Gauhati High Court
Sri Tarique Anwar Laskar And 113 Ors vs The State Of Assam And 2 Ors Represented ... on 24 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 207
Author: Ajai Lamba
Bench: Ajai Lamba, Soumitra Saikia
Page No.# 1/17
GAHC010042912020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Writ Appeal No.37 of 2020
1:SRI TARIQUE ANWAR LASKAR AND 113 ORS
S/O ANWAR HUSSIAN LASKAR,
R/O VILL BISHNAPUR, P.O. LALA, DIST. HAILAKANDI, ASSAM, PIN 788163.
2: ILA SARKAR
W/O GOPAL CHANDRA SARKAR
R/O VILL. SHANTIPARA PART-II P.O. NPS LAMDING
DIST. HOJAI ASSAM PIN 782447.
3: SMTI UTPALA ROY
D/O LATE SWADESH ROY
R/O MILLONPUR ADARSHA NAGAR P.O.
P.S. AND DIST. NAGAON PIN 782001.
4: SRI AKHTAR HUSSAIN LASKAR
S/O NASHIR UDDIN LASKAR
R/O WARD NO. XI HASHIM CHOUDHURY ROAD
P.O. R.P. ROAD DIST. HAILAKANDI ASSAM PIN 788155.
5: SMTI ANJALI SUKLABAIDYA
S/O MANIK LAL SUKLALBAIDYA
R/O VIIL. ABDULLAPUR PART-I P.S. LALA
DIST. HAILAKANDI ASSAM PIN 788155.
6: SMTI SARITA BHATTACARJEE(CHAKRABARTY)
D/O SUBHASH BHATTACHARJEE
C/O PARTHA PRATIM CHAKRABARTTY
TOWN SP ROAD P.O. AND P.S. LALA DIST. HAILAKANDI ASSAM PIN 788163
7: SHALINA PARBIN MAZUMDER
S/O MOTUK MAZUMDER
C/O SUZZADUR RAHMAN MAZUMDER R/O LALA TOWN
WARD NO. I HAILAKANDI ASSAM PIN 788163.
8: TARIN AKTAR CHOUDHURY
S/O BAKTAR UDDIN CHOUDHURY
R/O VILL. JALALPUR LALA HAILAKANDI ASSAM PIN 788163.
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9: PINAKI PAUL
S/O PRABIR KANTA PAUL
R/O PANCHGRAM COLONY HAILAKANDI ASSAM PIN 788802.
10: JASHIM UDDIN MAZUMDER
S/O LATE JAMIR UDDIN MAZUMDER
R/O PURBOSUNAPUR HAILAKANDI ASSAM PIN 788155.
11: IKBAL AHMED LASKAR
S/O LATE SAWKAT ALI LASKAR
R/O NIAMOTHPUR HAILAKANDI ASSAM PIN 788163.
12: KABIR AHMED LASKAR
S/O AFTAB UDDIN LASKAR
R/O DUDPUR HAILAKANDI ASSAM PIN 788151
13: KAMRUL HUSSIAN LASKAR
S/O BOSIR UDDIN LASKAR
R/O BORBOND HAILAKANDI ASSAM PIN 788164.
14: BEGOM REHANA PARBIN
S/O NUR UDIDN LASKAR
R/O LAKSHMINAGAR PT-II HAILAKANDI ASSAM PIN 788164.
15: TAJEL HUSSAIN BARBHUIYA
S/O MUJIBUR RAHMAN BARBHUIYA
R/O KATLICHERRA GRANT HAILAKANDI ASSAM PIN 788161.
16: JABED AHMED LASKAR
S/O NAZIM UDDIN LASKAR
R/O BHATIRKUPA PT-III HAILAKNDI ASSAM PIN 788152
17: DALIM UDDIN BARBHUIYA
S/O LATE MUZAMIL ALI BARBHUIYA
R/O CHANDRAPUR HAILAKNDI ASSAM PIN 788155.
