Judgment · High Court · 2012

Being aggrieved by the judgment and order dated 20.12.2010 passed in WP( C) No. 6699/2010 thereby rejecting their impugnment of the decision of the Commi ssioner & Secretary to the Govt. of Assam, Education (E) Department communicated vide the order dated 30.9.2010, the writ petitioners are in appeal. By the afor estated administrative decision their claim for appointment as Assistant Teacher s in Middle English Schools located within the Jalukbari Legislative Assembly Co nstituency of the State was dismissed. We have heard Mr M Bhuyan, learned counsel for the appellants/ writ peti tioners and Mr A Deka, learned Standing Counsel, Education Department, Govt. of Assam for the official respondents. A brief outline of the relevant facts is indispensable. The appellants’ pleaded case is that they had offered their candidature in response to the adver tisement dated 27.12.96 published by the Director of Elementary Education, Assam for filling up 7500 posts of Assistant Teachers in the Primary/Middle English S chools/ Middle English Madrassas in the State of Assam. In response to the appli cations submitted by them for recruitment to the posts of Assistant Teacher in t he Middle English Schools of the Jalukbari Legislative Assembly Constituency the y being qualified therefor, were interviewed. According to them, as required und er the Assam Elementary Education (Provincialisation) Rules, 1977 (for short, h ereinafter referred to as ’the Rules’), the Sub-Divisional Level Advisory Board, Kamrup was constituted which in turn formed the interview committees for all th e Legislative Assembly Constituencies under the Guwahati Sub Division including the Jalukbari Legislative Assembly Constituency with the following make-up: i) Sri Sarbeswar Baruah ii) Sri Harakanta Kalita iii) Md. Muslemuddin Ahmed iv) Sri Narayan Ch. Deka Chairman - Member - Member Member - - As the appellants/ writ petitioners thereafter waited in expectation, th ey could come to learn that the select lists of candidates for the other Legisla tive Assembly Constituencies of the State including that of the Kamrup District, save and except the Jalukbari Legislative Assembly Constituency, had been prepa red and published. Though subsequent thereto the selected candidates for the oth er Legislative Assembly Constituencies were appointed, the select list for the J alukbari Legislative Assembly Constituency was not published. Instead, another a dvertisement was published in the issue dated 2.12.2005 of the local daily (cid:28)The Assam Tribune (cid:29) for filling up 3372 vacant posts of Assistant Teachers in L.P. an d M.E. Schools of the State. In these circumstances, 34 candidates including the present appellants/ writ petitioners approached this Court by filing WP(C) 2949 /2008 with a prayer for an appropriate writ or direction to the State responden ts to publish the select list dated 1.3.2001 which, according to them, had meanw hile been prepared by the concerned authorities. Eventually, this proceeding was disposed of vide order dated 22.5.2009 requiring the writ petitioners to lay a copy of the writ petition along with the order of this Court before the Commissioner & Secretary to the Govt. of Assam, Education (E) Department for consideration and disposal on merits within a time frame of four months. Though thereafter for the alleged inaction on the part of the concerned authorit y the appellants/ writ petitioners initiated a contempt proceeding being Cont. C ase (C) No. 174/2010, finally by the order dated 30.9.2010 referred to hereinabo ve, the Commissioner & Secretary to the Govt. of Assam, Education (E) Department rejected their claim for appointment as Assistant Teachers in M.E. Schools of t he Jalukbari Legislative Assembly Constituency. Incidentally, in the contempt pr oceeding, the Commissioner & Secretary, Education (E) Department intimated this Court that in the process of compliance of the directions contained in the order dated 22.5.2009 passed in WP(C) 2949/2008, an enquiry had been ordered to ascer tain as to whether any interview for appointment of Assistant Teachers in the Ja lukbari Legislative Assembly Constituency had in fact been held and, if so, unde r what circumstances the select list had not been published. According to the ap pellants/ writ petitioners, a copy of the enquiry report submitted by the Joint Secretary, Govt. of Assam, Education Department was also furnished to them. Cont ending that the enquiry report did not correctly reflect the actual state of aff airs and that the order dated 30.9.2010 had been passed without scrutinizing pro perly the materials on record, the appellants approached this Court seeking annu lment thereof. They contended as well that the order dated 30.9.2010 was passed overlooking the vital fact that as disclosed in the enquiry report, the relevant records pertaining to the selection for recruitment of Assistant Teachers to L. P. and M.E. Schools situated within the Jalukbari Legislative Assembly Constitue ncy were available. The learned Single Judge by the judgment and order impugned in the instant appea l dismissed the challenge on the following considerations:- i) The advertisement initiating the process for selection was made in the y ear 1996 and the interview in connection therewith was held in May, 1997 and tha t the appellants/ writ petitioners had approached this Court with WP(C) 2949/200 8 i.e. 11 years thereafter. The petitioners had not been selected in the process. ii) iii) One member of the Interview Board had permitted