High Court
Case Details
WP(C) 3137/2012 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Advocates Mr. D.K. Sarmah, Mr. B.D. Konwar appearing for the petitioners. The departmental authorities are represented by Mr. U.K. Goswami, learned Standi ng Counsel, Education Department. Mr. S. Borthakur, advocate appears for the pri vate respondents. 2. The petitioners and the private respondents were appointed as Assistant Teachers of High Schools on the basis of 2 purported Select Lists of Barkhetri L egislative Assembly Constituency. The 2nd page of both the Select Lists are simi lar whereas the 1st page are different. The Select List doesn’t contain the sign ature of all the members of the Selection Board and there is discrepancy in the date given by the Chairman with his signature. In the 1st page of the Select Lis ts produced in connection with the WP(C) 3949/2001, the name of the petitioner A nirudda Barman in the WP(C) 2582/2012 is missing and these defects were noticed earlier by the Court in the WP(C) 3949/2001. 3.
Decision
When illegal appointments were suspected to have been made to schools in Borkhetri Constituency criminal case was registered on the anomalies of selecti on and appointment of teachers in the schools in the Barkhetri Constituency. How ever this Court through the order dated 20.3.2007 disposed of the earlier WP(C) 3949/2001 and gave liberty to the departmental authorities to decide on the cour se of action on the errant officials as well as on the illegal appointees. 4. Some of the aggrieved persons filed the Writ Appeal 423/2007 where the p resent petitioners were arrayed as respondents 5 to 19. The Appellate Court on 3 .4.2010 passed the following order : (cid:28)From the observations made by the learned Single Judge, it would appear that certain appointments were made from the first select list so also from the second select list. It also appears that the stand of the department was that b oth the select lists were illegal. If that be so, the department is obliged to i nform the Court that the persons who were appointee either from the first select list or from the second select list are still continuing or not and if yes then why they have not yet been terminated. (cid:29) 5. Thereafter the Writ Appeal 423/2007 was taken up again on 1.7.2010 where the following order was passed by the Division Bench :- (cid:28)Pursuant to the order dated 8.6.2010 passed by this Court, learned coun sel for the State has taken instructions and he informs us that the investigatio n by the police has been completed with regard to two select lists that were pre pared for the appointment of teachers for the Barkhetri Constituency in the Dist rict of Nalbari. He further says that a chargesheet has since been filed. We find from the prayer made in the writ petition that apart from asking for their appointment, the petitioners also asked for quashing of the appointme nt of Respondent Nos. 5 to 18 before the learned Single Judge. This has also bee n reflected in the order dated 3.6.2010 passed by the Division Bench. Under the circumstances, we direct the Respondents to file an affidavit indicating the up-to-date steps taken with regard to the investigation and filin g of a chargesheet as well as the steps taken to implement the order of this Cou rt by quashing the appointment of the persons which were irregularly appointed. The affidavit be filed by the Respondents within a period of four weeks from today. The matter be listed in the category of Part-II final hearing list as pe r its own turn. A copy of this order be given to learned Counsel for the State. (cid:29) 6. Since the order of the Division Bench was not implemented, the appellant s filed the Contempt Case 320/2011 (Dilip Deka vs. L.C Singh and others) but thi s contempt proceeding was closed subsequently because of the steps taken by the State authorities. 7. Following the order dated 3.6.2010 in the W.A. 423/2007 the DSE, Assam g ave direction to the Inspector of Schools, Nalbari to take steps to terminate th e illegally appointed teachers. But when the termination exercise was not carrie d out in time, the Appeal was taken up again by the Division Bench on 4.5.2012. The displeasure of the Court was recorded in the following manner : (cid:28)Such a plea cannot be accepted. If this Court has passed an order, it w as responsibility of the Commissioner & Secretary to the Government of Assam, Ed ucation Department, to ensure its compliance. Inspector cannot be beyond control of the Commissioner. No action is shown to have been taken to remedy the wrongf ul action of the Inspector. Thus prima facie, case is made out for proceeding wi th the contempt. Let the Commissioner & Secretary, Government of Assam, Education Departm