Gauhati High Court
Jayanta Kr. Das & 3 Ors vs State Of Assam & Ors on 14 February, 2017
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL
PRADESH)
WP(C) No. 5975 of 2014
Petitioner :
Santeswar Adhikary,
S/O Lt. Ramananda Adhikary,
R/o-Vill- Madhya Petla, P.O. Petla Gaon,
Dist- Dhubri, Assam, Pin-783332.
By Advocate:
Mr. A. R. Sikdar, Advocate.
Respondents:
1. State of Assam, represented by the Commissioner and Secy. to the Govt. of Assam, Elementary Education Department, Dispur, Ghy-6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19
3. District Elementary Education Officer, Dhubri, P.O. & Dist- Dhubri, Assam, Pin-783301.
4. Block Elementary Education, Agomoni, P.O. Agomoni, Dist- Dhubri, Assam, By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 1658 of 2011
Petitioners :
1. Jayanta Kr. Das S/O Lt Fanin Kr Das, Uttarpara, Po. Udharbond, Dist. Cachar, Assam.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 1 of 48
2. Chandan Kr. Koiri, S/O Biswanath Koiri, Vill. Dudpatil Pt.IV, PO. Hatiherra, Dist. Cachar, Assam.
3. Md. Saleh Ahmed Barbhuiya, S/o Ala Uddin Barbhuiya, Vill. Peladahar, Po. Niz Joynagar, Dist. Cachar, Assam.
4. Nabarun Chakraborty, S/O Lt. Nilotpal Chakraborty, Rongpur, Silchar, Dist. Cachar, Assam.
By Advocate:
Mr. A. K. Purkayastha, Advocate.
Respondents:
1. State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Dispur, Ghy-6.
2. Commissioner & Secretary to the Govt. of Assam, Deptt. of Education, Assam, Dispur, Ghy-6
3. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 5593 of 2015
Petitioners:
1. Prasenjit Purkayastha, S/o Lt. Prasanta Kr. Purkayastha, Lazmibazar Road, Karimganj, P.O. & Dist. Karimganj, Assam, Ph. No.9435523601.
2. Jagadindu Deb, S/o Late Jagadish Chandra Deb, Azad Sagar Raod, Karimganj, Po & Dist-Karimganj, Assam, Phone No.:-7399172516.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 2 of 48 By Advocate:
Dr. B. Ahmed, Advocate.
Respondents:
1. State of Assam, to be by the Commissioner & Secy.
to the Govt. of Assam, Education (Elementary) Deptt., Dispur, Ghy-06.
2. Commissioner & Secy.
to The Govt. Of Assam Education (Elementary) Deptt.-Cum-Chairman Selection Committee, Dispur, Ghy-06.
