High Court
Case Details
WP(C) 5488/2008 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. A. Dhar, the learned Counsel appearing for the petitioner. The respond ents 1, 2 & 3 are represented by Mr. A. Deka, learned Standing Counsel, Educati on Department. Ms. B.D. Sarma, learned Standing Counsel, Social Welfare Departme nt appears for the respondents 5 & 6. Although names of the lawyers for the resp ondent No.7 are reflected in the cause list, they are absent. 2. The petitioner is an orthopaedically impaired candidate and appl ied for appointment to Grade-III post in the Education department. In the Select List published on 28.2.2006 by the Directorate of Social Welfare, Assam, Roll N o.202 (instead of 201) was mistakenly shown and accordingly the name of Jitu Sar ma (respondent No.7) was inadvertently reflected as the selected person. But thr ough the Corrigendum dated 22.6.2006 (Annexure-C), the Director clarified that, Roll No.202 was wrongly printed in the Select List and the candidate with Roll N o.201 is the selected candidate. Consequential correction of the Select List was made and since the petitioner was the candidate with Roll No.201, he was appoin ted as an Assistant Teacher in the Saurachara Janapriya L.P. School, through the appointment order dated 20.8.2007 (Annexure-E).
Decision
3. But in the meantime, the respondent No.7 Jitu Sarma who was the candidate with Roll No.202 and who was not entitled for appointment because of t he Corrigendum dated 22.6.2006 (Annexure-C), filed the WP(C) 2415/2007 where he claimed that he was selected for appointment as a physically handicapped person and although his name appeared at Sl. No.6 of the Select List, steps for appoint ment have not been taken. Accordingly through the Court’s order dated 23.5.200 7 (Annexure-G), direction was issued to make appointment strictly in accordance with the Rules by adhering to the merit position as per the Select List dated 28 .2.2006. In his petition, the respondent No.7 did not disclose about the Corrige ndum made the Select List on 22.6.2006 and the fact that the roll number of the respondent No.7 was substituted in the Select List by the Roll No.201 of the pet itioner. 4. As the petitioner did not receive any salary after his appointme nt he filed the WP(C) 4699/2008, which was disposed of on 1.12.2008 (Annexure-F) . In the Court’s order, the Corrigendum dated 22.6.2006 to the Select List, wher eby the Roll No.202 substituted by the petitioner’s Roll No.201 was noted. Refer ence to the Court’s proceeding in the WP(C) 2415/2007 filed by the respondent No .7 was also made. The Court through its order dated 1.12.2008 disposed of the WP (C) 4699/2008 by permitting the petitioner to continue in service till consequen tial order(s) are passed. The salary of the petitioner for the services rendered was also ordered to be paid. If the authority cancels the petitioner’s appointm ent, he was given the liberty to challenge the same. 5. In purported compliance of the Court’s order dated 23.5.2007 (An nexure-G) in the WP(C) 2115/2007, the Commissioner and Secretary to the Governme nt of Assam, Education (Elementary) Department passed an order on 20.9.2008 (Ann exure-G/1) whereby despite noting the replacement of the respondent No.7’s Roll Number with that of the petitioner in the Select List, direction was issued to c ancel the petitioner’s appointment and to appoint the respondent No.7 Jitu Sarma as a selected person. Consequential order was issued on 11.12.2008 (Annexure-H) , whereby the petitioner’s appointment was cancelled and the respondent No.7 was appointed as a teacher in the Saurachara Janapriya L.P. School. 6. In the counter affidavit filed by the DEE, Assam on 23.3.2009 no explanation is given for appointment of the non-selected respondent No.7, whose Roll Number substituted in the Select List dated 28.2.2006 by the Director of S ocial Welfare, Assam. Ms. B.D. Sarma, learned Standing Counsel, Social Welfare D epartment however submits that because of the Corrigendum, the petitioner should be considered as the selected candidate, since the Roll Number of the responden t No.7 was struck off, as can be gathered from the Corrigendum issued on 22.6.20 06 (Annexure-C). 7. This Court in the WP(C) 2415/2007 filed by Jitu Sarma (responden t No.7) mistakenly proceeded on the basis of that the respondent No.7 was select ed for appointment in Grade-III post in the Education Department but the Court never directed for appointment of any non-selected person. Nevertheless, the Cou rt’s order dated 23.5.2007 was made the basis for cancellation of the appointmen t of the selected candidate and for appointment of a non-selected person. It is must be noted that the respondent No.7 never challenged the Corrigendum whereby his name was replaced by the writ petitioner and in fact in the WP(c) 2415/2007 filed by him, the correction of the Select List was suppressed and the responde nt No.7 wrongly projected himself to be a selected candidate. 8. Even the Commissioner, Education despite noting the substitution of the respondent No.7 by the petitioner through the Corrigendum dated 22.6.200 6 ordered cancellation of appointment of the petitioner who was the selected can didate and directed appointment of the non-selected respondent No.7, by ignoring the consequence of the correction made in the Select List. 9. This Court never directed for appointment of a non-selected pers on and was careful in directing appointment in strict adherence to the merit pos ition in the Select List. Therefore since the Roll Number of the respondent No.7 mistakenly reflected and the Select List was corrected subsequently, it is obvi ous that the respondent No.7 could not have been considered as a selected person to make him eligible for appointment. But ignoring that it is the petitioner wh o is the selected person, cancellation of his appointment was ordered and appoin tment of the non-selected respondent No.7 was made in place of the petitioner. T he final Select List as has been appended in the petitioner’s additional affidav it as per the information provided under the RTI Act, 2005 shows that the petiti oner’s name with his Roll No.201 is at Merit Position No.10 whereas the name of the respondent No.7 Jitu Sarma with his Roll No.202 is at Merit Position at 165. Therefore it is apparent that the respondent No.7 can’t claim a better right th an the petitioner and there can be no justification for the appointment of the r espondent No.7 by cancelling the petitioner’s appointment, who undoubtedly was t he selected candidate. 10. Having regard to all the above circumstances, I find sufficient force in the challenge to the impugned order darted 20.9.2008 (Annexure-G/1) and the consequential order dated 11.12.2008 (Annexure-H) and accordingly the said order(s) are declared to be unsustainable in law and are quashed. Consequently the petitioner is ordered to be reinstated in service. The appointment of Jitu S arma whose Roll Number was mistakenly enlisted in the Select List, is ordered to be cancelled. Consequently the departmental authorities should ensure that the petitioner is paid his salary for the services rendered. 11. der on cost. With the aforesaid direction, the case is allowed without any or