Gauhati High Court
Nazifa Sahani Barbhuiya vs The State Of Assam And 4 Ors on 8 September, 2022
Page No.# 1/10
GAHC010194672019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6038/2019
NAZIFA SAHANI BARBHUIYA
D/O- SAMSUL HAQUE BARBHUIYA, R/O- HAILAKANDI TOWN WARD NO
12, ABDUL GANI LANE, P.S. AND DIST- HAILAKANDI (ASSAM)
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(SECONDARY) DEPTT., DISPUR, GHY-6
2:THE DIRECTOR
EDUCATION (SECONDARY) DEPTT.
ASSAM
KAHILIPARA
GHY-19
3:THE INSPECTOR OF SCHOOLS
CACHAR
P.O.SILCHAR
DIST- CACHAR
ASSAM
PIN- 788001
4:THE GOVERNING BODY
ADHARCHAND HIGHER SECONDARY SCHOOL
SILCHAR
CACHAR
REP. BY ITS PRESIDENT
P.O. SILCHAR
DIST- CACHAR
ASSAM
PIN- 788001
Page No.# 2/10
5:THE PRINCIPAL CUM SECRETARY
ADHARCHAND HIGHER SECONDARY SCHOOL
SILCHAR
CACHAR
P.O. SILCHAR
DIST- CACHAR
ASSAM
PIN- 78800
Advocate for the Petitioner : MR. A H M R CHOUDHURY
Advocate for the Respondent : SC, SEC. EDU.
BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY Date of Hearing :22.8.2022 Date of Judgement : 08.9.2022 JUDGMENT & ORDER (CAV) Heard Mr. N. J. Dutta, learned counsel for the petitioner. Also heard Mr. R. Mazumdar, learned Standing Counsel, Secondary Education Department, Assam.
2. By way of present application the petitioner has basically assailed the order dated 20.2.2019 passed by the respondent No.2, Director, Secondary Education declining to grant approval on the recommendation of the Governing Body of Adharchand Higher Secondary School, Cachar whereby the name of the petitioner was recommended for appointment against the post of PG Teacher in Botany. The background facts of the present case are as under:
i) The Principal of Adharchand Higher Secondary School issued an advertisement dated 28.3.2018 inviting applications for appointment of one post each of Post Graduate Teacher in the subjects of English, Mathematics , Zoology, Botany and Chemistry from eligible candidate.
Page No.# 3/10
ii) The petitioner being an eligible candidate made her application against the post of Botany. The petitioner was called for viva-voce test, which was held on 04.04.2018. Accordingly, the petitioner appeared in the same.
(iii) Subsequent to such process of selection, the petitioner was selected for the post inasmuch as the petitioner was the only candidate for the post of Botany. The Selection Committee recommended the name of the petitioner for selection and the Managing Committee of the School recommended the same to the Respondent No.2 for according approval to the selection.
(iv) While the matter was pending before the Director, neither any approval nor any appointment order was issued, the petitioner preferred writ petition assailing such inaction on the post of the Director which was registered as WP(C) No. 6721/2019. This Court at the stage of motion stage itself, by order dtd. 4.2.2019, passed in the aforesaid WP(C) 672/2019 directed the learned Standing Counsel for Secondary Education to have necessary instruction as to the status of the approval which was pending before the Director of Secondary Education Assam. (v.) Subsequently during the proceeding of the aforesaid writ petition, the petitioner came to know that the Director respondent No. 2 had passed the impugned order dated 20.2.2019, declining to accord approval on the ground that as per roaster point of the school prepared by the Principal of the school, the vacant post of Post Graduate Teacher in Botany is earmarked for scheduled caste category candidates.
3. Mr. N. J. Dutta, learned counsel for the petitioner assailing the aforesaid decision contends that in the advertisement dtd.28.3.2018, no post was Page No.# 4/10 earmarked for any reserved category candidates and the decision of the respondent Director is nothing but an afterthought and the said Director cannot be permitted to take a different stand, whereas the Governing Body itself, while issuing the advertisement has not earmarked any post for scheduled caste candidates.