3. Director, Elementary Education, Assam-Cum-Member Selection Committee, Kahilipara, Ghy-19.
4. Smt. Reepa Sarma, Roll No.245
5. Sri Peter Choudhury, Roll No.634.
6. Sri Ruby Bharaty, Roll No.726.
7. Sri Uday Bhaskar Sarma, Roll No.371.
8. Sri Bozlul Basit Sarkar, Roll No.1590
9. Sri Dipanwita Kalita, Roll No.1101.
10. Smt. Sangeeta Pathak, Roll No.283.
11. Sri Diganta Pathak, Roll No.1964
12. Sri Biswajit Dey, Roll No.2272
13. Sri Jina Alom, Roll No.376
14. Smt. Jayanti Paul, Roll No.1616.
15. Sri Samarendra Saharia, Roll No.1090
16. Sri Biren Kanti Hazarika, Roll No.795 WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 3 of 48
17. Smt. Jasmin Begum, Roll No.594
18. Sri Madhab Patgiri, Roll No.195
19. Sri Prabitra Tamuli, Roll No.2082
20. Smt. Jayasree Chakroborty, Roll No.1076
21. Dipak Kr. Basumatary Roll No.701.
22. Rajendra Kalita, Roll No.749
23. Rabindra Kr. Pathak, Roll No.425
24. Ritu Mahanta, Roll No.36.
25. Smt. Papori Gogoi, Roll No.750
26. Madhab Saha, Roll No.1790
27. Pranab Kr. Bora, Roll No.580
28. Manindra Goswami, Roll No.817
29. Samiul Haque Sarkar, Roll No.604
30. Smt. Ayesa Sultana, Roll No.263
31. Hem Ch. Kakti, Roll No.227.
32. Siteswar Nath, Roll No.1265
33. Santosh Kr. Brahma, Roll No.1541
34. Prabin Ch. Rabha, Roll No.33
35. Prema Nath Doley, Roll No.2154
36. Lachit Basumatary, Roll No.1387
37. Smt. Rita Rabha, Roll No.302.
38. Binod Morang, Roll No.692
39. Lalawmpui Tulor, Roll No.1408
40. Robinson Engti, Roll No.702.
41. Bhubaneswar Ingti, Roll No.262
42. Ashim Das, Roll No.1838 WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 4 of 48
43. Nayantara Haloi, Roll No.1007.
44. Nishipad Das, Roll No.147
45. Dilip Bania, Roll No.544
46. Debasish Singha, Roll No.2166
47. Honey Chamuah Nath, Roll No.2053
48. Gopak Kakoti, Roll No.2134
49. Bidyut Gogoi, Roll No.108
50. Smt. Utpola Gogoi, Roll No.1862
51. Smt. Rubi Moni Nath, Roll No.1191
52. Kishore Kr. Rajbongshi, Roll No.904
53. Ajay Kr. Chetry, Roll No.2155
54. Smt. Santi Devi, Roll No.2171
55. Smt. Rinti Dihingia, Roll No.1645
56. Smt. Nilakshi Rajkumari, Roll No.2025
57. Mizanur Rahman Bhuyan, Roll No.50
58. Monoj Kr. Phukan, Roll No.1071
59. Smt. Nandini Mukerjee, Roll No.1483
60. Robi Ch. Seal, Roll No.611
61. Smt. Geeta Devi, Roll No.1142
62. Tankeswar Gogoi, Roll No.303
63. Md. Mabiya Ali, Roll No.1032,
64. Sew Kr. Sahu, Roll No.1559,
65. Smt. Anjali Karmakar, Roll No.603,
66. Banedict Hembrom, Roll No.317,
67. Manish Thakur, Roll No.916,
68. Saroj Kanu, Roll No.1997, WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 5 of 48
69. Smt. Rakhi Sahu, Roll No.2231,
70. Monoj Kr. Koiri, Roll No.1798,
71. Ajoy Kr. Chouhan, Roll No.1872,
72. Anjan See, Roll No.581,
73. Smt. Moromi Mahanta,Roll No.246,
74. Dipak Gatuar, Roll No.783,
75. Pabitra Kurmi, Roll No.1105,
76. Kalidas Tanti, Roll No.2351,
77. Tapan Projapati, Roll No.582,
78. L. Joy Ch. Singha, Roll No.92,
79. Smt. Manju Devi, Roll No.1070
80. Lisabela W. Momin, Roll No.132
81. Romesh Ramchiary, Roll No.1890
82. Amar Sing Brahma, Roll No.890
83. Banamali Pegu, Roll No.635
84. Hira Doley, Roll No.755 Notices upon respondent Nos. 4 to 84 are to be served through the Director of Elementary Education, Assam, Kahilipara, Ghy-19. By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 1698 of 2011
Petitioners :
1. Tazimul Hoque, S/o Ezatullah Ahmed, R/O Vill. No. 1 Karigaon, P.O.Barpathar, Dist Kamrup, Assam.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 6 of 48
2. Sri Surendra Nath Basumatary, S/o Lt. Dankha Basumatary, R/oVill-No. 1 Chaibari, PO-Chaibari, Dist-Baksa, Assam.
3. Sri Girish Kalita, S/o Sri Jogesh Kalita, Vill-Jowardi, PO Kaithalkuchi, Dist-Nalbari, Assam.
4. Sri Ragunath Barua, S/o Lt Krishan Ram Barua, Vill-Uttar Bankata, PO-Natun Chhaygaon, Dist-Kamrup, Assam.
5. Sri Krishna Kanta Deka, S/o Sri Nakul Ch. Deka, Vill & PO Majorkuri, Dist-Kamrup, Assam.
6. Rashid Ahmed, S/o Lt Maniruddin Ahmed, Vill & PO Adabari, Dist-Nalbari, Assam.
7. Sri Pabitra Kumar Yalukdar, S/o Sri Umesh Ch. Talukdar, R/o Uparhati, P.O.Uparhati, Dist-Kamrup (M), Assam.
By Advocate:
Mr. A. R. Sikdar, Advocate.
Respondents:
1. State of Assam represented by the Chief Secy.
to the Govt. of Assam, Dispur, Ghy-6
2. Commissioner & Secretary to the Govt. of Assam, Elementary Education Department, Dispur-Ghy-6.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 7 of 48
3. Director of Elementary Education, Assam, Kahilipara, Ghy-19
4. Selection Committee, represented by its Chairman, C/o Director of Elementary Education, Assam, Kahilipara, Guwahati-19.
5. Reepa Sarmah.
6. Peter Choudhury.
7. Ruby Bharaty.
8. Uday Bhaskar Sarma
9. Bozlul Basit Sarkar.
10.Deepanwita Kalita.
11.Sangeeta Kalita.
12.Diganta Pathak.
13.Biswajit Dey.
14. Jinna Alom.
15.Jayanti Paul.
16.Samarendra Saharia.
17. Biren Kanth Hazarika.
18. Jesmin Begum.
19.Madhab Patgiri.
20.Prabitra Tamuli.
21. Jayashree Chakrabarty.
22.Dipak Kr. Basumatary.
23.Rajendra Kalita.
24.Rabindra Kr. Pathak.
25.Ritu Mahanta.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 8 of 48
26.Papori Gogoi.
27. Madhab Saha.
28.Pranab Kr. Bora
29.Manindra Goswami.
30. Samiul Hoque Sarker.
31.Ayesha Sultana.
