Judgment · High Court

Contending that the selection should be on the basis of the 1982 Rules and not as per the Assam Secondary Education (Provincialised) Service Rul es, 2003 (2003 Rules), the petitioners moved this Court in W.P.(C) No.2698/2008.

#10. The said writ petition was disposed of by this Court by order da ted 25-07-2008. The second paragraph of the said order makes it clear that the p etitioners had filed the said writ petition on the apprehension that inspite of the judgment dated 04-01-2005 as referred to above, the authorities were contemp lating to select and appoint the Post Graduate teachers in terms of the advertis ement dated 08-02-2003 by following the provisions of the 2003 Rules and not by those of the 1982 Rules.

#11. The said order reflects that the learned Standing Counsel of the Education Department had assured the Court that the selection process on princi ple would be guided by the 1982 Rules. This Court closed the proceeding giving l iberty to the departmental authorities to complete the selection process expedit iously as five years had passed since the initiation of the selection process. I t is thus clear that this Court had passed the order dated 25-07-2008 in the con text of the selection process pursuant to the earlier advertisement dated 08-02- 2003 and not the one pursuant to the later advertisement dated 03-06-2007.

#12. Thereafter, the Secretary to the Government of Assam, Education (Elementary) Department passed an order dated 08-07-2009 purportedly in complian ce to the order of this Court dated 25-07-2008. As per the said order, both the petitioners appeared in the interview before the School Selection Committee as p er the advertisement dated 03-06-2007. After completion of the selection process , the Selection Committee of the concerned schools forwarded the selection paper s to the Director of Secondary Education. It is stated that names of both the pe titioners do not appear in the zone of consideration and in the panel of candida tes and that they are not covered by the 1982 Rules as the advertisement was mad e as per the 2003. Therefore, the claim of both the petitioners have been found not tenable and rejected.

#13. The contention of the petitioners is that the two vacancies havi ng occurred on 24-04-1999 and 30-03-2003 respectively when the 1982 Rules were i n force, those should be filled up in accordance with the 1982 Rules. The insist ence on the 1982 Rules is because under Rule 7 thereof, serving graduate teacher s having the requisite educational qualification and minimum two years of contin uous teaching experience are given priority over other candidates during recruit ment to the post of Post Graduate teacher. On the other hand, under Rule 7 of th e 2003 Rules, such graduate teachers get preference in selection for appointment to the post of Post Graduate teacher. Thus, under the 1982 Rule, eligible gradu ate teachers get priority whereas under the 2003 Rules, they get preference. The re is also another crucial difference. Under the 1982 Rules, recruitment of Post Graduate teacher is on State level basis to be conducted by the State Level Sel ection Board. But under the 2003 Rules, such recruitment is school wise to be co nducted by the respective School Selection Committees. Learned Counsel for the p etitioners, therefore, submits that the respondents may be directed to fill up t he two vacancies as per the 1982 Rules.

#14. A counter affidavit has been filed by the Deputy Director of Sec ondary Education, Assam on 11-08-2010. He has stated that the recruitment proces s pursuant to the advertisement dated 08-02-2003 is being conducted as per the 1 982 Rules and the recruitment process pursuant to the advertisement dated 03-06- 2007 as per the 2003 Rules. The interview process pursuant to the advertisement dated 08-02-2003 is still continuing and that the said interview process covers 254 posts of Post Graduate (Subject) teacher.

#15. In paragraph 10 of the said affidavit, he has stated that the pe titioners had applied pursuant to the advertisement dated 03-06-2007 and appeare d before the Selection Committee of the respective schools. Since they obtained poor marks, they did not come within the zone of consideration. This is also ref lected in paragraph 11 of the said affidavit. The contentions of the said 2(two) paragraphs are quoted here under :- That with regard to the statement made in paragraph 8, the deponent stat (cid:28)10. es that the petitioner No.1 and 2 applied for the post in response to the advert isement dated 03-06-2007 and appeared before the respective School Selection Com mittee for interview and obtained poor marks in Academic performances and interv iew marks as stipulated in Schedule II of the Assam Secondary Education (Provinc ialised) Service Rules, 2003 and accordingly their names were not covered within the zone of consideration, whereas candidates securing / obtaining highest mark s in interview and academic performance were selected for appointment.

