High Court
Case Details
WP(C) 4040/2008 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT (ORAL) 1. There are three writ petitions interlinked with each other and according ly by orders previously passed they have been tagged together for analogous hear ing. Out of these three writ petitions, W.P(C)No. 4040/2008 is by Dhiren Barman whereas WP(C) No. 3314/08 and WP(C) No.2247/2009 are by Kushal Das. Basic prayer in both WP(C) 4040/2008 and WP(C) No.3314/2008 are cancellation of appellate or der dated 20.2.2008 passed by Commissioner & Secretary(Education) upholding the order of Director Elementary Education and rejecting the claim of the writ petitioners of being de jure appointee of selection made in 1998 for M.E. S chools in the district of Nalbari. The prayer in WP(C) No. 2247/2009 is for canc ellation of the appointments of private respondents, namely, Jogen Das and Nabin Barman. All these three cases are based on a set of common facts. The said commo
Decision
There was an advertisement in the month of January, 1997 by the Director of Elementary Education Assam for the purpose of filling up 7500 posts of Assis tant Teachers in the provincialised M.E/ M.V/ M.E. Madrassa/ Lower Basic and Low er Primary School in different districts of Assam. The last line of the advertis ement contained a recital that the said advertisement did not relate to any auto nomous council area, Karbi Anglong or N.C. Hills District. The said advertisemen t does not show as to whether it was under the Operation Black Board scheme or n ot. (ii) The writ petitioners of all these three writ petitions claim that on 28. 6.88 a select list was published under the signature of Minister, for the depart ments of Social Welfare, WPT and BC, Assam for the Barama Legislative Assembly Constituency in the district of Nalbari. Serial No. 3 and 7 of the said list u nder general area shows names of Kushal Das and Dhiren Barman for appointment as M.E. teachers. The writ petitioners further claim that on 3.11.98 writ petition er Kushal Das was appointed in Srimanta Sankardev Vidyapith M.E. School whereas the writ petitioner in other case Dhiren Barman was appointed in Gobardal Milan M.E. School. They claim that they were getting salaries pursuant to the servi ces rendered by them but problem arose after an order was passed on 17.4.10 by the Director of Elementary Education (for short, (cid:28)DEE (cid:29)) issuing retention o rder for these posts. In the said retention order the post held by Kushal Das was shown to be held by Jogen Das whereas the post held by writ petitioner D hiren Barman was shown to be held by one Nabin Barman and both of them were ma de parties as respondent No.5 in respective writ petitions. The writ petitioners claim that they brought this anomaly to the notice of the jurisdictional Distr ict Elementary Education Officer( for short ’DEEO’), whereupon an order was pass ed on 7.7.2000 by the DEEO bringing the name of Kushal Das and Dhiren Barman in the retention list in place of respondent No.5. Aggrieved, Jogen Das and Nabin Barman came before this Court by filing a joint Writ petition vide W P (C) No. 6557/01 and challenged the said order passed by the DEEO modifying the retent ion order passed by the DEE. The present writ petitioners in WP(C) No.4040/08 as well as WP(C) No.3314/08 were impleaded as Respondents in the said writ petiti on. This court passed an order in said writ petition asking for report from the DEE giving its view on such action taken by the DEEO. Although the DEE did not s ubmit any report but passed an order on 14.3.2002 setting aside the order of the DEEO and thereby restoring the retention order to its original position. This d evelopment was brought to the notice of this court and thereupon the writ petiti on itself was disposed of on 20.3.2000 observing, inter alia, as follows: (cid:28)As the Government has already cancelled the order dated 7.7.2000, the petitione r obtained relief as claimed in this regard. So far as the prayer for directing the authorities to appoint the petitioner as Asstt. Teacher the State Respondent s are hereby directed to consider the case of the petitioner alongwith similarly situated persons for their appointment as Asstt. Teacher in the school. The petitioner shall furnish a certified copy of this order alongwith a copy of the writ petition and the Annexures thereto to the State Res pondents more particularly the Respondent No.2, Director of Elementary Education , Assam and the Respondent No.3 the District Elementary Education Officer, Nalba ri who shall comply with the above directions of this Court within four weeks fr om the date of receipt of this order with intimation to the petitioner. After pa ssing the order by the respondents, if the petitioner still feels aggrieved, he may approach this Court again. (cid:29) (iii) Thereafter writ petitioners of the said writ petition, namely, Jogen Das and Nabin Barman filed writ appeal being Writ Appeal No.157/2002 before the Div ision Bench of this Court expressing grievance that the appointment letters of K ushal Das and Dhiren Barman were