Gauhati High Court
Miss Jyoti Baruah & 8 Ors vs The State Of Assam And Ors on 7 August, 2014
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP (C) NO. 6071 of 2010
1. Miss Jyoti Baruah, D/o. Sri P. Baruah, Resident of
Village- Govindapur, P.O. Govindapur, District-
Lakhimpur, Assam and 8 others.
...........Petitioner
-Versus-
1. The State of Assam, represented by the Commissioner
and Secretary to the Govt. of Assam, Education
Department, Dispur, Guwahati-6.
2. The Commissioner and Secretary, Govt. of Assam,
Department of Finance, Dispur, Guwahati-6.
3. The Director of Elementary Education, Assam,
Kahilipara, Guwahati-19.
4. The District Elementary Education Officer, Lakhimpur,
P.O.- Lakhimpur, District - North Lakhimpur, Assam.
5. The Treasury Officer, Dhakuakhana Sub-Treasury,
Dhakuakhana, District- Lakhimpur, Assam.
..........Respondents
For the petitioners : Mr. A. J. Atia. Adv.
For the Respondents : Mr. P.N. Goswami, SC Education.
BCEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
Date of hearing & Judgement: 07/08/2014
WP(C) 6071 of 2010-oral dt. 7/8/14 Page 1 of 9
JUDGEMENT AND ORDER (ORAL)
1. The petitioners numbering 9 are aggrieved by the Annexure-XXI order dated 02/11/2010 of the Director of Elementary Education, Assam, by which their services as MV School teacher have been dispensed with on the ground of being not with the approval of the State Level Empowered Committee and without any valid sanctioned posts. As per the said impugned order, the petitioners however, shall be entitled to receive salaries for the period they had worked only.
2. According to the petitioners, they had responded to the employment notice dated 27/12/1996 for the posts and were called for selection. More than four years thereafter a select list, said to be of 05/03/2001, was prepared. As per the own statement of the petitioners in paragraph 2 of the writ petition, the said select list dated 05/03/2001 was forwarded to the Government for approval. However, nothing has been stated as to whether the select list was approved for not but they were appointed by orders dated 12/03/2001 and 17/03/2001 issued by the District Elementary Education Officer, Lakhimpur. In the same paragraph, the petitioners have referred to the said select list dated 05/03/2001 containing 81 names with the undertaking to produce the same at the time of hearing.
3. From the materials on record it appears that since the petitioners had been appointed, they were not paid their salaries and on various occasions, they along with some others had approached this Court. First on record is the order dated 12/11/2003 passed in a batch of writ petition first one being WP(C) No. 4433/2001. The writ petition was disposed of directing the respondents to get the matter examined through the appropriate committee and then to pass appropriate order in accordance with law. As the order would reflect, it was the stand of the respondents WP(C) 6071 of 2010-oral dt. 7/8/14 Page 2 of 9 represented by the Principal Secretary to the Govt. of Assam in the Education Department that the petitioners were appointed during the period when ban on appointment was in operation and also without obtaining clearance from the State Level Empowered Committee.
4. After the aforesaid order, certain correspondences had been made and thereafter one of the petitioners had approached this Court by filing WP(C) No. 8720/2003 which was disposed off on 30/11/2004 along with some other writ petitions being WP(C) Nos. 8726/2003, 8727/2003, 8728/2003 and 8729/2003. Recording the submission made by the learned Standing Counsel, Education Department that there was doubt relating to very appointment of the petitioners and this no direction could be issued to regularize their services, the writ petition was disposed of providing that the respondents would cause enquiry relating to the alleged illegal appointment of the petitioners and that if the enquiry would reveal that they were illegally appointed, they would be entitled to proceed with the matter in accordance with law.
5. Certain more correspondences followed thereafter and it is alleged that the services of some of the teachers were regularized in 2005. Another writ petition being WP(C) No. 8577/2003 was disposed of on 10/05/2005 requiring the departmental authorities to examine the matter as to whether the petitioners' selection was in accordance with the relevant policy of the Government and the provisions of law. It was also recorded that if the selection was conducted properly, the services of the selected candidates who had been appointed should be regularized against existing vacancies. The petitioners have placed on record the Annexure-XIV order dated 21/10/2005, by which the services of four teachers, namely, Shri Ranjan Baruah, Shri Diganta Gogoi, Miss Suprava Borah and Smt. Anju Hazarika had been regularized.
