Smt. Gitanjali Talukdar v. State of Assam & Ors

2. This batch of writ petitions raising the same issue, have been heard tog ether and are being disposed of by this common judgement and order. For convenie nce, the writ petition being WP(C) No. 3089/2011 (Smt. Gitanjali Talukdar Vs. St ate of Assam & Ors) has been taken as the lead case.

3. The petitioners are aggrieved by the Annexure-18 order dated 7.6.2011 by which their services have been terminated. As reflected in the order itself, su ch a course of action was adopted pursuant to the judgement and order dated 6.8. 2010 passed in WP(C) No. 3178/2008. In the said proceeding, the Court was concer ned with the selection and appointment of subject teacher in Zoology for which a n advertisement was issued in 1992. The selection was conducted in 1995 and a se lect list was published on 12.6.1995. The petitioner involved in the said writ p etition, filed the writ petition claiming that many candidates below her in the select list had been appointed superseding her claim. It appears that during the course of hearing of the said proceeding, the Court directed for an enquiry int o the matter and consequently a report was submitted by the SIT. On perusal of t he said report and other materials, the writ petition was disposed of by the afo resaid judgement and order with the following observations and directions :- (cid:28)10. In this case it has become quite apparent that undeserving candidates were appointed during 1995-2001 to the 20 posts of Zoology Subject Teachers in diffe rent provincialised Higher Secondary Schools in Assam. When such illegal appoint ments are found to have been made appropriate judicial order(s) for termination of such illegal appointment has to follow. In the present case however all such appointees are not before the Court i.e. Smti. Manimala Kakoti, Smt. Banti Taluk dar, Smti. Gitanjali Deka (from Group-A) ; Smt. Bijuli Chakraborty (from Group-B ) and Smti. Dipali Bora (from Group-C). All the relevant facts i.e. circumstance s in which the 7 regularisation under Group-B and 3 regularisation under Group-C were made are not before the Court. Whether such regularisation was against the advertised posts and if not what had happened to the advertised posts is also n ot known with certainty. In such circumstances it may not be appropriate for the Court to pass any order for cancellation of the appointments. But considering t he information gathered by the SIT, we deem it appropriate to direct the State t o take into account the report of the SIR and thereafter take appropriate steps to discontinue the services of such appointees who got undeserved appointments. Of course if any adverse action is to be taken against the appointee, they ought to be given an opportunity before termination orders are issued. Since relevant Government records pertaining to appointment in public of 11. fices have gone missing and were consequently withheld form scrutiny of the Cour t, necessary steps be taken by the State to unearth the missing records. Departm ental action be taken against the persons identified by the SIT as responsible f or the above. The State must also fix responsibility and proceed against the err ant officials who may be found to be responsible for the appointments that may b e eventually set aside by the State. In so far as the relief claimed by the petitioner, considering that she 12. is at merit position No. 47 in the select list, she can claim appointment only a s per turn. If vacancies become available through termination of illegal appoint ees and if appointment is refused by those who are in higher merit position that the petitioner, only then the petitioner can be offered appointment. Accordingl y if the petitioner’s turn comes in order of merit she may then be appointed to the post of Subject Teacher of Zoology by virtue of her selection. However, cons idering the fact that the petitioner had largely conducted the present proceedin g on her own and her painstaking efforts and perseverance have had some impact o n attempts at cleansing public life, the Court directs that the petitioner shoul d be suitably compensated for the efforts by payment of cost of Rs. 25,000/- (Ru pees twenty five thousands) only which will be paid to her by the State Governme nt in the Education Department within 30 days from today. (cid:29) Pursuant to the said judgement and order, the petitioners were issued wi 4. th the identical show cause notice dated 10.5.2011. For a ready reference, the s how cause notice issued to the petitioner involved in WP(C) No. 3089/2011 is quo ted below :- (cid:28)GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION :::: ASSAM KAHILIPARA :::: GUWAHATI-19 No. GB-EST/DSC/CC/125/2008/Pt/171 Dated Kahilipara, the 10th May, 2011 From : Sri B.N. Talikdar, Director of Secondary Education, Assam, Kahilipara, Ghy-19. To, Smti. Gitanjali Talukdar, Subject Teacher in Zoology, Kamrup Academy HS School, Ghy, PO - Chenikuthi, Dist Kamrup. Sub : Show Cause Notice. Ref :

1.Govt. letter No. ELC/WP(C) 3178/2008/429/563 dtd. 3.5.2011.

