the Government of Assam constituted a “One Man Committee” to examine issues relating to school and college education, including problems faced by teachers and to suggest measures to improve education at the primary, secondary, higher, and technical levels. The committee observed that, although the Government had from time to time constituted enquiry committees headed by the DEE, Assam, to identify genuinely appointed teachers, the findings of these committees were not sufficient to enable the taking of an appropriate decision. The committee recommended that the seized documents currently available with the DEE, Assam, should be examined by the Government through a newly constituted Committee, with the objective of tracing the genuinely appointed teachers within one month. It was further noted that the list submitted by the DIS, Nalbari, vide letter dated 16.11.2011 for UP Schools, would also be examined, taking into consideration all relevant judicial pronouncements.

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32. This Court, vide order dated 03.05.2016, directed the respondents to produce the enquiry report in accordance with the order dated 04.12.2001

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passed in WP(C) No. 6469/2001 and connected cases. During the pendency of the writ appeal, the Government of Assam, through the Elementary Education Department, constituted another Committee vide notification dated 08.02.2016 to identify the genuinely selected candidates for appointment under the OBB scheme in undivided Nalbari District during March 2001. Subsequently, on 09.02.2016, the Under Secretary to the Government of Assam, Elementary Education, directed the DEE, Assam, to produce the relevant documents. Thereafter, a meeting of the Committee was held on 17.02.2016, during which the Joint Secretary, Elementary Education, directed that the entire process of examination of the relevant records and documents should be completed by 22.02.2016.

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33. Vide letter dated 18.02.2016, the new Committee directed the DEE, Assam, to re-examine the relevant records. Thereafter, the DEE, Assam, vide letter dated 04.05.2016, appointed Enquiry Officer and Presenting Officer. The Enquiry Officer conducted the enquiry by perusing the relevant records and hearing the concerned departmental authorities of Nalbari District and observed that all the records like allotment of posts, proceeding book of the Sub-Divisional Level Advisory Board, Approved Select List prepared by the said Board and the appointment of the selected candidates were available in the record. Though the documents were handed over on 30.11.2012, same were produced before the Directorate only on 10.03.2016. It was suggested to examine the genuineness of those documents. The enquiry report shows that all records of genuinely selected candidates are available. RTI replies dated 03.11.2011 and 26.03.2013 confirmed that no records of excess appointment were available with the Department.

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34. During the course of hearing of WA No. 246/2014 and WA No. 247/2014, the respondent No.1, vide letter dated 24.01.2017, conveyed the Government’s decision regarding the inability to trace out the genuinely selected candidates. Therefore, WA No. 247/2014 was withdrawn on 31.01.2017, with liberty to challenge the decision. The petitioners filed W.P.(C) No. 2933/2017, which was tagged with W.P.(C) 2651/2017. By an order dated 05.02.2018, this Court directed production of the original records on 05.03.2018 and vide order dated 18.05.2018, this Court directed the Director of Forensic Science, Kahilipara, to examine the records. The report was submitted and on 19.11.2018 and on perusal of the same, it had opined that prima facie the report went against the Department.

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35. W.P.(C) No. 2933/2017 along with W.P.(C) No. 2651/2017 was finally disposed of vide judgment and order dated 19.09.2019, directing the respondents to publish the report of the Committee constituted vide notification dated 08.02.2016 and take a reasoned decision regarding the petitioners’ services in accordance with the direction of this Court on 04.12.2001 in W.P.(C) No. 6469/2001 and batch of petitions. It was further directed that if the petitioners were genuine, they should be reinstated. However, in a meeting held on 16.05.2020, the respondents decided that the petitioners’ cases could not be considered due to changes in the Rule and vide impugned order dated 10.06.2020, rejected their claims.

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36. The petitioners were selected and appointed with the approval of the SubDivisional Advisory Board pursuant to advertisement after due selection process. Perusal of the communications of the respondent authorities dated 16.11.2011

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and the select list dated 20.03.2001 shows that the appointment of 280 candidates as teachers in L.P. Schools and 140 candidates in M.E. schools which includes the petitioners, indicates that the selection and appointments are genuine and legitimate. There would not have been any impediment in identifying the genuinely selected and appointed candidates. In terms of the judgment and order dated 04.12.2001 passed in WP(C) No. 6469/2001 and the batch of writ petitions, the respondent authorities were obligated to undertake the necessary exercise to identify and segregate the genuine appointees and to allow the petitioners to join their respective schools.

