High Court
Case Details
WP(C) 4326/2006 BEFORE THE HON’BLE MR. JUSTICE L.S. JAMIR
Legal Reasoning
BEFORE HON’BLE MR. JUSTICE L. S. JAMIR JUDGMENT AND ORDER (Oral) (JAMIR, J) Heard Mr. M. H. Ahmed, learned counsel appearing on behalf of the petiti 1. oner. Also heard Mr. S. M. T. Chistie, learned Standing Counsel appearing for Ed ucation Department, Assam. None appears for respondent Nos. 4 to 6. 2. The case of the petitioner in brief is that by letter dated 16.11.2005, the Government of Assam, Education (Secondary) Department accorded permission to the Borthal Doloigaon H.S. School, Morigaon to open its first year Higher Secon dary class in Art Stream. Thereafter, the Principal of the said school issued an advertisement for appointment to the post of subject teacher in Political Scien ce. Pursuant to the said advertisement the petitioner applied for the post and h e was called for interview. The said interview was held on 12.07.2006 and the se lection board on the basis of the interview held, prepared a merit list wherein in the Political Science subject the petitioner appears at serial No.1 with 50 m arks and the private respondent No.6 appeared at Serial No.2 with 49 Marks. The grievance of the petitioner is that instead of appointing the petitioner who was on top of the merit list prepared by the selection board, the Respondent No.4 h ad appointed the Respondent No.6 as subject teacher in the Political Science at Borthal Doloigaon H.S. School, ignoring the merit list. Being aggrieved the peti tioner had also made a representation dated 01.08.2006 to the respondent No.3. I t is also submitted by the learned counsel for the petitioner that he has tried to his level based to obtain a copy of the appointment order made to the Respond ent No.6. However, he could not do so. The petitioner had received a caveat file d by the respondent No.6 before this Court and received the details of the said appointment order. 3. Mr. S.H.T. Chistie, learned Standing Counsel for Education Department, A ssam, submits that the respondent Nos. 1 to 3 has nothing to say as the Borthal Doloigaon H.S. School is a venture school and therefore, the said respondents ha ve no role. 4. On perusal of the records, it is found that the submission made by the l earned counsel for petitioner is correct in as much as the respondent No. 6 had filed a caveat which was registered as caveat No. 1102 of 2006. Therein the resp ondent No.6 has stated that on being appointed by the letter dated 31.07.2006 is sued by the President of the Managing Committee of Borthal Doloigaon H.S. School , the respondent No.6 had joined to the post on 03.08.2006. The petitioner has a lso filed an additional affidavit on 10.09.2012 where in a copy of the minutes o f the meeting of the Managing Committee of Borthal Doloigaon H.S. School held on 30.07.2006 has been annexed. By another additional affidavit filed on 07.08.201 3 by the petitioner, it has been clarified that the word used as ’defective in t une’ be read as ’stammer’ at resolution No.4 of the minutes of the Managing Comm ittee of Borthal Doloigaon H.S. School held on 30.07.2006 as the same was a typo graphical error while making the translation. 5. On 11.09.2006, the respondent No.6 made appearance through his counsel. On 07.06.2013 none appeared for the respondent when the matter was called out. O n 30.07.2013 none appeared on behalf of the respondent No.6. Again on 30.08.2013 the matter was adjourned as the counsel for the private respondent No.6 was not present. Therefore, this Court had directed that the matter would be taken up e x parte if the counsel for the respondent No.6 is not present on the next day. To-day when the matter was called up for hearing none appeared for the r espondent No.6 as well as the respondent Nos. 4 & 5. None of the respondents hav e also filed their respective affidavit-in-opposition. 6. On perusal of the records, it is seen that the selection board had prep ared a merit list for the subject teachers of political science, Assamese and Ar abic. In the merit list for the subject teacher of Political Science, it is seen that the petitioner had obtained 50 marks out of 100 and the respondent No.6 ha d obtained 49 marks out of 100. While perusing the minutes of the Managing Commi ttee in Borthal Doloigaon H.S. School on 30.07.2013, it is seen that in resoluti on No.2, the Managing Committee had passed a resolution to appoint the first pos ition holders in the Arabic Department and in Assamese also. As regard the subje ct teacher of Political Science, the same is contained in resolution Nos. 3 & 4 which is re-produced here in below: (cid:28)Resolution No.3 As regards the subject Teacher of Political Science, after throu gh discussion and unanimously, following aspects are considered about Md. Mohibu r Rahman who secured second position in the penal list. 1. Presently Mohibur Rahman is 36 years. As the maximum age limit for Gover nment Service is 36 years, possibly he will not get Government job if he is not appointed here. 2. As 10 marks allotted for experience at the time of interview in place of 20 marks fixed by the Managing Committee, Habibur got second position as expres sed by everybody, otherwise, he would have occupied first position as thought of everybody. 3. Md. Habibur Rahman is working as subject teacher in Political Science in this School on Honourary basis for about one year. Considering the aforesaid aspects resolution is taken unanimously that let appoi ntment be issued to Md. Mohibur Rahman as subject Teacher in Political Science. Resolution No.3 is approved. Sd/- Illegible, Inspector of Schools, Morigaon District Circle. 18.08.2006. Resolution No.4 Although Abdur Rahman, candidate for Political Science got first position in the panel list, he is young, stammers, and passed recently for whic h he is deprived from the appointment. Yet all the members requested Dr. Idrish Ali, President of the Managing Committee to arrange alternative job of Abdur Rah man as per resolution. The President has assured for full co-operation in this r egard. (cid:29) 7. From a reading of the resolution Nos. 3 & 4 of the Managing Committee, i t is clear that the merit list prepared by the selection board with regard to th e subject teacher in Political Science was given a complete go by and the decisi on to appoint the respondent No.6 was passed purely on extraneous considerations . The action of the respondents in appointing the respondent No.6 as subject tea cher in Political Science ignoring the merit list prepared by the selection comm ittee is not found bonafide and the same is declared arbitrary and illegal. When the selection board had found no fault in the petitioner, it is not understood as to how the Managing Committee of Borthal Doloigaon H.S. School at resolution No.4 has found that the petitioner was stammering. 7. Under the facts and circumstances as discussed herein above and in the a bsence of any counter affidavit, this Court is of the considered opinion that th e resolution Nos.3 & 4 of the minutes of the Managing Committee of Borthal Doloi gaon H.S. School held on 30.07.2006 was passed without any basis and the same is accordingly quashed and set aside. The appointment letter dated 31.07.2006 appo inting the respondent No.6 as subject teacher in Political Science at Borthal Do loigaon H.S. School is also set aside and quashed. Accordingly, the respondent N o.4 is directed to appoint the petitioner in place of respondent No.6 forthwith, with effect from the date the respondent No.6 was appointed. It is however, mad e clear that the petitioner shall not be entitled to any back wages. 8. 9. Accordingly, this writ petition is allowed. No cost.