18: ZAKIR HUSSAIN BARBHUIYA
S/O NURUL ISLAM BARBHUIYA
R/O VICHINGCHA PT-II HAILAKANDI ASSAM PIN 788151
19: SALEH AHMED BARBHUIYA
S/O SAJJADUR RAHMAN BARBHUIYA
R/O GANGPAR DHUMKAR PT-III HAILAKNDI ASSAM PIN 788152
20: JAYNAL UDDIN CHOUDHURY
S/O JALAL UDDIN CHOUDHURY
R/O BOALIPAR PT-III HAILAKANDI ASSAM PIN 788155
21: AYAN BHATTACHARJEE
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R/O ALOICHERRA PT-IV
HAILAKANDI ASSAM PIN 788165.
22: SAMINA YEASMIN LASKAR
S/O SAMSIR UDDIN LASKAR
C/O NURUL ISLAM LASKAR BOALIPAR PT-II
HAILAKANDI ASSAM PIN 788155.
23: ABDUL KAIYUM LASKAR
R/O PALOICHERRA PUNJI PT-III HAILAKANDI ASSAM PIN 788162.
24: ABDUL AZIM BARBHUIYA
S/O MONIR ALI BARBHUIYA
R/O BORBAND PT-III HAILAKANDI ASSAM PIN 788155.
25: H.M FAKRUL ALAM LASKAR
S/O ABDUL WAHID LASKAR
R/O BASHBARI HAILAKANDI ASSAM PIN 788152.
26: JAKARIYA AHMED BARBHUIYA
S/O RAHIM UDDIN BARBHUIYA
R/O BARHALIKANDI PT-III HAILAKANDI ASSAM PIN 788151.
27: AFSAR HUSSAIN MAZUMDER
S/O NUR UDDIN MAZUMDER
R/O LAXMINAGAR PT.-II HAILAKANDI ASSAM PIN 788164.
28: JAYNAL HUSSAIN LASKAR
S/O SURMAN ALI LASKAR
R/O NISCHINTAPIUR HAILAKANDI ASSAM PIN 788164
29: MIZANUR RAHMAN CHOUDHURY
S/O LATE ABDUL KADIR CHOUDHURY
R/O UTTARJASNABAD PT-I HAILAKANDI ASSAM PIN 788163
30: DILWAR HUSSAIN CHOUDHURY
S/O ALIM UDDIN CHOUDHURY
R/O NORTH NARAINPUR PT-II HAILAKANDI ASSAM PIN 788801
31: TAJ UDDIN LASKAR
S/O LATE JAHIR UDDIN LASKAR
R/O SAYEDBIOND PT-I HAILAKANDI ASSAM PIN 788163
32: JUNU MIA LASKAR
S/O LATE ARZAD ALI LASKAR
R/O MAHAMMEDPUR PT-II HAILAKANDI ASSAM PIN 788163
33: ALI AHMED BARBHUIYA
S/O LT. NURUL RAHMAN BARBHUIYA
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R/O RANGPUR PT-III HAILAKANDI ASSAM PIN 788163.
34: JAHIR AHMED BARBHUIYA
S/O LATE NURUL RAHMAN BARBHUIYA
R/O RONGPUR PT.-III HAILAKANDI ASSAM PIN 788163.
35: JAHIRUL ISLAM CHOUDHURY
S/O BADAR UDDIN CHOUDHURY
R/O MAHAMMEDPUR PT-I HAILAKANDI ASSAM PIN 788163.
36: SALEHA BEGUM LASKAR
D/O ADUL KHALIQUE TAPADAR
R/O LALA ROAD WARD NO. IV HAILAKANDI ASSAM PIN 788151.
37: ANWARUL ISLAM LASKAR
S/O ABDUR RAHMAN LASKAR
R/O MALGAPUR PT-I HAILAKANDI ASSAM PIN 788150.
38: JAMIL HUSSIAN BARBHUIYA
S/O LATE SIFATH ALI BARBHUIYA
R/O MOHANPUR PT-I HAILAKANDI ASSAM PIN 788150.
39: BADRUL HOQUE LASKAR
S/O LUTFUR RAHMAN LASKAR
R/O ALGAPUR PT-V HAILAKANDI ASSAM PIN 788150.
40: SHAMIM AHMED CHOUDHRUY
S/O LATE MAHMUD ALI CHOUDHURY
R/O RONGPUR PT-IV HAILAKANDI ASSAM PIN 788163.