32.Hem Ch. Kakati.
33.Siteswar Nath.
34.Santosh Kr. Brahma
35.Prabin Ch. Rabha.
36.Prema Nath Doley
37.Lachit Basumatary.
38.Rita Rabha.
39.Binod Morang.
40. Dilip Bania.
41.Rubi Mani Nath.
Respondent Nos. 5 to 41 are C/o Director of Elementary Education, Assam, Kahilipara, Guwahati-19 and notices to be served upon these respondents through respondent No. 3.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Advocate, Mr. S. Borthakur, Advocate.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 9 of 48 WP(C) No. 4760 of 2014 Petitioners:
1. Upen Goswami, S/o- Lt. Ratneswar Goswami, Asstt. Teacher, Kamarkuchi Me School, R/O- Near Bathou Mandir, Vill.- Dalbori, Satgaon, P.O.- Udayan Bihar, Dist.- Kamrup (M), Assam, Guwahati- 781127.
2. Aditi Barman D/O- Sri Pramod Kumar Barman, Asstt. Teacher, Kamarkuchi Me School, R/O- Kanaklata Path, Rukminigaon, P.O.- Khanapara.
By Advocate:
Mr. B. Purkayastha, Advocate.
Respondents:
1. State of Assam, represented by the Commissioner and Secy.
to the Govt. of Assam, Elementary Education Department, Dispur, Ghy-6
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 546 of 2014
Petitioners :
1. Jayanta Kumar Das, S/O- Lt. Fanin Kumar Das, R/O- Uttarpara, P.O.- Udharbord, Dist.- Cachar, Assam.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 10 of 48
2. Chandan Kumar Koiri S/O- Biswanath Koiri, R/O Vill.- Dudpatil Pt- IV, P.O.- Haticherra, Dist.- Cachar, Assam.
3. Saleh Ahmed Barbhuiya R/O Vill.- Peladahar, P.O.- Niz- Joynagar, Dist.- Cachar, Assam.
4 Nabarun Chakraborty S/o- Lt. Nilotpal Chakraborty, R/o- Rongpur, Silchar, Dist.- Cachar, Assam. By Advocate:
Mr. A. K. Purkayastha, Advocate.
Respondents:
1. State of Assam represented by the Commissioner & Secy.
to the Govt. of Assam, Dispur, Ghy- 6.
2. Commissioner & Secretary to the Govt. of Assam, Deptt. of Education, Assam, Dispur, Ghy-6
3. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 522 of 2014
Petitioners :
1. Hiranya Kumar Nath, S/O- Sri Gambhir Chandra Nath, Hindi Teacher, Laxminath Bezboruah M.E. School, S.B. Complex, Kahilipara, Ghy- 19, Dist.- Kamrup, Assam.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 11 of 48
2. Munin Khaund S/O- Lt. Cheni Khaund, Vill.- Poarbil, P.O.- Lete Kupukhuri, Dist.- Lakhimpur, Assam.
3. Ajoy Biplov Nath S/O- Lt. Bijoy Nath, Vill.- Anaig Haria, P.O.- Angar Khowa, Dist.- Lakhimpur, Assam. By Advocates:
Mr. B. Purkayastha, Advocate, Mr. A. R. Bhuiya, Advocate.
Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 5639 of 2014
Petitioners :
1. Imranuzzaman Choudhury, S/o Ahmeduzzaman Choudhury, R/o Hailakandi Town, Ward No. XIII-A, College Road, P.O. Hailakandi, P.S. & Dist. Hailakandi, Pin - 788155.
2. Joy Kishan Surana S/o Lt. Badan Mal Surana, R/o Ward No. IX, Lala Town, P.O. & P.S. Lala Dist. Hailakandi, Assam.
3. Hilal Uddin Laskar S/o lt. Abul Hussain Laskar, R/o Vill- Bhatirkupa Part-III, P.O, P.S. & Dist. Hailakandi, Assam.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 12 of 48 By Advocate:
Mr. M. H. Laskar., Advocate.
Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education Department, Assam (Civil) Secretariat, Dispur, Guwahati- 788006.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 4813 of 2015
Petitioner :
Sarika Das, W/o Sri Kanu Ch. Das, R/o Lala Ward No. 10, SS Sarani P.O. & P.S. Lala, Dist. Hailakandi, Assam. By Advocate:
M. U. Mondal, Advocate.
Respondents:
1. State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Education (Elementary) Department, Dispur, Guwahati-6.
2. Director of Elementary Education, Assam Kahilipara, Ghy-19.
3. District Elementary Education Officer, Hailakandi, Assam.
4. Suresh Sarka.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 13 of 48
5. Harekrishna Das.
6. Sri Nabajit Bayan.
7. Manish Das.
8. Mrs. Lekha Moni Hira.
9. Lalit Hazarika.
10. Adhir Das.
11. Sri Jayanta Kr. Das.
12. Sri Niranjan Das.
13. Sri Anup Kumar Biswas.
14. Sri Jiten Deka.
15. Mrs. Mamoni Deka Barah (Khaklari).
16. Mrs. Sumi Saikia.
17. Sukusri Boro.
18. Sri Lakhyajit Doley.
19. Mrs. Bivarani Sonowal.
20. Naren Kr. Taye.
21. Kushumani Basumatari.
22. Sri Debanan Boro.
23. Mrs. Hiramai Sonowal
24. Dipali Narayein.
25. Sri Keshab Ch. Deori.
26. Dhananjay Narzary.
27. Jaleswar Narzary.
28. Ashu Kumar Basumatary.
29. Jaba Rani Boro.
30. Biren Sing Engti.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 14 of 48
31. Aboni Gogoi.
32. Padmeswar Borah.
33. Parashar Saikia.
34. Monoj Kr. Baruah.
35. Gunin Dutta.
36. Rekhamoni Borah.
37. Sri Pranab Gogoi.
38. Sankar Chetri.
39. Sri Tarun Kr. Borah.
40. Naranath Gohain.
41. Mrs. Ranju Das Saloi.
42. Sri Naba Krishna Roy.
43. Ajoy Shushan Das.
44. Sri Ranjan Kr. Das.
45. Tutumoni Nath.
46. Sri Rudra Saikia.
47. Paresh Deka.
48. Mr. Dimbeswar Gogoi.
49. Sri Partha Jyoti Bhuyan.
50. Pabitra Hazarika.
51. Sri Jyotish Das.
52. Surabhai Khanikar.
53. Dipak Sarma.
54. Sri Partha Pratim Chakraborty.
55. Raju Sharma.
56. Inamul Majid.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 15 of 48
57. Samin Baishya.
58. Ranjan Barman.
59. Jadu Moni Chetia.
60. Mrinmoy Goswami.
61. Sri Baharul Islam.
62. Dr. Anisur Rahman.
63. Rajesh Chakraborty.
64. Manika Devee.
65. Akherul Islam Sarkar.
66. Sri Rahim Uddin Laskar.
67. Ratul Pathak.
68. Md. Ejajul Hussain.
69. Nazima Hussain.
70. Nazima Sultana.
71. H. Gyanendra Singha.
72. Nazrul Islam Baktier.
73. Milan Das.
74. Md. Tazimul Hoque.
75. Parul Kalita.
76. Mrs. Swapnali Baruah.
77. Kishor Kumar Deka.
78. Sri Riaz Uddin Barbhuiya.
79. Abu Bakkar Siddique.
80. Abdul Latif Bhuyan.
81. Nazmal Haque Laskar.
82. Biraj Das.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 16 of 48
83. Sri Navaratna Kakaty.
84. Md. Abdul Razzaque.
85. Sri Mehbub Ahmed Laskar.
86. Matiar Tanman.
87. Parag Ch. Dutta.
88. Md. Mainul Haque Choudhury.
89. Sri Dhananjoy Barman.
90. Mijanur Rahman Sheikh.
91. Abul Kalam Ahmed.
92. Mrs. Deepa Konwar.
93. Mrs. Bijumoni Neog.
94. Sri Sanjay Kr. Saha.
95. Miss Farida Begum.
96. Sri Anup Purkayastha.
97. Pulak Thakuria.
98. Hemanta Baruah.
99. Biswajyoti Sarma.
100. Sri Bipul Kalita.
101. Sri Niran Dutta.
102. Brajendra Kumar Sarma.
103. Bodrul Islam Choudhury.
104. Mohor Ali Sheikh.
105. Md. Shofiqul Islam Anchary.
106. Sri Lakyadhar Sarma.
107. Abdul Kader Akanda.
108. Subhash Dey.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 17 of 48
109. Sri Bijoy Kar.
110. Gopal Brahma.
111. Md. Dildar Hussain.
112. Niyati Pathak.
113. Noor Mohammud Barbhuyan.
114. Premadhar Sarma.
115. Md. Raju Ahmed.
Respondent Nos. 4 to 115 are C/o-Director of Elementary Education, Assam, Kahilipara, Dist.-Kamrup (M), Ghy-19.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 3037 of 2014
Petitioner :
Maynul Hoque Choudhury, S/O Lt. Javed Ali, R/O Dhanbandha, P.O. Sankuchi (Colony), P.S. Barpeta, Dist- Barpeta, Assam.
By Advocate:
Mr. J. Islam, Advocate.
Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 18 of 48
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19.
3. District Elementary Education Officer Barpeta, Dist- Barpeta, Assam.
4. Mr. Tazimul Hoque, S/O Md. Ezutullah Ahmed, R/O Sundorbori, Suleman Ali Path, Jalukbari, P.O.Gauhati University, P.S. Jalukbari,Dist.Kamrup (M), Assam-781014.
5. Mr. Rajesh Chakroborty, S/O Late Ram Ranjan Chakroborty, R/O Ward No.13,College Road, Near Bipadnasinibari, P.O.,P.S & Dist. Hailakandi, Assam-788151.
6. Md.Abdur Razzaque, S/O Md. Hamed Ali, R/O No. 1 Ahmedpur, P.O. Islam Gaon, P.S. Bihpuria, Dist.Lakhimpur,Assam-787054.
