High Court · 2012

Since the basic issues involved in these appeals are identical, for the sake of brevity, only some of the facts referred to in W.A. No.55 of 201 2 and W.P(C) No.5346 of 2010 may be stated. It is the case of the petitioners th at on the basis of an advertisement published in Assamese daily (cid:28)Dainik Janambhu mi (cid:29) dated 28.12.1996 issued by the Government of Assam for filling up of 7500 po sts of Assistant Teachers in various Primary/Middle English/Middle English Madra ssa Schools, the writ petitioners who belong to Dibrugarh District had applied f or the same. According to the petitioners, the Sub-Divisional Level Advisory Boa rd, Dibrugarh District, selected the petitioners for appointment after interview ing them vide their proceeding dated 23.02.2001 as Assistant Teachers vide order s dated 12.3.2001. It was the case of the petitioners that the petitioners were dul [3] y selected by following rules and procedures as laid down by the Government of A ssam, by the Sub-Divisional Level Advisory Board, Dibrugarh District and they w ere appointed against 145 posts out of 4040 posts of Assistant Teachers created in 2000 under Operation Black Board (OBB). According to the petitioners, 145 po sts had remained un-filled out of 4040 posts, which were filled up by the writ p etitioners and others on the basis of recommendation of the Sub-Divisional Level Advisory Board, Dibrugarh, and to their utter shock and surprise, their service s were cancelled by orders dated 13.3.2001 without giving any notice to the peti tioners. Being aggrieved by the aforesaid act of the respondents in cancelling t he appointment of the writ petitioners, they filed the writ petition being W.P(C ) 5346 of 2001. The said writ petition, W.P(C) No.5346/2001 was heard along with W.P(C) No.3571/2001, W.P(C) No.5385 of 2001 and Cont.Cas(C) No.463 of 2001. In the said connected writ petition being W.P(C) No.3571/2001, a n affidavit was filed by one Sri Bhaba Kanta Das, the then District Elementary Education Officer. By taking cognizance of the aforesaid affidavit, the learned Single Judge observed as follows:- A reading of the aforesaid affidavit would go to show that against 60 s (cid:28) anctioned/allotted posts of OBB teachers in Dibrugarh District appointments to t he extent of 257 numbers of teachers were made. To make available the excess pos ts against which appointments were made, resort was had to an order dated 26.2. 2001 by which 145 posts of OBB teachers created in the year 1998 were retained u pto 28.2.2001. The said order dated 26.2.2001 was construed to be an order of fr esh creation of the aforesaid 145 posts. Even then, the number available i.e. 20 5 (145+60) was exceeded by making 357 appointments. In the affidavit, it has bee n further stated that no selection or interviews were held of any candidate; in fact, no call letters were issued. The original and that translated copy of res olutions of the Selection Committee which have been enclosed as Annexures-4 and 5 to the writ petition has been explained in the affidavit filed to be a mere li st of candidates compiled without holding any selection on 12.3.2001. Resolution No.5 of the said meeting, it has been stated in the affidavit filed, was forcef ully inzserted in Guwahati on the next day i.e. 13.3.2001 by the Chairman of the Selection Board who also happened to be a Minister of the State Government. In the affidavit filed, it has been further stated that the deponent who was then the District Elementary Education Officer, Dibrugarh, was forced and pressurized to sign all the appointment orders which were accordingly signed by him under duress on 13.3.2001 by giving the date as 12.3.2001. This, it is stated happened in a particular hotel in Guwahati. In the affidavit filed, it has been further stated that onve the duress and coercion was removed, on the same date, i.e. 13. 3.2001 the cancellation of the appointments were made and leaving aside 51 valid appointment in Dibrugarh District all other appointments were cancelled. The p etitioners, all them, come within the aforesaid category of illegal appointees w ho had procured their appointment orders in the aforesaid manner. In the affidavit filed, it has been further stated that the version put forward by the petitioners of having joined in the posts in which they were appo inted on 13.3.2001, in the true and correct fact of the case, is false and the p etitioners had not rendered any service whatsoever entitling them to any protect ion under the law. Another significant fact that must be taken note of is the actual number of persons appointed. Though the District Elementary Education Officer in his affidavit filed in W.P(C) No. 3571/2001 has mentioned the same number as 257, in the writ petitions under consideration there are 296 petitioners. There are pos sibly more similar persons in other petitions which are not listed, a fact alrea dy observed in the earlier order of the Court dated 13.3.2007. Such additional