41: ABDUS SALAM BARBHUIYA
S/O ABDUL MATLIB BARBHUIYA
R/O ALGAPUR PT-IV HAILAKANDI ASSAM PIN 788150.
42: IQBAL MAHAMMED BARBHUIYA
S/O MUJIB UDDIN BARBHUIYA
R/O KAPNARPAR HAILAKANDI ASSAM PIN 788150.
43: APARNA CHOUDHURY
D/O ARUN CHOUDHURY
R/O W/ NO. XIII H. NO. 81 HAILAKANDI ASSAM PIN 788151.
44: PRITOM MISRA
S/O BIJIT KUMAR MISRA
R/O W/ NO. VI. KALIBARI ROAD HAILAKANDI ASSAM PIN 788151.
45: ARUP CHAKRABORTY
S/O ASHIT BARAN CHAKRABORTY
R/O PANCHGRAM HAILAKANDI ASSAM PIN 788802
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46: MONOWARA BEGUM LASKAR
S/O LATE SAWKAT ALI LASKAR
R/O NIAMOTHPUR HAILAKANDI ASSAM PIN 788163.
47: SUMITA KANOO
S/O PREM CHAND KANOO
R/O RANGABAK DIST. HAILAKANDI ASSAM PIN 788161.
48: ATUL KUMAR MANDAL
S/O LATE KHITISH MANDAL
R/O GARAJAN HAILAKANDI ASSAM PIN 782128.
49: RABEYA BEGAM LASKAR
D/O KAZI NIZAM UDDIN
R/O JOYKRISHNAPUR DIST. HAILAKANDI ASSAM PIN 788163.
50: HASON AHMED CHOUDHURY
S/O ABDUL HOQUE CHOUDHURY
R/O DHOLAI MOLAI PT-IV DIST. HAILAKANDI ASSAM PIN 788161.
51: REZWANA KHANOM MOZUMDER
D/O AMIR UDDIN MOZUMDER
C/O NASIR AHMED LASKAR R/O JOYKRISHNAPUR
HAILAKANDI ASSAM PIN 788163.
52: BURHANA BEGUM LASKAR
S/O ABDUL LATIF LASKAR
R/O MAHAMMEDPUR PT-II HAILAKANDI ASSAM PIN 788155
53: SAHANARA BEGUM BARBHUIYA
D/O KHALIL UDDIN BARBHUIYA
R/O BROJOPOUR HAILAKANDI ASSAM PIN 788155.
54: JAMIL AHMED LASKAR
S/O MOZIBUR RAHMAN LASKAR
R/O BARNAGAD HAILAKANDI ASSAM PIN 788150.
55: AFZAL HUSSAIN CHOUDHURY
S/O SAFIQUR RAHMAN CHOUDHURY
R/O TANTOO HAILAKANDI ASSAM PIN 788163.
56: SNIGDHA DAS ROY
W/O SUPRIYO ROY
R/O LAXMIBAZAR ROAD KARIMGANJ ASSAM PIN 788710.
57: ATAUR RAHMAN LASKAR
S/O ABDUL MUKTADIR LASKAR
R/O BHATISANGJURAI HAILAKANDI ASSAM PIN 78815
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58: NILUTFA SHABANA BEGOM BARBHUIYA
S/O NIZAM UDDIN BARBHUIYA
C/O LUTHFUR RAHMAN LASKAR R/O MAHAMMEDPUR PT-II
HAILAKANDI ASSAM PIN 78863.
59: ALTAF HUSSAIN LASKAR
S/O ABDUL SUKKUR LASKAR
R/O RATANPUR PT-I HAILAKANDI ASSAM PIN 78855.
60: AZAD HUSSAIN LASKAR
S//O ACHADDAR ALI LASKAR
R/O BERABAK PT-II CACHAR PIN 788115.
61: AL AMIN CHOUDHURY
S/O SIRAJ UDDIN CHOUDHURY
R/O SUDARI KARIMGANJ ASSAM PIN 788710.
62: ABDUL ROUF
S/O MUSLIM ALI
R/O JALAPUR KARIMGANJ ASSAM PIN 788806.