7. Mr. Nazmul Haque Laskar, S/O Mr. Abdul Matahir Laskar, R/O Vill. Rongpur, P.O. Rongpur (North), P.S. & District Hailakandi, Assam-788155.
8. Md. Rahim Uddin Laskar, S/O Mr. Matafor Ali Laskar, R/O Hailakandi Town Ward No.1,P.O. R.P.Road, P.S. And Dist.Hailakandi, Assam-788151.
9. Mr. Ajay Bhusan Das, S/O Late Ananda Charan Das, R/O Vill. & P.O. Sripur, P.S. Ramkrishna Nagar, Dist. Karimganj, Assam-788166.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 19 of 48 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 4651 of 2015
Petitioner :
Md. Habibur Rahman, S/o Md. Azizul Hoque, Vill. Shagunbahi, P.O. Shagunbahi, Dist- Morigaon, Assam. By Advocate:
Mr. G. Baishya, Advocate.
Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 4184 of 2015
Petitioner :
Mrs. Lilawati Sut Dutta, W/o Sri Tulshi Ranjan Dutta, applicant for the Post of SI of Schools, Asstt. Teacher, Town Model LP School, Lakhimpur, R/O W/No.12 KB Road, P.O. North Lakhimpur, Dist- Lakhimpur, Assam, Pin-787001.
By Advocates:
Mr. B. Purkayastha, Advocate. Mr. A. R. Bhuyan, Advocate.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 20 of 48 Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 4332 of 2015
Petitioner :
Gayatri Nath, W/o Sri Subodh Nath, applicant for the Post of SI of Schools, Asstt. Teacher, No.740 Muslimpatty LP School, Barpeta, R/O-Vill: Metuakuchi, Barpeta Town, W/No.19, P.O. & Dist-Barpeta, Assam, Pin-781301.
By Advocates:
Mr. B. Purkayastha, Advocate, Mr. A. R. Bhuyan, Advocate. Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 21 of 48 WP(C) No. 784 of 2015 Petitioners :
1. Sailen Gohain, S/o Lt. Nagen Gohain, R/o-Vill: Kotoha Nagaon, P.O. Bali Gaon, P.S. Dibrugarh, Pin-785675, Dist- Dibrugarh, Assam.
2. Rajib Konwar, S/O Lt. Sarukon Konwar, R/O Tengakhat Chungigaon, P.O. Lengrai, P.S. Tengakhat, Pin-786103, Dist- Dibrugarh, Assam.
3. Mousumi Baruah, W/o Sri Uday Kamal Chetia, R/o-Vill:: Khania Gaon, P.O. Khania Gaon Via C.R. Building, P.S.& Dist.-Dibrugarh, Assam.
By Advocate:
Mr. A. Borgohain, Advocate.
Respondents:
1. State of Assam, represented by the Commissioner & Secy.
to the Govt. of Assam, Education (Ele) Deptt., Sachivalaya, Dispur, Ghy-6.
2. Commissioner & Secretary to the Govt. of Assam, Education Elementary Deptt. Sachivalaya, Ghy-6.
3. Director of Elementary Education, Assam, Kahilipara, Ghy-19.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 22 of 48 WP(C) No. 4261 of 2015 Petitioner :
Md. Foizul Jalal Laskar, S/O Lt. Ilias Ali Laskar, applicant for the Post of SI of Schools, Assistant Teacher, Udali Borjoha LP School, Nagaon R/o Vill- Borjohagaon, P.O. Udali Bazar, Dist. Nagaon, Assam, Pin - 782446.
By Advocates:
Mr. B. Purkayastha, Advocate, Mr. A. R. Bhuyan, Advocate. Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 6939 of 2015
Petitioners :
1. Saidur Rahman Ansari, S/o Abdur Rahim, Vill. Salkati Pather, P.O. Salakati Pather, PS. Dhing, Dist- Nagaon, Assam.
2. Md. Safiqur Rahman, S/o Abdur Rahim, Vill. & P.O. Salkati Pather, P.S Dhing, Dist- Nagaon, Assam.
By Advocate:
Mr. H. Das, Advocate.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 23 of 48 Respondents:
1. State of Assam, to be represented by the Commissioner & Secretary to the Govt. of Assam, Education (Ele) Deptt., Dispur, Ghy- 6.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19.
By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.WP(C) No. 5938 of 2015
Petitioner :
Aftab Hussain Laskar S/o. Lt. Azir Uddin Laskar, Vill. Uttar Jasnabad Part-II, P.O. Lalamukh, Dist. Hailakandi, Assam. By Advocate:
Mr. M. H. Laskar, Advocate. Respondents:
1. State of Assam, represented by the Commissioner & Secy.
to the Govt. of Assam, Education Deptt., Assam (Civil) Secretariat, Dispur, Ghy-781006.