n umber of appointees (beyond 257) can only explained on the basis of forged and f abricated letters of appointments, a fact stated by the District Elementary Educ ation Officer in his affidavit filed in the proceeding registered and numbered a s W.P(C) No.5385/2001. (cid:29) [4] In Writ Appeal No.55 of 2012, the Director of Elementary Educati on Assam, respondent No.3 also filed an affidavit on 13.9.2012 which may be refe rred to briefly for proper appreciation of the stand of the official respondents . In the said affidavit-in-opposition filed by the respondent No.3 , it has been stated that in the year 1996, an advertisement was issued by the D irectorate of Elementary Education, Assam for filling up of 7500 posts of teache rs in the provincialised Elementary Schools ( both lower primary and upper prima ry) and all the said advertised posts were filled up during year 1998-99 and no vacant post remained unfilled. Subsequently, during the 9th Plan Period, the Ed ucation Department created 4040 number of posts of Assistant Teachers for prov incialised Middle Schools (upper primary) under the Centrally Sponsored Scheme of Operation Black Board (commonly known as OBB 4040 Scheme). Out of the aforesa id 4040 posts under said scheme, 145 posts of Assistant Teachers for Middle scho ols were allotted to the Dibrugarh District which were duly filled up. Thereafte r, in 1999, the Finance Department issued an office memorandum on 6.12.1999 impo sing a ban on appointment in all departments including Education Department. Sub sequently, an order was issued on 7.7.2000 directing that all the teachers appoi nted under the OBB 4040 Scheme should be adjusted against the existing vacancie s in the terminal year of the 9th Plan as the posts under the said Central Spon sored Scheme would be abolished by the end of the said Plan period. It was also further directed that if there be any vacancy or if any vacancy arises, the same shall stand abolished. Later, in the year 2001, the Government decided to lift the ban on appointment only in respect of the fixed pay teachers for appointmen t to LP and ME/MV/MEM posts created under Operation Black Board (OBB). However, it was decided that for the said recruitment, no new applications will be calle d for and only the candidates who had earlier applied would be called for interv iew. It was also mentioned that these appointments would be for a period upto 3 1.3.2002 and would stand terminated on 31.3.2002. In terms of the aforesaid dec ision to lift the ban for appointment under fixed pay, the Government created 7 066 numbers of posts of Assistant Teachers of Elementary Schools (for both low er primary and upper primary) under OBB scheme which were to be abolished on 31 .3.2002. Out of the aforesaid 7066 posts, 60 posts of Assistant Teachers were a llotted to Dibrugarh District which carried a fixed pay of Rs.2000/- per month. Another 100 posts of Assistant Teachers which carried a fixed pay of Rs.1800/- w ere also allotted to Dibrugarh District for appointment in lower primary schools . All these posts were, however, to be terminated with effect from 31.3.2002. Out of the aforesaid 60 posts of Assistant Teachers of Middle sc hools for Dibrugarh District, 9 posts were re-alloted to Tinsukia District, thus leaving only 51 posts of fixed pay under OBB scheme of Middle School (Upper Pri mary). Similarly, out of 100 posts of Assistant Teachers of Lower Primary School s, 13 posts were re-allotted to Tinsukia District, thus leaving only 87 posts of fixed pay. The District Level Elementary Teacher Selection Board of Dibrugarh D istrict constituted on 23.02.2001 with the then State Minister of Health and Fam ily Welfare of Assam, Shri Bhaben Baruah, as its Chairman held its meeting on 12 .3.2001 for selection for 51 candidates against 51 allotted posts of fixed pay A ssistant Teachers for Middle School (Upper Primary) for Dibrugarh District. Sim ilarly, the said Selection Board also selected 87 candidates for 87 allotted po sts of fixed pay OBB Assistant Teachers of Lower Primary schools for Dibrugarh D istrict. However, the said Selection Board inspite of the ban on appointm ent to regular vacancies, prepared a select list of 215 candidates for Lower Pri mary school in regular vacancies on anticipation that Government will lift the b an very soon (vide Resolution No.4 of the said meeting). The affidavit further s tates that, apart from that the Chairman of the Selection Board on the night of 13.3.2001 unilaterally inserted the names of 252 candidates for appointment in u pper primary schools of Dibrugarh District stating that these appointments were against 145 posts under OBB Scheme even though the said 145 posts had been alrea dy filled in the year 1999 as mentioned above. The affidavit further states that it was reported by the then District Elementary Education Officer of Dibrugarh District, Shri Bhaba Kanta Das that he was forced to sign the appointment letter s of these 252 candidates giving 