63: TANUJ CHAKRABORTY
S/O TARUN CHAKRABORTY
R/O NETAJI PALLY KARIMGANJ ASSAM PIN 788712.
64: SAMARJIT SINGHA
S/O SUSHIL CHANDRA SINGHA
R/O BURUNGA PT-II CACHAR ASSAM PIN 788815.
65: BILAL UDDIN
S/O ABDUL KARIM
R/O GHATUDHARAM KARIMGANJ ASSAM PIN 788806.
66: MD ABDUL HAMID
S/O HAZI ABDUS SHAID
R/O USHARANI KARIMGANJ ASSAM PIN 788720.
67: HUSSAIN AHMED BARBHUIYA
S/O SIRAJ UDDIN BARBHUIYA
R/O DAKSHIN KRISHNAPUR CACHAR ASSAM PIN 788013.
68: NURUL HASSAN LASKAR
S/O AHMED RASHID LASKAR
R/O BAROSHALI CACHAR ASSAM PIN 788119.
69: TH. LEINA SINGHA
D/O TH. BABASANA SINGHA
R/O SINGERBAND CACHAR ASSAM PIN 788126.
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70: BIJOYA SINGHA
D/O KUMAR SINGHA
R/O GOSSAIPUR PT-I CACHAR ASSAM PIN 788030.
71: DAIRUL ISLAM BARBHUIYA
S/O ABDUL AZIZ BARBHUIYA
R/O NISCHITPUR CACHAR ASSAM
72: DIPAK DAS
S/O DILIP DAS
R/O KALINAGAR PT-I HAILAKANDI ASSAM PIN 788801.
73: NAZ PARBIN LASKAR
D/O INAMUR RAHMAN LASKAR
R/O GHAGRAPAR PT-I CACHAR ASSAM PIN 788801.
74: DILWAR HUSSAIN LASKAR
S/O AZIR UDDIN LASKAR
R/O KAPNARPAR HAILAKANDI ASSAM PIN 788850.
75: RASHMA BEGOM LASKAR
D/O KALAMDAR ALI LASKAR
R/O BRAJAPUR PT-I HAILAKANDI ASSAM PIN 788155.
76: ABU TAYEB MD. IKRHMA LASKAR
S/O ABDUN NOOR LASKAR
R/O NARAINPUR PT-II HAILAKANDI ASSAM PIN 788801
77: SAJUL HAQUE CHOUDHURY
S/O JAMIL AHMED CHOUDHURY
R/O BAGPUR PT-III CACHAR ASSAM PIN 788101.
78: DILWAR HUSSIAN LASKAR
S/O SOBIR HUSSIAN LASKAR
R/O KATANALA N.C. HAILAKANDI ASSAM PIN 788151.
79: FAKRUL AMIN BARBHUIYA
S/O LIAQUATH ALI BARBHUIYA
R/O VICHINGCHA PT-II HAILAKANDI ASSAM PIN 788151.
80: PIU DAS MALO
S/O LATE PINTU CHANDRA DAS
R/O BONGAIGAON ASSAM PIN 783380.
81: NASIM AHMED BARBHUIYA
S/O MUSABBIR ALI BARBHUIYA
R/O KATIGORAH CACHAR ASSAM PIN 788805.
82: SAMSUL HOQUE LASKAR
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S/O HAZI LALU MIA LASKAR
R/O KACHDARAM PT-II CACHAR ASSAM PIN 788119.
83: SABUL ALOM BARBHUIYA
S/O KUTI MIA BARBHUIYA
R/O KACHDARAM PT-II CACHAR ASSAM PIN 788119.
84: MUFIDUL ISLAM LASKAR
S/O ABDUL MONIM LASKAR
R/O NEAIRGRAM PT-I CACHAR ASSAM PIN 788013.
85: RAIHAN AHMED BARBHUIYA
S/O SAHAB UDDIN BARBHUIYA
R/O NUTAN RAMNAGAR PT-IV CACHAR ASSAM PIN 788119.
86: NASIM UDDIN
S/O IMAD UDDIN
R/O KATIGORAH CACHAR ASSAM PIN 788805.