2. Director of Elementary Education, Assam, Kahilipara, Ghy-19 By Advocates:
Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, Standing Counsel, Elementary Education.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 07.02.2017
Date of Judgment : 14.02.2017
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 24 of 48 JUDGMENT & ORDER Heard Mr. A. K. Purkayastha, Mr. M. K. Mazumdar, Mr. B. Sinha, Dr. B. Ahmed, Mr. B. Purkayastha, Mr. A. R. Bhuiya, Mr. G. Baishya, Mr. A. Borgohain, Mr. M. H. Laskar and Mr. H. Das, learned counsel for the petitioners; Mr. D. Saikia, learned Sr. Addl. Advocate General, Assam assisted by Mr. A. Deka, learned counsel for the State respondents and Mr. S. Borthakur, learned counsel for respondent Nos. 18, 35 & 37 in WP(C) No. 1698/2011.
2. This order will dispose of the above bunch of cases, all pertaining to selection and appointment to the post of Sub-Inspector of Schools in the Elementary Education Department, Govt. of Assam.
3. An advertisement dated 02.10.2005 was issued by the Director of Elementary Education, Assam inviting applications to fill up 81 vacancies in the post of Sub-Inspector of Schools in Class-II of Assam School Service (Inspecting). While the upper age limit was fixed at 38 years as on 01.01.2005 relaxable for Scheduled Caste (SC) and Scheduled Tribe (ST) candidates as per rules, the eligibility criteria fixed was graduation in Arts/Science/Commerce with BEd/BT degree from any recognized university. It was also mentioned that candidate should have 5 years of teaching experience in recognized /provincialised/Government schools. In addition to vertical and horizontal reservation, 7 vacancies were earmarked for candidates having knowledge of different languages, such as, Bodo, Nepali, Missing, Garo and Bishnupriya Manipuri. It was also mentioned that 15 out of 81 vacancies would be filled up from candidates belonging to Tea Garden and Ex-Tea Garden community.
It was mentioned that the post of Sub-Inspector of Schools carried the pay scale of Rs.3580-8750 pm plus other allowances as admissible under the rules. The last date of receipt of application was fixed on 28.10.2005. It is stated WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 25 of 48 that interview was held pursuant to the said advertisement from 06.01.2006 to 12.01.2006. About 1400 candidates including the petitioners had appeared in the interview.
4. Selection Committee comprised of 7 senior officials of the Elementary Education Department, such as, Director, Joint Director, Deputy Director etc. However, members of the said Selection Committee retired thereafter from service on attaining the age of superannuation.
5. Govt. of Assam reconstituted the Selection Committee vide notification dated 27.12.2010. This Selection Committee did not hold any interview.
6. On 01.03.2011, Director of Elementary Education, Assam published a provisional select list, category wise, as under:-
Unreserved -29
ST(P) -6
ST(H) -3
SC -4
OBC/MOBC -16
PH -2
Tea & Ex-Tea Garden -14
Language -7
___________________________________ Total -81
7. WP(C) Nos. 1658/2011 and 1698/2011 have been filed with the prayer for quashing of the select list dated 01.03.2011 as well as the consequential appointments made. Further prayer made is for holding the selection afresh. While in WP(C) No. 1658/2011 the selected candidates have not been made parties, in WP(C) No. 1698/2011 the selected candidates have been made parties from respondent Nos. 5 to 41. WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 26 of 48
8. As per order dated 01.04.2011 passed by this Court in WP(C) No. 1698/2011 appointments pursuant to select list dated 01.03.2011 have been made subject to outcome of the writ petition.
9. Quite belatedly WP(C) No. 5593/2015 was filed for quashing of select list dated 01.03.2011 as well as the consequential appointments made and seeking holding of selection afresh. Here, the selected candidates have been made parties from respondent Nos. 4 to 84. This Court in its order dated 18.09.2015 had directed issuance of notice to respondent Nos. 4 to 84 by way of newspaper publication. Accordingly, advertisement was published in the daily newspaper 'Asomiya Pratidin' on 11.10.2015. In this regard, petitioners filed an affidavit on 02.11.2015. By a separate order passed today in WP(C) No. 5593/2015, service of notice on respondent Nos. 4 to 84 has been accepted.