#11. That with regard to the statement made in paragraph 9, the deponent stat es the same is a matter of fact. Both the petitioners appeared knowing fully wel l in the selection process / interview pursuant to the advertisement dated 03-06 -2007 and the said advertisement was made as per Assam Secondary Education (Prov incialised) Service Rules, 2003 and obtained / secured poor marks in academic pe rformances and interview marks as it is observed that the names of both the peti tioners do not appear in the zone of consideration and in the panel of candidate s for appointment (cid:29). The respondent No.6, who got himself impleaded in the proceeding 16. , is a claimant to the post of Subject teacher of Mathematics in the Abhayeswari H.S. & M.P. School, Bongaigaon, the post claimed by the petitioner No.2. In his counter affidavit dated 02-12-2009, he has stated that pursuant to the advertis ement dated 03-06-2007, he received call letter dated 18-08-2007 and appeared in the interview on 27-08-2007. In paragraph 4 he has stated that he could come to know that he has been selected as his police verification was completed on 18-0 2-2009. He has also filed an additional affidavit on 15-11-2010 wherein he has a nnexed a select list dated 31-08-2009 of 127 candidates, in which his name appea rs at Serial No.33.

#17. Learned Standing Counsel as well as learned Counsel for the resp ondent No.6 submit that the two vacancies in question are covered by the adverti sement dated 03-06-2007. It was expressly stated in the said advertisement that the selection process would be governed by the provisions of the 2003 Rules. Th e petitioners had participated in the selection process but could not be success ful. Learned Counsels therefore submit that the petitioners are now estopped fro m contending that the selection should have been under the 1982 Rule and not und er the 2003 Rules. They also submit that the petitioners have not challenged the advertisement dated 03-06-2007. Therefore, they seek dismissal of the writ peti tion.

#18. d. The submissions made by the learned Counsels have been considere In the Annexure-2 advertisement dated 03-06-2007, 158 posts of S 19. ubject teacher, including the post of Subject teacher in Assamese in the Bechama ri MI HS Schol and the post of Subject teacher in Mathematics in the Abhayeswari HS and MP School, Bongaigaon, were advertised with clear stipulation that these posts were outside the purview of the selection process pursuant to the earlier advertisement dated 08-02-2003. It was also clarified that the selection would be as per the 2003 Rules.

#20. The two petitioners had participated in the selection process pu rsuant to the advertisement dated 03-06-2007 knowing fully well that the selecti on would be governed by the 2003 Rules. This position therefore renders the argu ment of the petitioners that the selection should be as per the 1982 Rules and n ot as per the 2003 Rules rather meaningless and redundant. As a corollary to the above, it can also be said that the petiti 21. oners having participated in the selection process pursuant to the advertisement dated 03-06-2007 with their eyes wide open, without challenging the said advert isement, they cannot now turn around and say that the selection process is vitia ted because of non-adherence to the 1982 Rules. The two posts in question are in cluded in the advertisement dated 03-06-2007, which clearly stated that selectio n to the 158 posts covered by the said advertisement would be as per the 2003 Ru les. Therefore, the contention of the petitioners that the selection should be a s per the 1982 Rules is without any merit and is accordingly rejected.

#22. Having said that, the conduct of the State respondents cannot al so be glossed over. As noticed in the earlier part of this judgment, petitioner No.1 had also appeared in the interview held on 20-04-2005 for the post of Subje ct teacher in Assamese pursuant to the earlier advertisement dated 08-02-2003. A s per the departmental affidavit filed on 11-08-2010 referred to above, the said recruitment process has not been completed. This Court in the order dated 25-07 -2008 passed in W.P.(C) No.2698/2008, with reference to the selection process pu rsuant to the advertisement dated 08-02-2003, observed that the departmental aut horities having regard to the fact that five years had passed from the initiatio n of the recruitment process, would endeavour to complete the same expeditiousl y. What was observed by this Court was that the recruitment process in terms of the advertisement dated 08-02-2003 should be completed early. Instead of doing t hat, the Departmental Secretary passed the order dated 08-07-2009 rejecting the prayer of the petitioners as not tenable. The said order is quoted hereunder in its entirety :- (cid:28)GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT ORDER Read : o.2698/2008 of Md. Ismail Hussain and Shri Bipul Kalita -vs- State of Assam. The order dated 25-07-2008 passed by the Hon’ble High Court in W.P.(C) N Also Read: The report of Director of Secondary Education, Assam vide letter No. GB-EST/DSE/CC/168/2008/77 dated 18-02-2009 and GB-EST/DSE/CC/168/ 2008/73 d ated 25-11-2008. The petitioner Md. Ismail Hussain has been working as Asstt. Tea Findings: cher in Bechamari MI HS School since 1999. Due to acquiring of Post Graduate Deg ree in Assamese, he appeared in the interview held in the same school for fillin g up of Post Graduate Teacher post (Assamese) occurred in Bechamari MI HS School as per advertisement dated 03-06-2007. Another petitioner Shri Bipul Kalita is also a Post Graduate Degree holder Asstt . Teacher of Abhayapuri H.S. & M.P. School. He has been working in this school s ince 23-06-2004. He has taken classes in H.S. + 2 section in Mathematics subject in addition to this duty. It was stated in column ’other criteria’ of relevant advertisement that the sele ction process will be conducted as per Assam Secondary Education (Provincialised ) Service Rules, 2003. Subsequently both the petitioners appeared before the sch ool Selection Committee. After completing the process of selection, the Selectio n Committee of the concerned schools forwarded the same to the Director of Secon dary Education, Assam. Decision: In view of the facts stated above, it is observed that the names of both the petitioners do not appear in the zone of consideration and in the p anel of candidates for appointment and not covered under Rule 7 (C) of Assam Sec ondary (Provincialised) Service Rules, 1982 for appointment as the advertisement was made as per Assam Secondary (Provincialised) Service Rules, 2003. Therefore , the prayer of both the petitioners is not tenable and it is rejected. This is issued in compliance of the order dated 25-07-2008 passed in W.P.(C) No. 2698/2008. Sd/- A.B. Md. Eunus Secretary to the Govt. of Assam Education (Ele.) Department Dated Dispur the 8th July, 2009 (cid:29)

