High Court
Case Details
WP(C) 8159/2004 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER 1. This writ petition is directed against the notification dated 3-12-2003 is sued by the respondent No. 1 declaring that all the Select Lists in respect of t he posts of Assistant Teacher Language Teacher under the Department of Elementar y and Secondary Education, published prior to 1-4-2001 stood expired with immedi ately and that all matters pending at any forum on the basis of such lists shoul d accordingly become infructuous with effect from the date of publication of thi s notification. 2.
Decision
This case has a chequered history. It started with the advertisement for the 200 posts of Assistant Teacher and 100 posts of Language Teacher, among oth er categories, published in the Assam Tribune in its issue dated 3-9-1991. Pursu ant to the advertisement, several candidates including the petitioners herein ap plied for the posts. So far as the District of Nalbari is concerned, the then Di strict Level Selection Committee prepared and published on 4-1-1995 separate lis ts of candidates for each of its constituency, namely, Barkhetri, Dharmapur, Nal bari, Patacharkuchi and Barama Constituencies. This resulted in the appointment of 79 persons for the various vacancies in the posts of Secondary School Teacher . The grievance of the petitioners is that though their names found a place in t he Select List published on 4-1-1995, but persons below them in the Select Lists and persons outside the said Select Lists had been appointed whereas they have not been appointed till now. This prompted the petitioner No. 2, 3 and 4, on the one hand, and the petitioner No. 5 and 6, on the other, to file Civil Rule No. 3056 of 1997 and Civil Rule No. 2835 of 1996 respectively before this Court, whi ch by the elaborate common judgment dated 2-8-1997 disposed of the writ petition with the following directions: For the reasons stated above, I dispose of writ petitions with a directi (cid:28)9. on that the Commissioner & Secretary to the Government of Assam, Education Depar tment and the Director of Secondary Education, Assam, shall within two months fr om today give effect to the orders dated 18th, 19th and 20th November, 1996 (Ann exure ’F’ & ’G’ to the affidavit-in-opposition and Annexure-’K’, ’L’ and ’M’ to the further affidavit) relating to Dharampur, Nalbari, Barama, Barkhetri and Pat acharkuchi constituencies of Nalbari District, cancelling the appointments of pe rsons outside the select lists as well as the appointments of all those persons who were not entitled to appointment on the basis of their position of merit in the select lists and per the provisions of law for reservation, and in their pla ce offer appointment to the candidates who were entitled to appointment as per t heir position of merit in the select lists and as per provisions of law of reser vation. It is made clear that in case any of the candidates to whom an offer of appointment is made does not turn up for appointment within one month of service such appointment letter, the offer of appointment shall be made to the next per son in order of merit in the select list and as per provisions of law of reserva tion. A person aggrieved by the said orders dated 18th, 19th and 20th November, 1996 including a person whose appointment is cancelled may make his submission b efore the Commissioner & Secretary to the Government of Assam, Education Departm ent, as mentioned in the said orders. I further direct that all ad hoc appointme nts existing as on date shall forthwith be terminated by the State-respondents. Affidavits will be filed in this court by the Commissioner & Secretary to the Go vernment of Assam, Education Department, and the Director of Secondary Education , Assam, that the aforesaid directions of this court with regard to cancellation of appointments of all persons outside the select lists and person who were not entitled to appointment as per their position of merit in the select lists and as per provisions of law for reservation and with regard to offer of appointment to the persons entitled to appointment as per their position of merit in the se lect lists and as per provisions of law for reservation, have been complied with . An affidavit will also be filed by the said Commissioner & Secretary and the D irector to the effect that the aforesaid directions with regard to termination o f ad hoc appointments has been complied with. The affidavits will be filed withi n two months from today. 10. With the aforesaid observations and directions, the writ petitions are a llowed to the extent indicated above. However, considering the entire facts and circumstances of the case, I leave the parties to bear their own costs. (cid:29) 3. The aforesaid directions of this Court was never complied with by the re spondent authorities. On the contrary, fresh appointments were illegally made: i n fact, the respondent No. 4 to 23 herein are ad hoc and illegal appointees and are allowed to continue in service till today and some of them have even been re gularized. Frustrated by this, the petitioners again approached this Court in WP (C) No. 7246 of 2006. An interim order was passed by this Court on 22-12-2000 di recting the respondents not to appoint any person without following the merit po sition of the candidate in the Select List for the posts of Assistant Teachers i n respect of Nalbari Constituency. Notwithstanding the interim order, the respon dent No. 3 by the order dated 9-10-1998 appointed one Girish Sharma to the post of Assistant Teacher though his name appeared at serial No. 58 of the Select Lis t dated 4-1-1995 of Nalbari Constituency: he is allowed to continue in this post till today. It is the case of the petitioners that a number of persons who did not find a place in the Select Lists or whose names were found below the petitio ners in the Select Lists have been appointed in violation of the aforesaid direc tions of this Court. The petitioners have now crossed the age bar for service an d will no longer be eligible for appointment to any post under the Government. T o add salt to their injuries, the respondent authorities, in violation of the cl ear mandates of this Court and apparently in order to circumvent the aforesaid d irections of this Court, have issued the impugned notification. Once again, they are approaching this Court by way of this writ petition to redress their grieva nce. 4. It is most unfortunate that the State-respondents have not bothered to f ile their