10. On 04.01.2014 a notification was issued by the Elementary Education Department, Govt. of Assam stating that pending finalization of service rules, Governor of Assam was placed to notify that the post of Sub Inspector of Schools in the Elementary Education Department would be filled up by way of direct recruitment from amongst Assistant Teachers of provincialised/Government Schools with BEd degree having 5 years of service experience, not exceeding 40 years of age on the first day of January of the year in which the selection is made, relaxable in case of Scheduled Caste (SC) and Scheduled Tribe (ST) candidates. It was mentioned that there would be a Selection Committee comprising of four members and on the recommendation of the Selection Committee, appointments would be made. The composition of the Selection Committee was notified as under:-
1. Senior most Secretary to the Govt. of Assam, Elementary Education Department or his WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 27 of 48 nominee not below the rank of Commissioner and Secretary -Chairman
2. Director of Elementary Education, Assam -Member Secretary
3. Deputy Secretary, Elementary Education Department -Member
4. Additional Director/Joint Director of Elementary Education -Member 10.1. The notification further mentioned that candidates would be selected out of total marks of 250 in the following manner:-
Percentage of marks in graduation -100 Percentage of marks in BT/BEd -100 Viva Voce - 50
11. On 10.01.2014 an advertisement was issued by the Director of Elementary Education, Assam inviting applications from eligible candidates to fill up 128 vacancies in the post of Sub-Inspector of Schools in Class-II of Assam School Service (Inspecting). It was mentioned that selection would be confined to Assistant Teachers of provincialised/Government schools. Upper age limit was fixed at 40 years as on 01.01.2014, relaxable for Scheduled Caste (SC), Scheduled Tribe (ST) and Physically Handicapped (PH) candidates as per rule. Qualification prescribed was graduation with BEd/BT degree from any recognized university and having minimum 5 years experience of teaching in provincialised/Government schools. The post carried the scale of pay of Rs.5200-20,200 (PB-2) pm plus Grade Pay of Rs. 3300 plus other allowances as admissible under the rules. Both vertical and horizontal reservation was provided as per rule. Last date for submission of application was 03.02.2014.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 28 of 48
12. Immediately thereafter a corrigendum dated 18.01.2014 was issued by the Director of Elementary Education, Assam whereby second paragraph in the advertisement dated 10.01.2014 was substituted from "applications are invited from candidates amongst the Assistant Teachers of provincialised/Government schools" to "applications are invited from candidates amongst the Assistant Teachers of provincialised/Government schools carrying the scale of pay of Rs. 5200-20,200(PB-2)+Grade Pay of Rs. 3300 or the scale of pay corresponding to it." In other words, as per the corrigendum dated 18.01.2014 only Assistant Teachers of provincialised/Government schools having pay scale of Rs.5200-20,200 (PB-
2) plus Grade Pay of Rs. 3300 or corresponding pay scale would be entitled to apply pursuant to the advertisement dated 10.01.2014.
13. This came to be challenged in WP(C) Nos. 5639/2014, 522/2014, 4760/2014, 3037/2014, 784/2015, 4184/2015, 4261/2015, 4332/2015, 4651/2015, 5938/2014 and 6939/2015.
14. In WP(C) No. 546/2014 prayer made is for quashing the advertisement dated 10.01.2014 read with the corrigendum dated 18.01.2014, further seeking a direction to the respondents to fill up the notified vacancies from amongst candidates who had participated in the selection process pursuant to the advertisement dated 02.10.2005.
15. Prayer made in WP(C) No. 5975/2014 is to quash the selection process pursuant to the advertisement dated 10.01.2014 read with the corrigendum dated 18.01.2014, further seeking a direction to the respondents to initiate fresh selection process by prescribing the upper age limit of the candidates at 50 years instead of 40 years.
16. In WP(C) No. 4813/2015, the prayer made is to quash the select list dated 24.07.2015 and to hold the selection afresh pursuant to WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 29 of 48 advertisement dated 10.01.2014. It may be mentioned that following the selection process pursuant to the advertisement dated 10.01.2014 as modified by the corrigendum dated 18.01.2014, select list dated 24.07.2015 was published containing the names of 112 candidates as under:-
SC -11
ST(P) -15
ST(H) - 1
OBC/MOBC -22
Unreserved -63
______________________
Total -112
The selected candidates have been brought on record as respondents.
17. Grounds of challenge, as highlighted in the writ petitions, may be summarized as under:-
(i) In so far the select list dated 01.03.2011 is concerned, contention of the petitioners is that after the advertisement was issued on 02.10.2005, interview was conducted by a Selection Committee during the period 06.01.2006 to 12.01.2006. Members of this Selection Committee had thereafter retired from service on attaining the age of superannuation. On 27.12.2010 a new Selection Committee was constituted. This Selection Committee did not hold interview afresh but published a select list on 01.03.2011. There was enormous delay between holding of interview and declaration of result. That apart, interview was conducted by a different Selection Committee and the selected candidates were short-listed by another Selection Committee constituted subsequently in the year 2010. The second Selection Committee could not have selected the candidates without WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 30 of 48 assessing the inter-se merit by holding interview. This is untenable and illegal.
(ii) The select list, that too provisional, was published very hurriedly on the eve of general elections in the State of Assam in the year 2011. There is reason to believe that there were lots of anomalies in the short-listing of candidates resulting in selection of undeserving candidates for extraneous and collateral purpose. In fact, the select list was published after the model code of conduct came into force, rendering the same invalid.
(iii) Post of Sub-Inspector of Schools is not an encadred post under the Assam Education Service Rules, 1982. The said Rules are silent regarding the post of the Sub-Inspector of Schools. Therefore, the selection process pursuant to advertisement dated 02.10.2005 has no sanction of law.
(iv) Reservation of vacancies on account of different languages and communities beyond the prescribed percentage of reservation under the statute, both vertical and horizontal, has also vitiated the selection.
(v) Post of Sub-Inspector of Schools is a feeder cadre under the aforesaid Rules for the post of Deputy Inspector of Schools and therefore recruitment to the said post should be by way of promotion as contemplated under Rule 11 of the aforesaid Rules. That having not been done, selection has been rendered untenable in law.
