Gauhati High Court
Majam Ali vs The State Of Assam And 5 Ors on 15 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 777
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/4
GAHC010138842017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5192/2017
1:MAJAM ALI
S/O. MUSHA SEIKH, VILL. KORTIMARI, P.O. DHUMERGHAT, P.S.
LAKHIPUR, DIST. GOALPARA, ASSAM, PIN-783101.
VERSUS
1:THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMM. and SECY., ELEMENTARY EDUCATION DEPTT.,
DISPUR, GHY.-781006.
2:THE DISTRICT ELEMENTARY EDUCATION OFFICER
ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE DISTRICT ELEMENTARY EDUCATION OFFICE
GOALPARA DISTRICT.
4:THE DISTRICT SCREENING COMMITTEE
GOALPARA
REP. BY BY ITS CHAIRMAN-CUM-DEEO
GOALPARA.
5:THE HEAD MASTER
AMBARI KORTIMARI M.E. MADRASSA
P.O. DHUMERGHAT
P.S. LAKHIPUR
PIN-783129
6:SHAH ALAM
S/O. FAZAR ALI
VILL. KORTIMARI
P.O. DHUMERGHAT
P.S. LAKHIPUR
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DIST. GOALPARA
ASSAM
PIN-783129
Advocate for the Petitioner : MR.A R SHOME
Advocate for the Respondent : SC, ELEMEN. EDU.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 15-12-2018
JUDGMENT & ORDER (ORAL)
Heard Mr. S Chouhan, learned counsel for the petitioner, Mr. N. Sarma, learned Standing Counsel for the Elementary Education Department and Mr. M. Dutta, learned counsel for the respondent No.6. None appears for the respondent No.5.
2. An employment notice dated 20.01.2006 was issued by the Headmaster of Ambari Kortimari ME Madrassa, wherein a condition was imposed that the intending candidates must be aged between 18 and 36 years as on 01.01.2006. Pursuant to the said selection, the petitioner was placed at Serial No.2 in order of merit and the respondent No.6 was at Serial No.1. Accordingly, by the order dated 03.01.2017, the respondent No.6 was appointed. The appointment of the respondent No.6 has been assailed by the petitioner on the ground that as on 01.01.2006, as provided in the advertisement, he was beyond the age of 36 years and as such, was not even qualified to offer his candidature.
3. Mr. M. Dutta, learned counsel for the respondent No.6 refers to a communication dated 16.12.2005 of the Director of Elementary Education, Assam, which pertains to filling up the vacant post of Chowkidar in the Government Lower Primary/Upper Primary Schools. By requiring the appropriate authority to initiate the selection process, the said communication also contains a sample advertisement by following which the advertisements are to be published. In the communication dated 16.12.2005, a sample employment notice was also enclosed, which provided that the advertisement be made in the format indicated therein. In Page No.# 3/4 the format that was enclosed, it was provided that the candidate must be aged between 18 and 36 years as on 01.01.2005. Accordingly, Mr. Dutta submits that the employment notice pursuant to which the selection process was undertaken, must be read to have provided that the candidate must be between 18 and 36 years as on 01.01.2005 and if it is so, the respondent No.6 was within the prescribed age limit.
4. Mr. Dutta, learned counsel makes a further submission that the respondent No.6 having been appointed and working, an equity has flowed in his favour that his appointment should not be interfered thereafter.
5. As regards the contention of equity, the Court is unable to accept it to the extent that firstly he was appointed on 03.01.2017 and the writ petition was preferred immediately thereafter and secondly, if the respondent No.6 was not even qualified to offer his candidature, but was incorrectly appointed for any reason, the Court does not feel that having been so appointed, an equity would flow in his favour. As regards the other contention, pertaining to the age between 18 and 36 years as on 01.01.2005 as mentioned in a sample employment notice, only the essential ingredients thereof are to be taken into consideration by the authorities while issuing the actual employment notice and not that the provision thereof be taken as it is.
6. From the said point of view also, the provision of the age between 18 and 36 years as on 01.01.2005 would have to be construed to be a sample provision rather than the actual provision to be made in the employment notice.
7. Mr. N. Sarma, learned Standing Counsel for the Elementary Education Department states that the selection of the respondent No.6 was approved by the Director of Elementary Education, Assam being the Head of the State Level Committee.
8. The Court is of the view that such approval by the Director was made without taking into consideration of the aforesaid aspect that as per the employment notice, the age of the candidate must be between 18 and 36 years as on 01.01.2006.
9. In view of the above, the Court interferes with the approval granted by the Director of Elementary Education, Assam. As the specific order, by which the approval was granted has not been produced on record, it is therefore, provided that whatever order or approval was Page No.# 4/4 granted by the Director of Elementary Education, Assam, the same stands interfered. It being so, the Director of Elementary Education, Assam shall give a fresh consideration to the selection of the respondent No.6 by taking into consideration as to what has been indicated above. The same be done within a period of three months from the date of receipt of a certified copy of this order.
10. Upon giving the fresh consideration, the Director shall pass a reasoned order and depending on the content of the reasoned order, consequential action be also taken. In doing so, the Director may give a personal hearing both to the petitioner and the respondent No.6 as well as the Headmaster of the school and allow them to produce any relevant material that they may desire to produce.
The writ petition stands allowed to the extent indicated above.
JUDGE Comparing Assistant