4. Mr. Dutta, learned counsel for the petitioner further argues that when the selection is for a single post, there cannot be any reservation . In support of such contention, Mr. Dutta relies on the decision of Hon'ble Apex Court in Post Graduate Institute of Medical Education and Research, Chandigarh vs. Faculty Association and others reported in (1998) 4 SCC 1 .
5. Per Contra Mr. R. Mazumdar learned Standing Counsel submits that the post was a single post, however, in view of provision of Rule 3 A of the Assam Secondary Education (Provincialised) Service Rules,2003, the Post Graduate Teacher and Headmaster/Superintendent are encadred as Class-II Senior. Since the vacancy belongs to the cadre of Post Graduate teacher advertising it as a single post, the same cannot be treated as single post for the purpose of reservation as the other PG teachers are also included in the cadre.
6. Mr. Mazumdar further contends that the Assam Scheduled Casts and Scheduled Tribes (Reservation of Vacancies in service and post) Act 1978 mandates for maintenance of 100 point roaster for the purpose of selection and appointment and accordingly the school has maintained such roaster and as per the said roaster position, the post of Botany falls under the reserved category meant for scheduled caste candidates. The learned counsel also relies on the roaster prepared by the school authorities.
7. Countering the arguments of Mr. Mazumdar learned Standing Counsel, Mr.N. J. Dutta, learned counsel for the petitioner contends that cadre, post and Page No.# 5/10 service cannot be equated with each other. He further contends that to apply the Rule of reservation within a cadre, there has to be plurality of posts. Since in the present case in hand there cannot be inter changeable between the post of Chemistry, English and Zoology, each single post in particular discipline has to be treated as a single post for the purpose of reservation. In support of such contention Mr. Dutta relies on the decision of Hon'ble Apex Court in the case of State Of Karnataka and others Vs. K. Govindappa and another reported in (2009) 1 SCC 1.
8. Relying on the page 38 of the writ petition which is a part of an affidavit filed by the Principal cum Secretary of the School in WP(C) 672/2019, Mr. Dutta submits that the format-I, which was submitted before issuance of the advertisement, it was clearly reflected that there was no backlog position and for the post in question was placed at Serial No.35, which has been declared to be single post. Therefore Mr. Dutta submits that from the aforesaid documents, which were issued prior to issuance of advertisement clearly demonstrate that the post is single post and for that reason, in the advertisement, it was not earmarked for any reserved category candidates. Accordingly, Mr. Dutta submits that the decision of Director is liable to be set aside and quashed and direction should be issued to the Director to pass appropriate order on the recommendation of the Governing Body selecting the petitioner pursuant to the selection process initiated vide advertisement dated 28.8.2018.
9. I have given anxious consideration to the arguments advanced. Perused the pleadings as well as documents annexed thereto. From the material available on records the following undisputed facts emerges:
A. Prior to issuance of the advertisement, as per laid down procedure Page No.# 6/10 and as per format I, for Finance SIU approval, it is the mandatory exercise to have the detail of the total and existing post lying vacant for direct entry, backlog vacancies and backlog positions, duties and functions and responsibilities of the course, whether the recruitment or filling up of such posts are justified and essential or redundant etc. Such procedure is laid down as per the format prepared by Department of Finance SIU. B. Subsequent to collection of such data the advertisement in question was issued, selection was held and the petitioner was selected. C. Before issuance of the advertisement it was intimated that the filling up of the vacancy is justified and that post is single post and that there are no backlogs.
10. The Hon'ble Apex Court in an exactly similar situation in K. Govindappa and another (supra) laid down the following ratio at para 22 of the said judgment which is quoted below:
"While there can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter changeability of posts in the different disciplines, each single posts in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as Page No.# 7/10 envisated in Article 16(1) of the Constitution."