2. C) No. 3178/2008 filed by Zulekha Wahida Ahmed. Hon’ble High Court’s order dt. 6.8.2010 passed in PIL No. 14/2010 in WP( Sir, It is seen from the records / papers that you have received offer of appointment as Subject Teacher in Zoology on ad-hoc basis which is quite contrary to the ru les / procedures in force at that point of time. Further an advertisement was ma de on June/1992 for filling up of 20 posts of Subject Teacher in Zoology and acc ordingly the selection was made on October/1995 by the State Selection Board, As sam wherein your name appeared at Sl. ’X’ which is beyond the zone of 20 posts o f Subject Teacher in Zoology advertised in June, 1992. Hence your appointment is undeserved and subsequent regularisation as Subject Te acher in Zoology is found to be nor proper and hence treated as illegal and as s uch as instructed by the Govt. vide letter No. ELC/WP(C) 3178/2008/429/563 dtd. 3.5.2011, you are hereby required to show cause as to why your service will not be terminated / discontinued. Accordingly show cause notice is served and you ar e asked to appear personally along with the replies to the show cause before the Committee for hearing in the office of the Director of Secondary Education, Ass am on 19.5.2011 at 11.00 AM positively along all relevant papers / documents con nected with your appointment / regularisation as Subject Teacher in Zoology, fai ling which exparty decision will be taken. This is issued in compliance with the Hon’ble High Court’s order passed in PIL No. 14/2010 in original WP(C) No. 3178 /2008 filed by Smti. Julekha Wahida Ahmed - vs- state of Assam and others. Sd/- Disciplinary Authority & Director Secondary Eduction, Assam, Kahilipara, Guwahati-19. (cid:29) On receipt of the said show cause notice, the petitioners submitted thei 5. r individual replies in which it was contended that they were not the beneficiar ies of the selection conducted in the year 1995 pursuant to the advertisement is sued in 1992. Their specific plea was that their earlier appointments were regul arized pursuant to the recommendation made by the Screening Committee constitute d for the purpose. In this connection, the petitioners have referred to the Anne xure-5 letter dated 16/10/1998, by which the Govt. of Assam in the Education (Se condary) Department conveyed the decision to constitute the screening Committee for the purpose.

6. Pursuant to the said decision to examine the cases of such appointees by Screening Committee, an advertisement was issued, a copy of which has been anne xed as Annexure-6. The said advertisement is dated 20.11.1998. In the advertisem ent it was specified that screening of the subject teachers would be taken up by the Screening Committee on the dates notified in the advertisement.

7. It was upon such screening done by the authorities, the petitioners were appointed. The petitioner involved in WP(C) No. 3089/2011 was appointed by Anne xure-8 order dated 22.3.2000. The said order of appointment has a reference to t he order dated 16.10.1998 by which the screening Committee was constituted.

8. Thus, according to the petitioners they were never appointed pursuant to the selection conducted in the year 1995 and thus there is no question of the a ppointments being illegal. It has been contended that since in the aforesaid dec ision, the Court was concerned with the selection that was conducted in 1995 and the excess appointments made thereunder, the case of the petitioners did not co me within the purview of the said proceeding.

9. It will be appropriate to refer to the SIT report, a copy of which has b een annexed to the counter affidavit filed by the respondents. In the said SIT r eport, it has been clearly indicated that the services of the petitioners were r egularized on the basis of the SSB selection and approval of the same by the Gov t. vide letter No. B(3) S.515/1995/38 dated 3.1.1996. There is no adverse commen ts made by the SIT in its report against the appointment of the petitioners. How ever, the respondents in their counter affidavit have taken the plea that the se rvices of the petitioners could not have been regularized in the manner and meth od in which the same was done. Above plea of the respondents is not available in the impugned show caus 10. e notice. In the notice dated 10.5.2011 only reference made was to the selection of 1995 and the purported appearance of the name of the petitioners in the said select list. However, nothing was indicated in the show cause notice as to in w hich place their names had appeared. When it is the case of the petitioners that they were not selectees of 1995 selection, the show cause notice itself was red undant as the same was on the issue in respect of the purported illegalities com mitted towards appointing from the select list whose names were either included in the 1995 select list or which were not included in the select list. When the case of the petitioners were altogether on a different footing i.e. that their s ervices were regularized pursuant to the screening and the same was reflected in the SIT report, the authority passing the impugned order ought to have taken no te of the said order, which was agitated by the petitioners.

11. From the materials on records, it appears that the respondents while pas sing the impugned order preceded by the impugned show cause notice, was obsessed with the observations made in the judgement referred to above, unmindful of the fact that each case was to be decided on its own merit taking note of the pleas / defence taken by the petitioners, who had received the show cause notice. The re is no waiver in the impugned order about the pleas raised by the petitioners in their impugned show cause replies. In WP(C) No. 3101/2011 disposed of on 6.2. 2012 (Ajit Kr. Goswami Vs. State of Assam & others) all these aspects have been discussed.

12. For all the aforesaid reasons, I am inclined to allow the writ petitions by setting aside and quashing the impugned order dated 7.6.2011 passed by the D irector of Secondary Education, Assam, so far as the same relates to the present petitioners. Consequently, the petitioners shall be deemed to be in service all throughout with all consequential benefits.

13. Writ petitions are allowed. There shall be no order as to costs.