affidavit-in-opposition till now though they made their appearance thr ough their standing Counsel as early as the last part of 2006. The writ petition was filed in the year 2004. Mr. SM Chisti, the learned Standing Counsel for the Education Department, however, makes submissions on behalf of the State-respond ents. The respondent No. 19 and 23 contested the writ petition and filed their r espective affidavits-in-opposition. According to the respondent No. 19, he was a ppointed as Assistant Teacher of Tihu High School by the respondent No. 3 on 30- 1-1996. His service was shifted from Plan Head to Non-Plan Head against the vaca nt post following the up-gradation of one Sailendra Pathak of Tihu High School vide the order dated 15-9-2000 issued by the respondent No. 3. Thereafter, the s ervices of the respondent No. 19 were regularized by the respondent No. 3 on 9-1 1-2000. It is contended by the respondent No. 19 that the writ petition is barre d by the principles of laches inasmuch as the petitioner approached this Court o nly in 2004 whereas the cause of action arose as early as 30-1-1996 when he had been appointed as Assistant Teacher. It is, therefore, contended by him that the writ petition is liable to dismissed on the ground of non-maintainability. In t he affidavit-in-opposition filed by the respondent No. 23 also, similar contenti on was raised by him, namely, the writ petition is barred by the principle of la ches as the petitioner challenged his appointment of 1999 only in 2004 i.e. afte r the lapse of more than four years. 5. The contention of Mr. SK Goswami, the learned counsel for the petitioner s, is that the State-respondents have not implemented the orders of this Court, particularly, the judgment and order dated 2-8-1997 directing them, among others , (i) to cancel the appointments of candidates who were outside the Select Lists as well as those who were not entitled to appointment on the basis of their pos ition of merits in the Select Lists and in violation of the police of reservatio n and (ii) to offer appointments to candidates who were entitled to appointments as per their position in the Select Lists and as per the policy of reservation and (iii) to terminate forthwith all the ad-hoc appointments existing on the dat e of the judgment: this resulted in denying the legitimate rights of the petitio ners to be appointed on the basis of the Select Lists in question so much so tha t they have now crossed the age bar for getting employment under the Government of Assam. He also submits that the impugned notification of the State-respondent s dated 3-12-2003 setting at naught the Select Lists published prior to April 1, 2000, which included the Select Lists in respect of the petitioners is not only illegal and unreasonable but has also violated the directions contained in the judgment and order dated 2-8-1997 of this Court. He, therefore, strenuously urge s this Court to quash the impugned notification and pass appropriate orders to g ive full effect to the directions contained in the said judgment of this Court: to ignore the blatant violation or disregard of the directions of this Court wil l send a wrong signal and will be subversive of the rule of law. Mr. SM Chisti, the learned Standing Counsel for the Education Department supports the impugned actions of the Department and submits that it was due to lack of vacancy that th e petitioners could not be accommodated. Mr. G. Uzir, the learned counsel for th e respondent Nos. 19 and 23, also supports the impugned action of the Department and submits that the writ petition is barred by the principle of laches inasmuc h as the petitioners came to question the validity of the appointments of respon dents No. 19 and 23, who were initially appointed and subsequently regularized o nly in 2004: the writ petition is, therefore, liable to be dismissed on this gro und alone also. 6. I have given my thoughtful consideration to the arguments advanced on be half of the rival parties. I have also carefully gone through the materials on r ecord. Concededly, the name of all the petitioners are found in Serial No. 32, 4 8, 61, 55, 10 and 15 respectively of the Select List in respect of Barama Consti tuency published on 4-1-1995. Despite the directions of this Court dated 2-8-199 7, the petitioners are still now pursuing the fruits of their litigation as if t hey have been chasing a mirage: the persistence shown by them for the last 13 ye ars or so is admirable though not rewarded. The stubbornness or the indifferent attitude adopted by the Education Department in denying the legitimate expectati ons of the petitioners is, to say the least, appalling and contemptuous of this Court and cannot be allowed to be buried by the sands of time. It is not the cas e of the Education Department that the Select List in question is illegal and, t herefore, cannot be acted upon. They just did not and do not want to accept the Select List, quite possibly, on the ground that they did not reflect their choic e. All kinds of stonewalls were, and are being erected by them even now to circu mvent the directions of this Court, which were never challenged by them in the a ppropriate forum and which have now attained finality. They are now saying that there are no vacancies to accommodate the petitioners. Naturally, when they chos e to ignore the Select List in question without any justification and had procee ded to fill up all the vacancies at the expense the petitioners from candidates who were outside the Select List or who were not entitled to appointment on the basis of their position in the Select List, which was prepared in order of merit . If the rule of law is to be maintained, a duty is now firmly cast on the Educa tion Department and the State-respondents to implement the directions of this Co urt passed on 2-8-1997 both in letter and spirit, if necessary by creation of su pernumery posts. 7. For what has been stated in the foregoing, this writ petition is allowed . The impugned notification dated 3-12-2003 issued by the Secretary to the Gover nment of Assam, Education Department, is hereby quashed. The State-respondents, particularly, the Education Department, Government of Assam, are, therefore, dir ected to appoint the petitioners to the posts of Assistant Teacher, subject to p olice verification, if necessary by creating supernumery posts, within a period of three months from the date of receipt of this judgment. The parties are, howe ver, directed to bear their respective costs.