his nominee to participa te in the proceedings thereof which was impermissible and, thus, the selection c onducted was in violation of Rule 3 of the Rules. iv) The select list could not be published as the same was not received from the Selection Committee. v) The enquiry report revealed that two members of the Selection Committee/ Interview Board did not award any mark to the candidates. vi) The impugned order dated 30.9.2010 had been passed on a consideration of all relevant aspects of the matter as disclosed in the enquiry report. vii) With the kind of anomaly in the conduct of the interview as discernible, no direction ought to be issued to the respondents to publish the select list, the process for which was initiated in the year 1996/97. viii) n that if the select list is published their names would be empanelled therein. The case of the appellants/ writ petitioners was based on mere assumptio Mr Bhuyan has persuasively argued that it being apparent on the face of the reco rds that the enquiry report with the relevant records pertaining to the selectio n were available containing inter alia a select list drawn up on the basis of th e assessment made by the Interview Board/ Selection Committee, the finding recor ded in the impugned order dated 30.9.2010 that no such select list was prepared is patently erroneous and is liable to be adjudged as such. This order, the lear ned counsel urged, reflects a total non application of mind to the materials on record and is, thus, non-est in law. While pleading that as permitted by this Co urt, on an inspection of the relevant records it is apparent that a select list of 92 candidates for recruitment of Assistant Teachers in ME Schools within the Jalukbari Legislative Assembly Constituency had in fact been prepared empanellin g 7 of the writ appellants herein, Mr Bhuyan maintained that a public participat ory process having been initiated, it was incumbent on the State respondents to take the same to its logical conclusion, lest the whole pursuit is reduced to a farce. The impugned judgment sustaining the decision of the Commissioner & Secre tary to the Govt. of Assam, Education (E) Department is liable to be interfered with in the interest of justice, he urged. According to the learned counsel, the presence of the nominees of two members of the Interview Board did not vitiate its proceedings as the same was permitted in terms of a decision taken in the me eting of the Sub Divisional Level Selection Board, Guwahati on 5.5.97 and lack o f challenge thereto by the State respondents till date. To bolster his arguments , Mr Bhuyan placed reliance of the decisions of the Apex Court in Agra District co-operative Bank Ltd. -vs- Prescribed Authority, Labour Court, U.P. & Ors., AIR 2001 SC 2396 and in East Coast Railway & Anr. -vs- Mahadev Appa Rao & Ors., (20 10) 7 SCC 678. In reply, Mr. Deka with reference to the records pertaining to the selection co ncerned has urged that no select list in fact had been drawn up vis-à-vis the LP / ME Schools of the Jalukbari Legislative Assembly Constituency and, thus, the a ssertion of the appellants/ writ petitioners to the contrary is misconceived. Dr awing the attention of this Court in particular to a photocopy of the select lis t for LP/ ME Schools of the Jalukbari Legislative Assembly Constituency, the lea rned counsel argued that as it would appear therefrom, the process relatable the reto was left incomplete as two of the members of the Interview Board had not si gned the proceedings. Moreover, it did not reach the state of authentication by the Director of Elementary Education, Assam as required by Rule 3 of the Rules t o be acted upon for the purpose of appointment therefrom. According to Mr Deka, the impugned order dated 30.9.2010 is unassailable in the facts and circumstance s of the case and, therefore, no interference with the impugned judgment and ord er is called for. We have cautiously considered the pleadings available and the records laid befor e us. Admittedly, the recruitment process involved was governed by the Rules whi ch, under Rule 3, prescribe the method of selection of the candidates to be even tually appointed. Thereunder following the publication of the advertisement to f ill up the number of vacancies as assessed, the selection board is to scrutinize and process the applications received as well as the accompanying testimonials of the candidates. Thereafter, on the completion of the interview by different I nterview Committees marks are to be compiled by the selection board and lists ar e to be prepared Legislative Assembly Constituencywise in the descending order, whereafter, the same is to be authenticated by the Director of Elementary Educat ion, Assam. In terms of Rule 3 of the Rules, the select list(s) so prepared is / are to be published in the manner as prescribed whereafter appointments are to be made in order of merit from the authenticated select lists. The Rules prohib it in categorical terms appointments from outside the select list indicating tha t the same, if made, would be ab initio invalid with the exception, however, of compassionate appointments by the Government as per the relevant Rules. As would be obvious from the ordainment of Rule 3, a select list based on marks awarded to the candidates by the Interview Committee is an indispensable pre-requisite f or appointment therefrom following the authentication thereof by the Director of Elementary Education, Assam. No appointment, therefore, is contemplated under R ule 3 in absence of any select list prepared strictly in terms thereof. As the records would reveal, the Government of Assam in the Education (E) Depart ment vide Notification No. B(2) 11/667/94/168 dated 30.4.97 had constituted a Su b-Divisional Level Selection Board for Guwahati Sub-Division of the Kamrup Distr ict comprised of Sri Biraj Kumar Sarma, Minister as the Chairman and the Deputy Inspector of Schools as the Member-Secretary thereof. 