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37. The enquiry report dated 31.05.2016 does not mention anywhere that the genuinely selected and appointed candidates cannot be segregated, yet the respondent authorities by letter dated 24.01.2017, claimed otherwise, which is contrary to the findings and the records. While excess appointments in Nalbari District were not disputed, this Court had directed the respondent authorities to identify the genuine appointees. Having not done so, in my considered view, the respondents cannot deny the petitioners their right of appointments inasmuch as despite the Court’s direction to complete the enquiry and reinstate the petitioners by 15.01.2002 and availability of the selection records, the authorities appears to have delayed the process and the petitioners have been made to suffer.

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38. Records reveal that the respondents authorities, on various occasions, had produced the relevant records, which were also examined by the Director of Forensic Science, and upon perusal, this Court had observed that the findings of the forensic report support the case of the petitioners as the respondents

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themselves admitted that all relevant records were available in the year 2001. Thus, it would be too harsh and unacceptable at this distant point of time, to question the genuineness of the records when the same were always in the custody of the respondents. Careful perusal of the impugned decision and order dated 10.06.2020, reflects that the same appears to be mere reiteration of the earlier decision conveyed vide letter dated 24.01.2017, after which this Court has directed to consider the grievances of the petitioner. Thus, this Court finds the impugned decision and order are absolutely unsustainable as the basis of the impugned decision and order is only on the difficulty to segregate the genuine candidates from the total of 4510 candidates and more than 24 years have elapsed since the selection in 2001, during which time significant changes have occurred in the educational and professional qualifications and eligibility criteria for appointment as Assistant Teachers in L.P. and M.E. Schools, on the pretext coming into force of the Right of Children to Free and Compulsory Education Act, 2009, whereas the respondent themselves allowed to prolong the matter despite availability of selection records.

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39. The contention of the respondents that this Court, in earlier proceedings in respect of the same OBB appointees of Nalbari District, vide judgment & order dated 21.11.2008 in W.P(C) No. 4560/2008 and order dated 20.05.2014 passed in WP(C) No. 6214/2011, rejected the petitioners’ claim for reinstatement, which has attained finality and the matter cannot be reopened in another proceedings, is considered for rejection for the simple reason that this court subsequently, in W.P.(C) No. 2933/2017 and W.P.(C) No. 2651/2017 vide judgment and order dated 19.09.2019, directed the respondents to publish the report of the Committee constituted vide notification dated 08.02.2016 and take a reasoned

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decision regarding the petitioners’ services in accordance with the direction of this Court issued on 04.12.2001 in W.P.(C) No. 6469/2001 and batch of petitions and if the petitioners were genuine, they should be reinstated.

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40. It is true that a selected person has no vested right to be appointed to the post for which he has been selected but has a right to be considered for appointment. At the same time, the appointing authority cannot ignore the select list or decline to make the appointment on its whims. When a person has been selected by the Selection Board, ordinarily, there is no justification to ignore him/her for appointment. There has to be a justifiable reason to deny to appoint a person who is on the select list. In the present case, there is no dispute that the petitioners were appointed after due process of selection and the cancellation of their appointments were on the allegation of excess appointment, the issue which could have been resolved by segregating the genuine appointees from the bad appointment, if at all, for which the respondent authorities had ample opportunity and authority based on the records.

¶108

41. In my view, there has been a mere inaction on the part of the respondent authorities to segregate the genuinely selected and appointed candidates despite ample opportunity and availability of records. At this distant point of time, after multiple litigations, inquiries and various directions of this court for consideration of the matter, rejection of the claim of the petitioners on the ground of difficulty to segregate the genuine candidates and more than 24 years have elapsed since the selection in 2001, during which time significant changes have occurred in the educational and professional qualifications and

¶109

Page No.# 24/24

¶110

eligibility criteria for appointment as Assistant Teachers in L.P. and M.E. Schools, on the pretext of enactment of the Right of Children to Free and Compulsory Education Act, 2009 would be unjustified and thus, unsustainable.

¶111

42. In view of discussion made hereinabove, I am of the considered view that the impugned decision and order dated 16.05.2020 and 10.06.2020 are unjustified and not sustainable. Accordingly, the impugned decision and order dated 16.05.2020 and 10.06.2020 are hereby set aside and quashed. Consequently, all the orders including cancellation of appointment orders, are also set aside.

¶112

43. As a result, the petitioners are entitled to be reinstated in service as teachers of LP and ME schools in the District of Nalbari in terms of the selection and appointment made pursuant to the advertisement dated 28.12.1996. Accordingly, the respondent authorities are directed to reinstate the petitioners in their services without back wages following the principle of no work no pay, however, with seniority and other entitlements as may permissible under the law.

¶113

44. The writ petitions are allowed and disposed of, accordingly. However, no order as to cost(s).

¶114

JUDGE

¶115

Comparing Assistant

Kamal Ch Das and 4 Ors. v. the State of Assam and 4 Ors.

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Kamal Ch Das and 4 Ors. v. the State of Assam and 4 Ors.

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