87: NUWAIRAH BEGUM LASKAR
W/O KAMAL HASSAN LASKAR
R/O ALGAPUR PT-II CACHAR ASSAM PIN 788101.
88: Y. SINTHOBI DEVI
D/O LATE Y. KAMESWAR SINGHA
R/O NAYAGRAN CACHAR ASSAM PIN 788106.
89: MONOJ KARMAKAR
S/O SWAPAN KARMAKAR
R/O CACHAR ASSAM PIN 788030.
90: MUKTAR HUSSIAN
S/O ISAQUE ALI
R/O MAHAKAL KARIMGANJ ASSAM PIN 788806.
91: LIPIKA DAS
D/O DILIP DAS
KARIMGANJ RAILWAY COLONY KARIMGANJ ASSAM PIN 788710.
92: RINKU KUMAR DAS
S/O RINU KUMAR DAS
R/O SIBNARAINPUR CACHAR ASSAM PIN 788804.
93: SHAMIMA AKTAR BARBHUIYA
D/O SIRAJUL HOQUE BARBHUIYA
R/O HARINAGAR PT-II CACHAR ASSAM PIN 788805.
94: JAHANARA BEGAM
S/O ABDUL KARIM
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R/O JALALNOGER KARIMGANJ ASSAM PIN 788726.
95: TAJ UDDIN
S/O TOMIZ UDDIN
R/O KEUTKUNA KARIMGANJ ASSAM PIN 788719.
96: ARUP CHARKABORTY
S/O ARUN CHAKRABORTY
R/O INATHPUR (NETAJI LANE) KARIMGANJ ASSAM PIN 788712.
97: SYEDA AMINA ISLAM
D/O LATE FOKHRUL ISLAM
R/O BARENGA CACHAR ASSAM PIN 788005.
98: SAMPA DAS
D/O JITENDRA DAS
R/O BAHADURPUR CACHAR ASSAM PIN 788002.
99: MD. SAMSUL HAQUE
S/O HAZI MOINUL HAQUE
R/O SAPORMONIA CACHAR ASSAM PIN 788103.
100: WAHIDA SULTANA KHAN
D/O OYES AHMED KHAN
R/O FARAMPASHA KARIMGANJ ASSAM PIN 788722.
101: MOHBUB AHMED
S/O LATE ALTAF HUSSAIN
R/O MEDAL PT-II KARIMGANJ ASSAM PIN 788711
102: MAMLIN LASKAR
S/O MAINUL HAQUE LASKAR
R/O GOSSAIPUR PT-II CACHAR ASSAM PIN 788030.
103: ZULFIQURE AHMED MAZUMDER
S/O JAMIL UDDIN MAZUMDER
R/O UTTARMOHANPUR CACHAR ASSAM PIN 788119.
104: RAFIJUL KHAN
S/O IKBAL KHAN
R/O HAJIPUR KARIMGANJ ASSAM PIN 788806.
105: SHAMIM AHMED
S/O KUTUB UDDIN
R/O KANAKPUR KARIMGANJ ASSAM PIN 788722.
106: MASHUK AHMED MAZUMDER
S/O LATE MAKRAM ALI MAZUMDER
R/O HAILAKANDI W/ NO. IV HAILAKANDI ASSAM PIN 788151.
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107: SWADHA BEGUM CHOUDHURY
D/O ALA UDDIN CHOUDHURY
R/O SAYEDBOND PT-I HAILAKANDI ASSAM PIN 788150.
108: BIPUL BARMAN
S/O PRAFULLA BARMAN
R/O NICHILAMAR KAMRUP(R) ASSAM PIN 781136.
109: AVIJIT MISRA
S/O LATE ASIT MISRA
R/O LALPANI HAILAKANDI ASSAM PIN 788165.
110: ARPITA MISRA
D/O LATE ASIT MISRA
R/O LALPANI HAILAKANDI ASSAM PIN 788165.
111: ABDUL HYEE KHADEM
S/O HUSSAIN AHMED KHADEM
R/O GONIRGRAM CACHAR ASSAM PIN 788025.
112: MAZMUL ISLAM MAZUMDER
D/O MAHMADUR RAHMAN MAZUMDER
R/O GONIRGRAM PT-I CACHAR ASSAM PIN 788025.