#23. This Court did not ask the Department to pass such order. It app ears that the said order was passed on a misreading of the order of this Court d ated 25-07-2008. However, the order having been passed, it would now require a c loser scrutiny. Though the aforesaid order says that the names of the petitioner s do not appear in the zone of consideration and in the panel of selected candid ates, nothing is stated as to how they do not come within the zone of considerat ion. Nothing has been stated about the selection process and as to the candidate s who have been selected against the posts in question. The departmental counter affidavit is also vague in this regard. All that it says is that the petitioner s had appeared before the Selection Committee of the respective schools pursuant to the advertisement dated 03-06-2007 but since they obtained poor marks, they did not come within the zone of consideration.

#24. Considering the above position, this Court by order dated 14-05- 2012 directed the learned Standing Counsel to produce the selection record in re spect of the two posts in question. Today, when the matter is heard, Ms. P. Chak raborty, learned Standing Counsel submits that the Department has not made avail able such record.

#25. Though the contention of the petitioners that the recruitment to the two posts should be governed by the 1982 Rules cannot be accepted and has b een rejected for the reasons already indicated, nevertheless, the petitioners ar e entitled to know as to what happened to their selection pursuant to the advert isement dated 03-06-2007. Petitioner No.1 is also entitled to know as to what ha ppened to his selection pursuant to the earlier advertisement dated 08-02-2003, the interview for which was held on 20-04-2005. Though no body had asked the Dep artmental Secretary to pass the order dated 08-07-2009, the same having been pas sed, it must meet the requisite standard of fairness and transparency. To make m atters worse, even the counter affidavit of the department does not disclose the material particulars of the selection. Interestingly, it is in the additional a ffidavit of the private respondent No.6 and not in the departmental affidavit th at a select list dated 31-08-2009 of 127 candidates containing the name of the r espondent No.6 has been annexed (though the advertisement dated 03-06-2007 was f or 158 posts). In view of the above, the order dated 08-07-2009 of the Departme 26. ntal Secretary (Annexure-5) being devoid of material particulars, is considered to be of no legal consequence. The Departmental Secretary shall now pass a fresh order pertaining to the selection to the posts of Post Graduate teacher in Assa mese and Mathematics in the Bechamari M.I. H.S. School, Nagaon and Abhayeswari H S and MP School, Bongaigaon respectively indicating therein the relevant particu lars of selection. It should also indicate about the claim of the petitioner No. 1 vis-à-vis the selection process pursuant to the earlier advertisement dated 08 -02-2003. Such order shall be passed within a period of 60 days from the date of receipt of a certified copy of this order. Consequent upon the order passed, th e appointments to the two posts shall be made. Till then, the interim order pass ed by this Co4urt on 17-08-2009 directing not to fill up the above two posts sha ll continue. The petitioners shall submit a certified copy of this order before the Departmental Secretary within 2(two) weeks from today for doing the needful, failing which the interim order dated 17-08-2009 would automatically stand vaca ted.

#28. Writ petition accordingly stands disposed off. No cost.