not set aside by the Single Bench while releg ating the petitioners of WP(C) No. 6557/01 to the departmental authority. The sa id writ appeal was contested by the present petitioners and thereupon order was passed on 24.2.2005. Paragraph 7 of the said order is quoted below: (cid:28)7. The State Government has already nullified and cancelled the appointment of Respondent Nos. 4 and 5 leaving no scope for reddressal by us at the instanc e of the appellants. This Court could not have directed the State Government to straightway appoint the appellants and thus rightly the learned Single Judge h as passed an order to consider their cases. We thus do not see any substances in this appeal. The learned Single Judge has also well protected the interest of the appellants by observing that after passing of the order by the Government, if they still fe el aggrieved, they may approach this Court once again. (cid:29) With the aforesaid observation the Division Bench of this Court dismisse (iv) d the writ appeal upholding the direction of the Single Judge relegating the wri t petitioners to the appellate authority. It is necessary to mention here that a longwith the said writ appeal the Division Bench also decided two writ petitions , namely, WP(C)1140/03 and WP(C) No. 2754/03 instituted at the instance of the p resent petitioners and therein a short order was made in the line of the judgme nt passed in the writ appeal and thereby holding that since the matter stood a lready remanded to the appellate authority the writ petitioners of the said two writ petitions would be at liberty to satisfy the Director of Elementary Ed ucation that the orders dated 7.7.2000 passed by the DEEO were with prior appro val of the Government. (v) Thereafter the Commissioner & Secretary heard all the sides on the poin ts raised. There is no allegation of any violation of principles of natural just ice. Ultimately the Commissioner by order dated 20.2.2008 has come to a definit e finding on the basis of records as well as report of the DEE holding that J ogen Das and Nabin Barman were really selected for appointment in M.E. School s in Nalbari District during the year, 2002 and on enquiry of the matter it ca me to light that DEEO appointed Kushal Das and Dhiren Barman in their place i n Sree Srimanta Bidyapith M.E. School and Gobardal M.E. School respectively. It is the finding of the appellate authority that the action of the DEEO by order dated 7.7.2000 bringing about modification in retention order issued by the DEE on 5.6.2000 was illegal and without any authority. While the Division Bench of this Court in WA No.157/2002 had given liberty to the present petitioners to sa tisfy the Director and/or other authorities that the order dated 7.7.2000 pass ed by DEEO was with prior approval of the Government and not his own decision, t he writ petitioners failed to produce any record in support of their claim . Th ere is no allegation that the decision of the appellate authority is vitiated by bias or by any other error in the decision making process. 3. Mr. R.P. Sarma, learned senior counsel assisted by Mr A. Nath learned co unsel appearing on behalf of the writ petitioners in WP(C) No. 3314/08 and 2247/ 09 has made submission and brought my attention to the relevant records as ref erred to above. Mr. D Sarma has made submission on behalf of the petitioner in WP(C) No. 4040/2001. I have also heard Mr. B. Chakraborty, learned counsel for t he private respondent No.5 in all the three writ petitions and Mr. A. Deka learn ed Standing Counsel, Education Department. 4. Submission of the learned counsel for the writ petitioners are mainly on following points: First, the writ petitioners were duly selected and that the same is evidenced b y existence of their name in the select list dated 26.10.98 annexed to the writ petition; Secondly, selection was followed by issuance of appointment letters on 3.11.88 p ursuant to which they rendered service and received salary till 2006; Thirdly, manipulation took place at the Directorate level and the same was done only at the stage of retention order; and Fourthly, the appointment of Jogen Das was made in 2001 as OBB teacher and not Per contra Mr B. Chakraborty learned counsel appearing for the private r pursuant to selection made in 1998. 5. espondent submits as follows: First, that the select list dated 26.10.88 was prepared on the advertisement iss ued in January, 1997. The last line of the said advertisement bears a recital to the effect that the advertisement did not apply to any autonomous area, namely, Karbi Anglong or N.C. Hills District. But the questioned select list dated 26.1 0.88 contained names of the selected candidates of this autonomous area, namely, BAC. This shows that this purported selection cannot be in terms of the adverti sement made and thus there is no causal connection between the selection and the advertisement. Consequently, the select list is illegal apart from being vitiat ed for non consideration of the terms and condition of the advertisement. Secondly, the said select list does not have any replica