11. The said judgment was passed dealing with the judgment of High Court of Karnataka. The High Court of Karnataka in the aforesaid judgment framed the following two issues, which is reflected and quoted at paragraph 6 of the K. Govingaappa (supra) and is reproduced hereinbelow:
"6.The matter was taken up to the Division Bench of the High Court by the State of Karnataka and its officers, who are also the appellants in these proceedings. While considering the matter, the Division Bench posed the following two questions which it considered relevant for the purpose of deciding the appeal, namely:
"(i) Whether the post of Lecturer in History to which the writ petitioner was appointed was a single post ?
(ii) If the said post was a single post whether the fourth respondent Management was bound to reserve the post for a member of the Scheduled Caste as contended by Respondents 1 to 3 in the writ petition ?"
The Division Bench confirmed the views expressed by the learned Single Judge and relying on the decision of this Court in Chakradhar Paswan(Dr.) vs. State of Bihar and the Full Bench decision of the Karnataka High Court in Rajkumar (Dr.) V Gulbarga University, held that the decision of the learned Single Judge did not require any interference."
12. In the present case also the determination was to be made whether the Post Graduate teacher in History to which the writ petitioner was selected was a single post? The Hon'ble Apex Court answered the aforesaid question at Page No.# 8/10 paragraph 24 of the judgment which is quoted herein below "24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this Case. As indicated by the High Court, each discipline which consisted of a single post will have to be dealt with as a separate cadre for the said discipline and in view of the settled law that there can be no reservation in respect of a single post, the appointment of respondent 1 cannot be faulted. This is particularly so having regard to the fact that the several disciplines are confined to one college alone. That is what distinguishes the facts of this case from those of Arati Ray Choudhury case in which the rule of rotation could be applied on account of the fact that two posts of headmistress were available in two colleges run by the same management . Moreover, in Chakradhar Paswan(Dr.) case on which reliance was placed by the High Court it was noticed that while upholding the rule of rotation the Constitution Bench in Arati Ray Choudhury case did not support reservation in a single cadre post."
(emphasis supplied)
13. In the present case, also there are several disciplines in the school. The selection was conducted school wise by the school as per approval of the State authority. In that view of the matter the present facts and law squarely covers by the decision of the Hon'ble Apex court in State of Karnataka and others Vs. K.Govindappa and another reported in (2009) 1 SCC 1. Accordingly Page No.# 9/10 this Court is having no other option but to hold that the post in question is a single post. Accordingly it is declared as the Single post, the advertisement was issued without reservation, the post is not interchangeable and therefore the same is a Single post.
14. So far relating to the argument of learned Standing Counsel, Education Department regarding Rule 3 A of the Rules, 2003, the same will not hold good when the advertisement was issued and selection was made school wise, the State cannot be allowed to advance an argument that cadre is defined in the Assam Secondary Education (Provincialised) Service Rules and therefore the post cannot be treated as a Single post inasmuch as the Hon'ble Apex Court held that expression cadre, post and service cannot be equated with each other and that isolated post in respect of different disciplines cannot exist as a separate cadre. Further in order to apply the rule of reservation, there has to be a plurality of post. Since the selection process in question involves with single post of Botany and not inter changeable with any of the other posts, for the purpose of present selection process, the said post need to be treated as a single post and when it is a single post the policy of reservation shall not apply. Had the selection process been done State wise / cadre wise, for filling up of different vacancy of PG teacher of different schools and the question of reservation shall be applicable, even if, in a given school, there is a single post.
15. Accordingly, the impugned order dated 20.2.2019 is set aside and quashed and the respondent Director is directed to take the recommendation of the selection committee of the school in question and pass a necessary order taking note of the observation and the decision rendered in the present writ petition .The entire exercise shall be carried out within a period of six weeks from the receipt of the present order to be furnished by the petitioner Page No.# 10/10
16. With the above observation, reasons and decision this writ petition is allowed.
JUDGE Comparing Assistant