12.3.2001 as the date of appointment under dure ss and threat. It was further stated that after returning back to Dibrugarh, he cancelled all these appointment orders vide orders dated 13.3.2001 since there w as no vacant posts under OBB 4040 Scheme as these had been already filled up in the year 1999. Therefore, in substance, the contention of the State respondent s is that not only there was no vacancy existing under the OBB scheme at the re levant time in 2001 but also the aforesaid appointment letters dated 12.3.2001 w ere a product of malpractice as stated above. [5] This batch of writ appeals have been tagged along with PIL No.57 of 2007 which was disposed of by this Court on 06.4.2011 considering the fact t hat on the basis of police investigation made in connection with the irregularit ies committed in the appointment of teachers under OBB scheme in Dibrugarh Distr ict, charge-sheets were filed against six persons including the then Chairman of the Selection Board, namely, Shri Bhaben Baruah. The said PIL was initiated suo -moto by this Court on the basis of an observation made by the learned Single Ju dge on 08.6.2007, which is reproduced hereinbelow:- ’’ The aforesaid writ petitions were disposed of by order dated 7.6.2007. This further order has been necessitated on account of the facts stated in the earlie r order of this Court dated 13.3.2007 and the report of the Superintendent of Po lice, Dibrugarh, which has been received today (8.6.2007). This order, therefore , would be understood to be in continuation of this Court’s order dated 13.3.200 7. The report submitted by the Superintendent of Police, Dibrugarh, speaks for itself and, prima facie, vindicates the facts already recorded in the orde r dated 13.3.2007. The said report of the Superintendent of Police, Dibrugarh wo uld go to show that due interrogation of the officials of the office of the Di strict Elementary Education Officer, Dibrugarh, names and particulars of which o fficials are mentioned in the said report, indicates gross anomalies in the ap pointment process with which the writ petitions disposed of yesterday are conce rned. The report of the Superintendent of Police further goes to show that there has been gross abuse of the powers by functionaries of the State and that the a ppointments in question were made under coercion and duress. It is my considered view that in the above facts and circumstances the m atter relating to the appointment in question should be investigated further by registration of a criminal proceeding against the wrong doers. It is also my con sidered view that such wrong doers who are employees of the State should be proc eeded departmentally is the same has not been done. However, orders to the above effect and monitoring the progress of the investigation and departmental enquir y can only be done by means of a suo motu public interest litigation. I, therefore, direct the office to place this matter before the Hon’ble Chief Justice on the Administrative side for his Lordship’s consideration as t o whether in the light of the facts stated in the order dated 13.3.2007 of the C ourt and the report of the Superintendent of Police, Dibrugarh, a suo motu Publi c Interest Litigation should be initiated. (cid:29) The fact that the police investigation was conducted and charge- sheets were filed against the concerned persons shows prima-facie existence of i rregularities in the recruitment process relating to the appointments of the pre sent writ petitioners/ appellants. [6] From the above discussion, two issues emerges for consideration. Firstly, whether there were vacancies available under the OBB scheme when the p etitioners were appointed on 12.3.2001 as claimed by the petitioners and secondl y, whether such appointments of the petitioners were a result of malpractices as claimed by the respondents authorities. It is now well settled that for any valid appointment to be made , there must be a vacancy, either regular or temporary. No appointment can be ma de without there being a vacancy, though the nature of the vacancy may vary. It may be apposite to refer to the decision of the Supreme Court in Ashwani Kumar v. State of Bihar, (1997) 2 SCC 1, which was dealing with a case where appointm ents were made in excess of the sanctioned posts. The Supreme Court held that : (cid:28)12. & & & &.But as both the learned Judges constituting the Division Bench, namely , K. Ramaswamy, J. and Hansaria, J. proceeded on the accepted position on record that Dr Mallick unauthorisedly appointed 6000 employees on the sanctioned 2250 posts we will proceed on that basis. It becomes, therefore, clear that at least 3750 employees were drafted in the Scheme by Dr Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that whe n these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses & & & & & & & & & & & & & & & The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome gue sts. They were all persona non grata and were not employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees a s made by Dr Mallick in the Tuberculosis Eradication Scheme were ex facie illega l. As they were contrary to all recognised recruitment procedures and were highl y arbitrary, they were not binding on the State of Bihar & & &. (cid:28) In the present case, though the petitioners contend that there w ere 145 vacancies under the OBB scheme against which the petitioners were appoin ted, the State Respondents stated that there were no vacancies and the so called 145 vacancies had been already filled up in the year 1999. Therefore, if there were no vacancies as contended by the State Respondents when the petitioners wer e allegedly appointed on 12.3.2001, their appointment can not be obviously susta ined. This issue whether there were vacancies at the relevant time has to be asc ertained by the State authorities and not by this Court. Apart from the issue of existence or lack of vacancy for appoint ment, there is a more serious issue of the allegation of malpractices adopted in the procedure of selection relating to the appointments of the petitioners. Th e then District Elementary Education Officer of Dibrugarh District, Shri Bhaba K anta Das had filed an affidavit narrating the manner in which the appointment or ders were issued in respect of the 252 candidates at the instance of the Chairma n of the Selection Board on 13.3.2001 in an illegal manner which assertion was r eiterated by the authorities in their affidavit filed before this Court in thes e proceedings on 13.9.2012. The learned Single Judge, being prima-facie satisfied with the s eriousness of the allegations about the illegal appointment of the 252 posts, ha d passed the order dated 8.6.2007 in W.P(C) No.3571/2001, W.P(C) No.5346/2001, W .P(C) No.5385/2001 and the Cont.Cas(C) No.463 of 2001, which ultimately led to t he institution of PIL No.57 of 2007 suo moto by this Court. The investigation ma de so far by the police resulting in the filing of charge-sheets against six p ersons including the then Chairman of the Selection Board clearly establishes pr ima-facie case of irregularity. The learned Single Judge, after hearing the learned counsel appe aring for the parties and on perusal of the relevant records, held as follows:- (cid:28) A consideration of the cases pleaded by the petitioners and what has bee n stated by the District Elementary Education Officer, Dibrugarh, in the affidav its filed, as noticed above, give rise to two conflicting versions relating to t he appointments in question. While the petitioners assert such appointments to b e legal and justified in law, the appointing authority contends to the contrary. The Court exercising jurisdiction under Article 226 of the Constitution will no t be in a position to decide the correctness of either of the versions. While of the aforesaid two versions is correct; what are the facts and circumstances su rrounding the appointments of the petitioners are questions that will require a detailed consideration of several facts and particularly the records. It is not known to the Court whether any enquiry in the matter was held by the Department, though, as noted in the earlier order of this Court, the Department had repeate dly represented about some enquiry being made without, however, informing the Co urt of the outcome of such enquiry/enquiries. It is precisely because of this re ason that the Court by its order dated 13.3.2007 had directed a police investiga tion into the matter. The progress of such investigation and the results thereof will definitely be monitored by the Court but not in the present proceedings. I n so far as the present cases are concerned because of the highly disputed natur e of the projections and counter-projections made by the contesting parties, the Court is of the view that the present will not be a fit cases for effective adj udication under Article 226 of the Constitution. No relief, therefore, can be af forded to the petitioners. All the writ petitions, therefore, are dismissed, however, witho ut imposing any cost. (cid:29) [7] Public employments whose expenses are met from the public excheq uer must not only conform to the recruitment rules or the rules holding the fiel d but also to the mandate of Articles 14 and 16 of the Constitution which abhor any element of malpractice or fraud. The Courts can not countenance any serious allegations of malpractice or fraud practiced during the recruitment process, w hich are anathema to the spirit of Articles 14 and 16 of the Constitution which deprive fair and equal opportunity to the eligible and meritorious candidates. In view of the above disputed facts relating to existence of vac ancies and serious allegations of malpractice said to have been committed by the authorities in the matter of appointment of 252 candidates, this Court is of th e view that the direction issued by the learned Single Judge on 07.6.2007 does n ot warrant any interference. Accordingly, these writ appeals are dismissed.