at the directorate and Government level and that is why the list available in the records maintained by the superior authority who had earlier approved the list 1998 does not contain the name of the writ petitioners. Rather the select list that was approved by th e Government is altogether different one. The approved select list has been used for preparation of retention order and this is why the retention order passed b y the DEE does not contain the names of the writ petitioners. On other hand sinc e the records maintained by the superior authority contained the names of the pr ivate respondents, namely, Jogen Das and Nabin Barman, their names have been sho wn in the retention order. Thirdly, that the purported select list annexed to the writ petition itself show s that the same was under OBB scheme whereas the advertisement of 1997 was not u nder OBB which is evident from the advertisement itself; Fourthly, appointment letter under OBB scheme issued in the name of Jogen Das i n the year 2001 was only for a period of three months but all these appointme nts were cancelled by the Government in view of the fact that the selection o f teachers under OBB scheme in Nalbari district was found to be vitiated by lar ge scale corruption. Fifthly, that writ appellate Court having observed in paragraph 7 of the judg ment in WA 157/02 that the appointment of the petitioner stood nullified by the Government, the present writ petition is barred by constructive res judicata. T he matter, therefore, is a closed chapter and as such consequential termination order issued on the later dates cannot bring about any cause of action in the wr it petition and consequently writ petition deserves to be dismissed. After hearing the learned counsel for both sides it appears that the bas 6. ic order that has been challenged in these writ petitions is the order dated 20. 2.2008 whereby the order of the DEE passed on 14.3.2002 setting aside the order of the DEEO was upheld. Now, it is noticeable here that the order dated 14.3.200 2 passed by the DEE was not only considered by the Single Bench in W P(C) No.655 7/01, it was interpreted by the Division Bench as one nullifying the appointment of writ petitioners, namely, Kushal Das and Dhiren Barman. The writ petitioners did not challenge that finding before appropriate forum and thus said finding a ttained finality. However, since by the same order the writ appellate court gave liberty to the writ petitioners to establish before the government i.e., appell ate authority that order passed by the DEEO modifying retention order passed by the DEE who is his superior authority was made with prior approval of the superi or authority and was not an unauthorised exercise of power, it also open to the writ petitioners to do so. But incidentally the writ petitioners have not place d any material either before the appellate authority or even before this court a t this stage to establish that the DEEO did not unauthorisedly modify the order of his Superior authority, namely, the DEE there is no scope to reopen the matte r. The only point that arose for determination before the appellate authori 7. ty, namely, Commissioner & Secretary to the Govt. of Assam, Education Department was as to whether the retention order issued by the DEEO on 5.6.2000 was valid and if so whether Jogen Das and Nabin Barman were to be appointed as ME School t eachers in the schools shown in the retention order. The DEE having set aside th e order dated 7.7.2000 on 14.3.2002 observing that the DEEO did not consider the Government approved list, the private respondents’ claim of getting appointment got strengthened. This order was passed during the pendency of the writ petiti on and this order dated 14.3.2002 has been interpreted by the Division Bench o f this Court as one ’cancelling and nullifying the appointment of the present p etitioners’. The said interpretation has attained finality as none of the petiti oners challenged the same in appropriate time before the appropriate forum. So w hat was left before the appellate authority, the Commissioner and Secretary was only to see as to whether the order dated 7.7.2000 passed by the DEEO himself m aking change in the retention order passed by his superior authority was vali d and as to whether the private respondents were entitled to be appointed as a teacher in place of present petitioners. The Commissioner has passed the order on perusal of the ’reports submitted by DEE , Assam and all other records etc.’ The writ petitioners could not show any paper to establish that the DEEO obtain ed prior approval of the DEE or of the Government before himself correcting the retention order issued by his superior authority. The select list relied on by t he DEEO is a one for OBB scheme whereas the advertisement was not under OBB sche me. The presence of recommendation for BAC areas shows that it cannot be in resp ect of the advertisement in question. Moreover, a select produced by DEEO from h is custody does not bear signature of the member secretary or any other member a nd the same contains only signature and seal of a Minister of Social Welfare etc . are all clear indications leading to conclusion that that the select list was not a genuine one. Besides affidavit filed by the DEE refers that the records of proceedings of selection at the district level was not traceable/available. Had the list been genuine, the DEEO would have made the records available to the DE E or to the Commissioner or even to this court. The claim of the writ petitioner s of being de jure appointees is incidental to validity of the select list only and the select list itself having been found not reliable the case of the writ p etitioners fails and as such it cannot be said that the DEE or the Commissioner has acted arbitrarily or illegally or discriminately in any way. Under such fact s and circumstances, the submissions made by the learned counsel for the petiti oners that they were duly selected in 1998, that there was any manipulation at d irectorate level or that appointment of Jogen Das on the basis of the retention order or selection is that of under the OBB scheme cannot be accepted. The submi ssions made on behalf of the respondents are rather of substance. 8. There is no denying the fact that the appellate authority gave opportuni ty of hearing to all the parties, perused the records including the report submi tted by the DEE and thereupon has passed a reasoned order. Can such an order of the administrative authority be interfered with by way of judicial review merely at the ipse dixit of the writ petitioners? Law is settled in regard to the scop e, nature and limitations of the power of judicial review. The writ court can on ly see whether a decision making authority exceeded its powers, committed an err or of law, violated rules of natural justice, reached a decision which no reason able man would have reached or otherwise abused powers. Though the writ court is not expected to act as a court of appeal, nevertheless it can examine whether t he decision making process was reasonable, rational, not arbitrary or not violat ive of the article 14 of the Constitution. An administrator’s order may be right or wrong. It is the administrator’s right to trial and error and so long as it is bona fide and within the limits of the authority, no interference is called f or. This is because, by preponderant judicial pronouncements made over all these years it has been taken to an axiomatic level that power of judicial review is supervisory in nature and unless the self imposed restrictions referred to above are observe, the court under the guise of preventing abuse of power by the admi nistrative authority, will itself be guilty of usurping power of the Executive. In Tata Cellular-vs Union of India reported in (1994)6 SCC 651 a passage quoted from the Adminstrative Law (2nd edition) by Bernard Schwartz and it is really ve ry difficult to check temptation to re-quote the same: (cid:28) If the scope of review is too broad, agencies are turned into into lit tle more than media for transmission of cases to the courts. That would destroy the values of agencies crated to secure the benefit of special knowledge acquire d through continuous administration in complicated fields. At the same time, the scope of judicial inquiry should not be so restricted that it prevents full inq uiry into the question of legality. If that question cannot be properly explored by the judge, the right to review becomes meaningless. It makes judicial review of administrative orders a hopeless formality for the litigant. (cid:29) 9. In the light of what is discussed above, can it be held that the case in hand warrant any interference by way of judicial review? In the instant case, none of the learned counsel for the petitioners could point out any defect in th e decision making process leading to passing of the impugned order dated 20.2.2 008 by the Commissioner and Secretary, Education Department, Govt. of Assam. T here is no allegation that these findings are perverse. There is no material to hold that the impugned order is illegal or is arbitrary. No attempt has been mad e by the petitioners to establish that the DEEO modified order of his Superior o n being authorised to do so. Order passed by the Appellate Authority is neither vitiated by bias nor is there any allegation as to lack of bona fide. There is n o allegation that the order has been passed in violation of the principles of na tural justice. On totality of the circumstances it has to be held that the pet itioners have failed to bring their cases within the settled principles for exer cising power of judicial review and consequently there is no merit in this writ petition. In view of what have been stated above, the challenge made in the writ 10. petitions against the order dated 20.2.2008 passed by the Commissioner & Secreta ry to the Govt. of Assam in the department of Education and consequential orders dated 16.7.2008 and 17.7.2008, are devoid of any merit. All the writ petitions , namely, WP(C) 4040/2008, WP(C) No.3314/2008 and WP(C) No. 2247/2009 are accord ingly dismissed. 11. However, no order as to costs.