113: ASHANUL HOQUE MAZUMDER
S/O FARIDUR RAHMAN MAZUMDER
R/O ALGAPUR PT-II CACHAR ASSAM PIN 788101.
114: SIMA RANI DAS
D/O AMIT DAS
R/O ATHAALIKANDI CACHAR ASSAM PIN 788003
VERSUS
1:THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE
COMMISSIONER AND SECRETARY, TO THE GOVERNMENT OF ASSAM,
EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI 781006
2:THE MISSION DIRECTOR
SARBA SIKSHA ABHIYAN KAHILIPARA GUWAHATI 781019.
3:THE DIRECTOR
ELEMENTARY EDUCATION KAHILIPARA GUWAHATI 781019
For the Appellants : Mr. K.N. Choudhury, Senior Advocate.
Mr. R.M. Deka, Advocate.
For the Respondents : Mr. D. Saikia, Senior Standing Counsel, Government of Assam.
Mr. S. Bora, Advocate.
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-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. AJAI LAMBA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 24-06-2020 (Ajai Lamba, C.J.) The Court proceedings have been conducted through Video-Conference.
2. We have heard Mr. K.N. Choudhury, learned senior counsel for the writ appellants/writ petitioners and Mr. D. Saikia, learned senior standing counsel, Government of Assam, appearing for the respondents.
3. This writ appeal/intra Court appeal has been filed by as many as 114 appellants/writ petitioners directed against order dated 22.01.2020 rendered by learned Single Judge in writ jurisdiction while dealing with WP(C) No.3807/2019 (Tarique Anwar Laskar & 142 Ors. -Vs- The State of Assam & 2 Ors.).
4. Short contention of learned counsel for the writ appellants is that specific issue was raised on behalf of the petitioners in Paragraphs 4 to 10 of the writ petition to the effect that 7042 posts of Lower Primary Level, Upper Primary Level, Social Science and Upper Primary Maths and Science Teachers had been advertised. However, beyond the number of posts advertised, 11319 candidates were appointed against the increased vacancies. It has been specifically pleaded in the writ petition that appointment of 11319 teachers has been without any advertisement, therefore, the writ appellants/writ petitioners had been denied the opportunity of competing for the posts in public service, which is against the constitutional scheme and particularly against service jurisprudence.
5. It has been argued by Mr. K.N. Choudhury, learned senior counsel for the writ appellants/writ petitioners that it was specifically made clear before the Writ Court that the writ appellants/writ petitioners are not challenging the recruitment of 7042 candidates appointed under the recruitment process initiated vide advertisement dated 30.06.2017. However, challenge is to the entry of 11319 candidates without advertisement by way of backdoor entry.
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6. It has been pointed out that by virtue of the impugned order, the issue as raised has not been dealt with, rather the writ petition has been disposed of on the premise that 15000 more vacancies are being advertised and the petitioners would be at liberty to apply against those vacancies.
7. Contention of Mr. Choudhury is that once a plea is made and in regard to the plea because a dispute has been raised by the respondents by virtue of the written statement, it was required to be adjudicated and decided. The fresh vacancies advertised were not at issue before the Writ Court and, therefore, the writ petition could not have been disposed of in view of the recruitment process initiated subsequently.
8. Mr. D. Saikia, learned standing counsel, Government of Assam has drawn attention of the Court towards Paragraphs 3, 4 & 5 of the affidavit-in-opposition to say that the factual position has been clearly explained. The writ appellants have no case to succeed.
9. Having considered the facts and circumstances, and the pleadings towards which our attention has been drawn, we deem it relevant to extract Paragraphs 4 to 10 from the writ petition filed on behalf of the writ appellants/writ petitioners.
Paragraphs 4 to 10 of the writ petition reads as under:-
"4. That considering the fixed numbers district-wise vacancy many of the petitioners did not participate in the recruitment process as the chances of their selection were bleak considering the huge numbers of applicants who were participated on an all Assam basis. On the same premise, those petitioners who had participated in the recruitment process responding to the Advertisement dated 30.06.2017, did not carry out the mandatory verification of documents as required. It is relevant to state that there is no bar for a candidate to participate in any of the district, the only restriction being, the choice of District had to be singular.