ent remain present in person on the next date to show cause why he may not be pr oceeded against for disobedience of order of this Court. List again on 24th May 2012. The order may be communicated to the concerned officer by learned Standi ng Counsel Education Department. (cid:29) 8. Perhaps in pursuant to the order(s) in the W.A. 423/2007, the Inspector of Schools, Nalbari issued show-cause-notice(s) but the petitioners deny receipt of any show-cause-notice from the Inspector of Schools, Nalbari. Thereafter on the basis of the Government W.T. Message dated 21.5.2012 the show-cause-notice(s ) issued earlier on 18.5.2012 was cancelled. Then on 21.5.2012, termination orde r(s) was issued against the petitioners by the Inspector of Schools, Nalbari. 9. The learned Counsel for the petitioners submit that their clients have b een serving since last 13/14 years and accordingly it is argued that even if the y were appointed through an illegal process, their service could not have been t erminated, without affording opportunity to the appointed teachers. 10. Mr. D.K. Sarmah, and Mr. B.D. Konwar also contend that the private respo ndents were also appointed through a similar selection process but no adverse ac tion was taken against the beneficiaries who are placed on the same footing. 11. In response, Mr. S. Borthakur submits that the private respondents were not arrayed in the earlier proceeding(s) including in the W.A. 423/2007 and he a ccordingly contends their continuance is being questioned for the first time, in the present cases. 12. For the petitioners, advocate Mr. B.D. Konwar projects that Akhil Kr. De v Sarma, Rajendra Kalita and Padmadhav Das were respondents 10, 11 & 12 in the W A 423/2007. He submits that names of these 3 persons had appeared in the 2nd pag e of both Select Lists of Barkhetri Constituency and therefore their causes shou ld not be segregated from the others, of those controversial Select Lists. Mr. U.K. Goswami, learned Standing Counsel, Education concedes to a lega 13. l obligation to afford hearing before any penal action is taken. But he submits that because of the pressing orders passed by the Division Bench in the WA 423/2 007, the Government had to take quick action and that is why the termination ord er was issued without completing formalities after cancelling the show-cause-not ice(s) issued earlier to the illegal beneficiaries. 14. Since the legality of the selection process was investigated by the poli ce, this Court is refraining from making any comments on that aspect of the case . But at the same time, the State is duty bound to comply with the orders passed by the Division Bench in the WA 423/2007, where it was specifically ordered on 3.4.2010 that if the illegal appointees from the 1st or the 2nd Select List of t he Barkhetri Constituency are still continuing, explanation has to be given why their service have not been terminated. But the Court finds that while the termi nation order has been issued on 21.5.2012 against the writ petitioners, no actio n has been taken against the private respondents, whose names appear in the same select lists and who might also be beneficiaries of the illegal appointment pro cess. But if penal action is considered, the State must afford opportunity to t he persons before any adverse action is taken against serving employees. 15. From the averments in the counter affidavit filed by the DSE, Assam, it is clear that the show-cause-notices issued earlier on 18.5.2010 was cancelled a nd was not taken to their logical conclusion. Thereafter the impugned terminatio n order was abruptly issued against the petitioners by the Inspector of Schools, Nalbari on 21.5.2012. Therefore it is apparent that the affected persons did no t have any opportunity to defend their cause and therefore their termination was not through a legally permitted process. 16. In the above circumstances, the State authorities are given the liberty to proceed against the persons appointed from the 2 controversial select list(s) of the Barkhetri Constituency. The process should start with show-cause-notice( s) and appropriate action is permitted to be taken by the appointing authority o nly after replies are considered. The noticee(s) should be the petitioners, the private respondents and the 3 persons who claim to be from the Nalbari Constitue ncy but whose names figure in the controversial select list(s) of Barkhetri Cons tituency. After considering the replies from the noticee, speaking order be pass ed. The earlier termination order dated 21.5.2012 issued by the Inspector of Sch ools, Nalbari will abide by the final decision to be taken, in the de novo proce eding. 17. cost. The cases are disposed of with the above direction without any order on