15 other members were also inducted including one Sri Nurul Hussain, Deputy Speaker and Sri Bhrigu Kumar P hukan, MLA (since deceased). The said Notification permitted the Chairman of the Selection Board to constitute as many Interview Committees as he/ she would con sider necessary from amongst the members of the Selection Board. The Sub-Divisional Level Selection Board, Guwahati in its meeting held on 5.5.97 constituted the Interview Committees as indicated hereinbefore comprising of fo ur members. Out of these, Md Muslemuddin Ahmed and Sri Narayan Chandra Deka were the representatives of Sri Nurul Hussain, Deputy Speaker and Sri Bhrigu Kumar P hukan (since deceased), MLA respectively. A bare perusal of the Notification dat ed 30.4.97, in our view, predicated that the Interview Committee could be consti tuted from amongst the members of the concerned Sub-Divisional Level Selection B oard and not otherwise. In this view of the matter, Md. Muslemuddin Ahmed and Sr i Naryan Deka as representatives of the members, namely, Nurul Hussain, Deputy S peaker and Bhrigu Kr. Phukan, MLA could not have been inducted. The plea that th e decision of the Sub-Divisional Level Selection Board, Guwahati taken in its me eting held on 5.5.97 constituting Interview Committees not having been questione d by the State respondents at any point of time it is impregnable to any assailm ent lacks persuasion. In our considered opinion, such composition of the Intervi ew Board being in departure from the enjoinment of the Notification dated 30.4.9 7 in absence of any ratification of such divagation, the proceedings conducted b y it were even otherwise non-est. We have carefully scrutinized the Proceedings Book of the Sub-Divisional Level S election Board for Guwahati Sub Division, Elementary Education, Kamrup, Assam. T he proceedings of the meeting held on 15.6.98 would reveal that no select list f or the post of Assistant Teachers in ME Schools of the Jalukbari Legislative Ass embly Constituency had either been drawn up or approved by it. The Resolution No .2 of that date is to the effect that the proceedings for preparation of the lis t had remained incomplete and was, thus, postponed till the next meeting. In the meeting held thereafter on 31.12.98, no exercise to this effect was undertaken. In the next meeting of the Sub-Divisional Level Selection Board (E) Guwahati he ld on 8.7.99, it was resolved vide Resolution No.5 that the decision with regard to the final select list for recruitment to the posts of teacher for the Jalukb ari, Hajo and Dispur Legislative Assembly Constituencies would be taken in the n ext meeting. Though a meeting thereafter was held on 5.3.2001, nothing transpir es therefrom vis-à-vis this issue. The Proceedings Book of the Sub-Divisional Le vel Selection Board for the Guwahati Sub Division, therefore, does not disclose that any final decision had been taken pertaining to the select list for appoint ment of Assistant Teachers to the ME Schools of the Jalukbari Legislative Assemb ly Constituency. The photocopy of the selection list for LP and ME Schools of the Jalukbari Legis lative Assembly Constituency as available on record, on their face reveal that t hough the Interview Committee was comprised of four members, two of them did not sign the same. In many of the sheets only one of the members had put his signat ure. The Director of Elementary Education, Assam also did not authenticate these lists. In this view of the matter, having regard to the prescriptions of Rule 3 of the Rules, we are constrained to hold that there exists no select list conte mplated thereby either to be published or to be acted upon for the purpose of ma king appointment therefrom. The plea that the select lists for the Hajo and Disp ur Legislative Assembly Constituencies had meanwhile been published and appointm ents made on the basis thereof, in our view, does not further the case of the ap pellants. As the records available do not disclose a valid select list for the J alukbari Legislative Assembly Constituency for appointment as Assistant Teachers of ME Schools situated within the limits thereof, in our considered opinion, ne ither the impugned order dated 30.9.2010 nor the decision of the learned Single Judge in the attendant facts and circumstances, warrant any interference. Though the enquiry report, as is highlighted on behalf of the appellants, indicates ex istence of the relevant records pertaining to the selection, the disclosures the refrom as recited hereinabove, in our comprehension, are of no avail to them. Th e omission on the part of the Commissioner & Secretary to the Govt. of Assam, Ed ucation (E) Department to refer to this aspect of the matter in his order dated 30.9.2010 is also of no consequence. The authorities cited at the Bar, in the teeth of the materials available on rec ord, also do not consolidate the assertions of the appellants/ writ petitioners. That meanwhile a decade and a half has elapsed since the process was initiated in the year 1996 also cannot be disregarded. In the above view of the matter, we find no merit in the appeal which is dismiss ed. No costs.