5. That the result of the said recruitment process in context was declared on 01/09/2017 and the official website of SSA, this information was issued by the respondent authorities by Notification No. SSA/TT/Engagement of A T -
Page No.# 13/17 2017/1095/2017/2966 dated 01/09/2017.
A copy of the Notification dated 01/09/2017 is annexed herewith and the same is marked as ANNEXURE-B.
6. That by a Notification dated 06/09/2017 it was indicated, in substance, that 11,319 numbers of TET qualified candidates had been notified to be engaged as Assistant Teachers in respect of the advertisement dated 30/06/2017. As the petitioners were contemplating to participate for the post in the Lower Primary Level, the petitioners were surprised to notice that as against 7042 nos. of posts advertised in all for Lower Primary Level, Upper Primary - Social Science, and Upper Primary - Maths and Science, 11,319 candidates had been appointed against 'increased Vacancy'. This indicates that appointments to 11,319 nos. of posts have been made without any advertisement.
A copy of the Notification dated 06/09/2017 is annexed herewith and the same is marked as ANNEXURE-C
7. That the petitioners could arrange to collect two appointment orders dated 08/09/2017 and 08/09/2017 respectively. While one such order of appointment refers to the advertisement dated 30/06/2017 and indicates appointment on contractual basis in Pay-Band-2 Rupees 14000-49000/- and Grade Pay of Rs. 6200/- including other allowances as admissible to the State Government Employees, the other order of appointment indicated the Notification dated 06/09/2017 and also indicated such required for the period of 11 months at a fixed pay of Rupees 20000/- per month. The said persons so recruited initially for 11 a period of months with fixed monthly pay are still continuing in service and it is apparent that in the garb of a recruitment for 11 months, 11,319 candidates have been appointed as like regular service selectees.
A copy each of the orders dated 08/09/2017 and 08/09/2017 are annexed herewith and the same are marked as ANNEXURES-D and E, respectively.
8. That the recruitment of 11,319 nos of candidates for a period of 11 months in garb of such recruitment being in context with the advertisement dated Page No.# 14/17 30/06/2017 is illegal in as much as such recruitment of 11,319 nos. of candidates is on the different plank all together and not connected with advertisement dated 30/06/2017. Assuming but not admitting that such recruitment of 11,319 candidates is against 'increased vacancy', the respondent authorities are not enjoined under the law to fill up such huge nos of vacancies without notifying the same by way of separate advertisement so as to enable fair public participation.
9. That the action of the respondent authorities in facilitating back door entry of 11,319 candidates and that too as a different pay structure and length of service goes to show illegalities which have unarguably prevailed in recruiting 11,319 candidates depriving the chance of participation of the petitioners. Aggrieved by such illegal, arbitrary and discriminatory action of the respondent authorities which has affected the Fundamental Rights and Legal Rights of the petitioners, the petitioners are constrained to file the present Writ Petition.
10. That the petitioners are not challenging the recruitment of 7042 nos of candidates so appointed in context with the recruitment process initiated vide Advertisement dated 30/06/2017, but, are assailing the back door entry of 11,319 nos of candidates without any advertisement. As the Petitioners would have and are contemplating to offer their candidature(s) for the post of Assistant Teacher at Lower Primary Level, the Petitioners are restricting their challenge to 9731 candidates so appointed beyond 5854 Candidates at Lower Primary Level. As the numbers of such candidates in huge and the petitioners are in financial constraint, the petitioners pray that the Hon'ble Court be pleased to allow the petitioners to serve notice upon such 9731 candidates by way of paper publication -one English Daily and one Vernacular Daily having wide circulation in Assam, if need be, enabling them to contest the proceeding."
10. So far as the case set up on behalf of the State is concerned, we would like to extract Paragraphs 3, 4 & 5 of the affidavit-in-opposition, which is done here below:-
"3. That with regard to paragraph 2, 3, 11 and 12 of the writ petition the deponent begs to state that the Asom Sarba Siksha Abhiyan Mission had published advertisement for 7042 number of posts of contractual Assistant Teacher vide No.SSA/TT/Engagement of Asst. Teacher/1095/ 2017/1218 dated Page No.# 15/17 30-06-2017. In the advertisement it was clearly mentioned that the number of vacancy may increase.