WP(C) 6071 of 2010-oral dt. 7/8/14 Page 3 of 9
6. The petitioners had filed Contempt Case No. 180/2007 alleging violation of the orders passed by this Court from time to time. The contempt petition was disposed of by order dated 19/11/2008 with the observation that the petitioners therein would be entitled to release of salary only in the event they were found to be entitled to the same and not otherwise. Eventually by order dated 05/04/2010 passed by this Court in WP(C) No. 1777/2010, the respondents were granted liberty to deal with the matter including termination of service in accordance with law. Pursuant thereto, the petitioners were issued with the eventual notices to show cause as to why their services should not be terminated on the following grounds :-
a. Their services were adjusted without approval of the higher authority.
b. They were appointed without any selection by the Sub-divisional Level Advisory Board of Lakhimpur.
c. They were appointed without following the procedure laid down in the Recruitment Rules, namely, The Assam Elementary Education (Provincialisation) Rules, 1977. d. They were appointed in violation of the Rules and without obtaining the approval of the State Level Empowered Committee and were not appointed against any valid sanctioned post.
7. In response to the said show cause notices the petitioners filed their individual replies narrating the aforesaid facts and also stating that pursuant to the advertisement issued in 1996 they had appeared in the selection and the select list was prepared in which there were 81 names of successful candidates including the petitioners. It was stated that since they were appointed pursuant to a valid selection, their services cannot be dispensed with in the manner and method in it was were sought to be done. WP(C) 6071 of 2010-oral dt. 7/8/14 Page 4 of 9
8. The respondents have filed their counter affidavit in which while admitting that there was an advertisement in December, 1996 for filling up of 7500 posts throughout the State. It has been denied that there was any valid selection. Referring to the ban that was imposed on 06/12/1999 which was eventually lifted on 25/03/2001, it is the stand of the respondents that because of the said ban there could not have been any selection and appointment. The respondents have also referred to the then existing State Level Empowered Committee (SLEC) and the requirement to get the approval of the same towards making any selection and appointment. It is the stand of the respondents that since there was no lifting of ban that was imposed in 1999, there was no occasion for the Sub-divisional Selection Board to conduct any selection and then to publish any select list. It is also the stand of the respondents that the District Elementary Education Officer, Lakhimpur without any authority and permission from the higher authority including the SLEC appointed the petitioners in March, 2001 during the ban period.
9. It is the further stand of the respondents that there was only approval for appointment against the particular scheme, namely, Operation Blackboard (OBB) for which purpose only the SLEC/Finance Department of the State had lifted the ban on appointed on 08/03/2001. Such lifting of ban being confined to the said scheme only, the authorities in the Education Department could not have made the appointment during the ban period. In paragraph 26 of the affidavit, it has been stated thus :-
"26. That the petitioners were found that they were appointed by the then District Elementary Education Officer, Lakhimpur without any authority, without any prior permission from higher authority and SLEC/Finance Department, appointed during the ban period and without vacant posts which were found to be in excess. Accordingly, the services of the Petitioners have been terminated by WP(C) 6071 of 2010-oral dt. 7/8/14 Page 5 of 9 order dated 02-11-2010 after following the due procedure of law."
10. In the reply affidavit filed by the petitioners, the aforesaid stand of the respondents has been denied and the statements made in the writ petition have been reiterated. Along with the reply affidavit, the petitioners have also enclosed their appointment orders dated 12/03/2001 and 17/03/2001 which incidentally prior in point of time then lifting of ban on 25/03/2001. As noticed above, according to the petitioners, the select list was prepared on 05/03/2001 which is also during the ban period.
