High Court
Case Details
WP(C) 1403/2009 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. I. Choudhury, the learned Counsel appearing for the petitioner. The r espondents 1, 2 & 3 are represented by Mr. S.M.T. Chistie, the Standing Counsel, Education Department. Mr. R. Islam, the learned Counsel appears for the private respondents 5 & 6. 2. The petitioner offered her candidature for the post of Assistant Teacher in the Chakchaka Government M.V. School in Barpeta District by respondi ng to the employment notice dated 4.2.2006 (Annexure-B). Although 5 vacancies we re notified, through retirement and promotion within the year 2006, 3 additiona l anticipated vacancies were also available for consideration for the recruitmen t process in pursuant to the employment notice dated 4.2.2006. 3. For appointment to Upper Primary Schools, the Director of Elemen tary Education, Assam (DEE) had issued a circular on 5.12.2005 (Annexure-A) spec ifying the process for filling up the teacher’s vacancy, inter alia, in the Uppe r Primary Schools. According to the guidelines, District wise Screening Committe es were to be constituted and after the candidates are interviewed, the Screenin g Committee is required to prepare a consolidated list in order of performance a nd this list should contain five times the number of posts notified for recruitm ent. After the consolidated list is received from the District Screening Committ ee, the DEE is to finalise the list. 4. In the sample Employment Notice the extent of reservation for SC /ST & OBCs were indicated and this covered 49% of the available vacancies. In ad dition, reservation was envisaged for children of retired teachers to the extent of 10%, disabled category 3% and Ex-servicemen 2% more. But since total reserva tion can’t exceed 50%, the additional categories specified in the sample Employm ent Notice for the children of retired teachers, disabled and Ex-serviceman cate gory can’t naturally be vertical reservation but will be horizontal reservation , to conform to the mandate of law laid down by the Apex Court. (see M.R. Balaji vs. State of Mysore, AIR 1963 SC 649 and Indra Sawhney vs. Union of India, 1992 (Suppl.) 3 SCC 219) 5. The District Elementary Education Officer, Barpeta under his cov ering letter of 10.12.2008 (Annexure-E) forwarded a list of selected candidates in order of merit for the Chakchaka Government M.V. School and this list of Gen eral Category candidates contained names of 20 short-listed candidates. As per t he assessment of merit, the candidate at the 1st position was awarded 156.20 mar ks while the candidate at the 20th position was awarded 127.00 marks. With her t otal score of 139.00, the petitioner’s name was shown at the 4th position in thi s select list (Annexure-F), in order of merit. But despite empanelment in the 4th merit position, the petitione 6. r was not appointed and instead appointment order was issued on 25.2.2009 granti ng appointment to 4 teachers. The candidate in the 1st merit position namely Rum ashree Das was appointed through a separate order. 7. Assailing the appointment of the respondent No.6 Anjan Kr. Sarma and respondent No.5 Pranali Nath, advocate Mr. I. Choudhury argues that these 2 candidates were not empanelled in the general select list prepared by the Distr ict Level Committee (DLC). But from the counter affidavit filed by the private r espondents it appears that separate lists for OBC category and retired teachers category were prepared and the names of the private respondents had appeared in the 1st position of these separate list. 8. But the petitioner submits that only a consolidated list was req uired to be prepared for all category of candidates and only thereafter horizont al reservation could have been resorted to from amongst the empanelled candidate s from the consolidated list. The petitioner points out that the respondent No.6 was awarded with 98.13 marks and the respondent No.5 was credited with 136.00 m arks by the District Screening Committee and accordingly it is projected that ev en if the 2 private respondents for argument sake are brought into the consolida ted list, their merit positions will be below the petitioner as she scored 139.0 0 marks. Therefore it is argued that by virtue of his poor performance, the resp ondent No.6 Anjan Kr. Sarma could not have been included in the consolidated lis t as the list can’t include anyone beyond 5 times the notified vacancies and the last candidate in the list of twenty scored 127.00 marks. 9. If we ignore the 3 anticipated vacancies for the year 2006 and c onfine the process of appointment to only the 5 notified vacancies, as per the p rescribed procedure, a consolidated select list of twenty was required to be pre pared in order of merit by the District Select Committee. Although the final st amp of approval to the select list is to be given by the Director, since the DEE , Assam, himself doesn’t assess the performance of the candidates, none beyond t he select list prepared by the District Screening Committee could have been appr oved for appointment by the Director. 10. The preparation of separate list for the OBC category and the re tired teachers category to accommodate the respondents 5 & 6 are also found to b e unjustified since a consolidated list was ordered to be prepared for all the a vailable vacancies. 11. As earlier stated the marks granted to the 2 private respondents by the District Screening Committee may or may not entitle them to be included in the consolidated select list but what is important is that the reservation ex ercise for appointment could only be made from amongst the empanelled candidates in the consolidated select list and at the preliminary stage, separate select l ists for different categories could not have been made, as per the notified sche me. 12. If the respondent No.6 was being considered as a son of a retire d teacher, his performance should have justified his inclusion in the consolidat ed select list and only thereafter his name could have been considered for the r eserve category post meant for children of retired teacher. The respondent No.5 should have also been similarly considered as an OBC category candidate. But ins tead separate list was prepared for the two reserve category candidates, beyond the consolidated general select list of twenty short-listed persons and through this process, of appointment of less meritorious candidates were facilitated by the respondents. This certainly was inconsistent with the procedure laid down by the DEE, Assam in his circular dated 5.12.2005 (Annexure-A). 13. In view of above, it has to be held that non-appointment of the petitioner was unjustified as she secured 139.00 marks and was empanelled in the 4th position in order of merit in the select list prepared by the District Scre ening Committee. Therefore the respondents are directed to appoint the petitione r as an Assistant Teacher in the Chakchaka Government M.V. School. Since the app ointment of respondent No.6 is found to be unjustified, to facilitate the appoin tment of the petitioner, the appointment of respondent No.6 is held to be bad an d is quashed. It is ordered accordingly. But even after accommodating the petitioner, if it is possible t 14. o appoint to respondent No.6 as a son of a retired teacher against the earmarked quota, the authority may consider the same in accordance with law. 15. cost.
Decision
In view of the above order, the case stands allowed without any order on