In the meantime, a communication was received from Government of India vide Letter No.D.O. No.17-2/2017-EE.17, dated 03-08-2017 regarding last chance to acquire the requisite minimum qualification by elementary level teachers within 31st March, 2019. In the letter, broad strategy was mentioned to complete the training of untrained teachers by 31st March, 2019 as a last chance.
As 31st March, 2019 was the last date of acquiring professional qualification (2 year D.El.Ed/B.Ed etc.) by the elementary level untrained teachers, the matter was considered with utmost seriousness and considering the requirement of teacher in elementary level schools in the State, a decision was taken to fill up the 'State Pool of teachers' from the remaining eligible candidates in order of merit of the above mentioned engagement process on the basis of the provision mentioned in the advertisement dated 30-06-2017 i.e. 'number of vacancy may increase'.
This was done keeping in view the emergent situation that as the National Institute of Open Schooling (NIOS) registration for admission into the 2 years D.El.Ed was supposed to be closed on 15-09-2017. If the State Pool of teachers was to be filled up by fresh advertisement, it would not be possible to enrol the untrained Assistant Teachers of State Pool in NIOS within 15-09-2017. Considering the same, these teachers were engaged against State Pool on the basis of provision mentioned in the advertisement dated 30-06-2017 i.e. 'number of vacancy may increase'.
True copy of advertisement dated 30-06-2017 is annexed herewith and marked as Annexure-1.
True copy of Letter vide D.O. No.17-2/2017-EE.17 dated 03- 08-2017 is annexed herewith and marked as Annexure-2.
4. That with regard to paragraph 4 and 5 of the writ petition the deponent respectfully states that the entire process of engagement of 11319 Assistant Teachers under the scheme of 'Strengthening Elementary Education of Assam' was carried out against the advertisement No.SSA/TT/ Engagement of Asstt.
Page No.# 16/17 Teacher/1095/2017/1218, dated 30-06-2017 under the provision i.e. 'number of vacancy may increase'. The 11319 Assistant Teachers under State Pool were engaged so that these teachers can get themselves trained by enrolling themselves in the NIOS for 2 years D.El.Ed. programme by 15-09-2017.
5. That with regard to paragraph 6, 8, 9, 10 of the writ petition the deponent begs to state that a total numbers of 24345 candidates had submitted their online applications in response of the advertisement No.SSA/TT/Engagement of Asstt. Teacher/1095/2017/1218, dated 30-06-2017.
The Department of Elementary Education or Sarba Siksha Abhiyan, Assam is in no way responsible for non submission of online application by the petitioners of this case. As 24345 candidates had submitted online applications, the petitioner in this case could have also submitted their online applications against the said advertisement Non submission of online application by the petitioner is not the fault of Department of Elementary or Sarba Siksha Abhiyan, Assam, in as much as, no bar was imposed on the instant petitioners to participate in the process of appointment/engagement pursuant to the advertisement dated 30-06-2017."
11. Mr. Saikia, learned counsel for the State has very fairly stated, as a responsible officer of the Court, that indeed issue in facts, and in law was raised by virtue of Paragraphs 4 to 10 of the writ petition, extracted above, read in conjunction with Paragraphs 3, 4 & 5 of the affidavit-in-opposition, however, in view of subsequent developments was not adjudicated and decided. Mr. Saikia states that he would have no objection to remand of the matter for consideration of the issues raised in the writ petition by the learned Single Judge.
12. Considering peculiar facts and circumstances noted above and the stand of the learned counsels, we hereby dispose of this writ petition while remanding the matter to the learned Single Judge for fresh adjudication. Consequently the impugned order dated 22.01.2020 is set aside.
Needless to say that this Court is not recording any opinion on facts, or in law on any of the issues raised by the learned counsels. We have referred to the pleadings Page No.# 17/17 from the writ petition and the counter affidavit only to highlight the contention of learned counsel for the writ appellants/writ petitioners, as noted above.
JUDGE CHIEF JUSTICE Comparing Assistant