11. I have heard Mr. A.J. Atia, learned counsel for the petitioners. I have also heard Mr. P.N. Goswami, learned Standing Counsel, Education Department. I have also considered the entire materials on record including the records/documents produced by both the parties. During the course of hearing, Mr. Atia, learned counsel for the petitioners has produced the purported select list (photocopy) about which there is mention in paragraph 2 of the writ petition. On perusal of the photocopy of the select list, certain names are found from Sl. No. 1 to 65. Thereafter another list is enclosed along with the said list containing the names of 17 persons. This is referred to as a composite select list. It appears that under the head Sub-division Dhakuakhana is mentioned. However, it is not discernible as to who were the members of the Selection Committee, in absence of any indication thereof. Only one signature, that too, not legible is discernible in each one of the select list and in the last page there is one signature with date 05/03/2001. If this is the select list, then certainly, the same was prepared during the operation of ban period. Moreover, there is nothing to indicate that the same was approved by the competent authority.
12. In the writ petition, the petitioners have not indicated as when the selection was held and as to whether they had been invited to appear in the WP(C) 6071 of 2010-oral dt. 7/8/14 Page 6 of 9 interview through any call letters or not. No date of interview has been indicated. Only statement made is that the advertisement was issued in 1996 and thereafter the select list was prepared in 2001. However, Mr. Atia, learned counsel for the petitioners submits that the selection/interview was conducted in 1997. If that be so, it is not understood as to why it took long four years to prepare the select list.
13. Mr. P.N. Goswami, learned Standing Counsel, Education Department has produced the copy of the judgement dated 22/11/2012 of the Division Bench passed in WA No. 55/2012 in which under similar circumstances, the dispensation of services of such appointees has been upheld. That was also a case relating to appointment of teachers in 2001. However, subsequently their services were dispensed with on the ground of having been appointed illegally without any valid selection process. In para 7 of the judgement, it has been observed thus :-
"[7] Public employments whose expenses are met from the public exchequer must not only conform to the recruitment rules or the rules holding the field but also to the mandate of Articles 14 and 16 of the Constitution which abhor any element of malpractice or fraud. The Courts can not countenance any serious allegations of malpractice or fraud practiced during the recruitment process, which are anathema to the spirit of Articles 14 and 16 of the Constitution which deprive fair and equal opportunity to the eligible and meritorious candidates.
In view of the above disputed facts relating to
existence of vacancies and serious allegations of
malpractice said to have been committed by the
authorities in the matter of appointment of 252 candidates, this Court is of the view that the direction issued by the learned Single Judge on 07.6.2007 does not warrant any interference. Accordingly, these writ appeals are dismissed."
WP(C) 6071 of 2010-oral dt. 7/8/14 Page 7 of 9
14. As in the instant case, the case was also in respect of appointment made during the ban period. However, the selection Board inspite of the ban on appointment to regular vacancies had prepared the select list of 215 candidates in Lower Primary School against regular vacancies in anticipation that the Government would lift the ban very soon. There is no dispute that there was ban on appointment during the relevant period and that no approval of the SLEC was obtained before making the purported selection and appointment. Coupled with this and as indicated in the individual show cause notices, the services of some of the teachers had been adjusted without approval of the higher authority and the appointments were made de hors the Recruitment Rules. The grounds on which the show cause notices had been issued have been indicated above.
15. In the appointment orders annexed to the reply affidavit filed by the petitioners, which are dated 12/03/2001 and 17/03/2001, although the purported select list is referred to, but in some of the appointment orders, no date of the same is indicated. The individual names of the petitioners are only indicated in the appointment orders without their address etc. There is also no indication about their selection by the Sub-divisional Level Advisory Board, although there is reference to the undated select list of the Advisory Board.
16. As regards the plea of the petitioners for regularization of their services in reference to some others, suffice is to say that the petitioners will have to plead their own case on their own materials and merits and cannot rely upon the case of others towards converting the legal/irregular appointment to that of regular appointment. Needless to say that one illegality cannot be allowed to be perpetuated by another illegality and if that is allowed, the same will amount to negative equality. WP(C) 6071 of 2010-oral dt. 7/8/14 Page 8 of 9
17. In view of the above, I am not inclined to interfere wth the impugned orders and accordingly the writ petition is dismissed. However, the petitioners will be entitled to receive their salary for the period they had rendered their services and as indicated in the impugned orders and also in the counter affidavit. As regards the other such appointees, it will always be open for the respondents to take action against them, if so advised and in accordance with law.
18. Writ petition is dismissed, without however, any order as to costs.
JUDGE Sukhamay WP(C) 6071 of 2010-oral dt. 7/8/14 Page 9 of 9