(vi) Government notification dated 04.01.2014 is illegal and arbitrary as there could not be any valid justification to limit the candidature to Assistant Teachers of provincialised/Government WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 31 of 48 schools drawing pay scale of 5200 to 20,200 (PB-2) plus Grade Pay of Rs. 3300. This classification is unreasonable and has no nexus to the object sought to the achieved i.e. selection of candidates for the post of Sub-Inspector of Schools.
(vii) Corrigendum dated 18.01.2014 is illegal because the same amounted to altering the eligibility criteria prescribed in the advertisement dated 10.01.2014. Besides, the qualifications prescribed by the corrigendum in terms of the Government notification dated 04.01.2014 is illegal and arbitrary and has no nexus to the object sought to be achieved, namely, selection of candidates for the post of Sub-Inspector of Schools.
(viii) Qualifications prescribed for the post of Sub-Inspector of Schools were different in the two selection process. In the first one pursuant to advertisement dated 02.10.2005, it was open recruitment with certain eligibility criteria and teaching experience whereas in the second one pursuant to advertisement dated 10.01.2014, as modified, selection was confined to serving teachers drawing a particular pay-scale with certain eligibility criteria and teaching experience.
(ix) Fixation of upper age limit at 40 years is not justified. It should be 50 years which was also the prescribed upper age limit in the selection for the post of Sub-Inspector of Schools conducted by the Bodoland Territorial Council (BTC) pursuant to its advertisement dated 21.06.2014.
18. State has filed a number of affidavits in different writ petitions.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 32 of 48
19. Mr. D. Saikia, learned Sr. Additional Advocate General has specifically referred to the stand taken by the State in the affidavits filed in WP(C) Nos. 1658/2011, 546/2014 and 3037/2014.
20. In WP(C) No. 1658/2011, Commissioner and Secretary to the Govt. of Assam, Elementary Education Department Sri Preetam Saikia has filed an affidavit on 20.05.2016. In this affidavit, it is stated that appointments to the 81 vacancies in the post of Sub-Inspector of Schools was made by observing due procedure following advertisement dated 02.10.2005. It is admitted that selection process by way of oral interview was held in 2006 by constituting an Interview Board (Selection Committee). It is stated that all the 81 selected persons were appointed as Sub-Inspector of Schools vide order dated 23.02.2011 issued by the Director of Elementary Education, Assam. Though it is mentioned that minutes of the meeting of the Selection Committee held on 17.02.2011 is annexed to the affidavit as Annexure-A, what has been annexed is a copy of minutes of the meeting of the High Power Committee on dropped teachers held on 22.12.2014 which is a completely different subject altogether. [However, minutes of the Selection Committee meeting held on 17.02.2011 has been annexed to the affidavit filed by the Commissioner and Secretary to the Government of Assam in the Elementary Education Department in WP(C) No. 3475/2011.] It is again stated that the selection was made on the basis of performance of the candidates in the oral interview. In paragraph 15, it is stated that the post of Sub-Inspector of Schools is filled up by way of direct recruitment and thereafter they are promoted to the cadre of Block Elementary Education Officer which is a gazetted post. Thereafter, the next promotional post is Deputy Inspector of Schools. Contending that post of Sub-Inspector of Schools was required to be filled up by way of direct recruitment, it is stated that advertisement was issued in the year 2005, interview was held in 2006 and appointments were made in 2011. In paragraph 26 of the affidavit, it is stated WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 33 of 48 that model code of conduct relating to the assembly elections in the State of Assam came into force w.e.f. 01.03.2011 but before that day the appointments were made. Lastly, it is stated that selection of candidates was done in a fair manner.
21. In WP(C) No. 546/2014, an affidavit has been filed by the Director of Elementary Education Sri Sanjeev Kr. Bhuyan on 25.05.2016. It is stated that there are a total of 274 posts of Sub-Inspector of Schools in the "general areas" in the State of Assam and 21 posts within the jurisdiction of BTC. Out of the 274 posts, 89 posts were filled up prior to 2011 including by persons belonging to the Non-Formal Education stream. Out of the 81 vacancies advertised on 02.10.2005, 57 out of the 81 selected candidates had joined. Thereafter, fresh process was initiated to fill up the remaining 128 posts. The posts which remained vacant after the selection process initiated pursuant to advertisement dated 02.10.2005 (81-57=24) were included in the selection process initiated pursuant to advertisement dated 10.01.2014. It is stated that out of the 128 posts advertised on 10.01.2014, 107 posts have been filled up. Regarding the selection process initiated pursuant to the advertisement dated 02.10.2005, it is stated that 81 candidates were selected and offered appointment in the following manner:-
1. Reservation for Tea and Ex-tea Garden -14
2. Reservation for language -7
3. 100 point roster - ST(P) 10% -6
- ST(H) @5% -3
- SC @7% -4
- OBC/MOBC@ 27% -16
- PH @ 3% -2
4. General - 29 ___________________________________________________________ Total - 81 WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 34 of 48 Out of the above 81 selected candidates 57 had joined.
21.1 It is contended that petitioners had participated in the selection process pursuant to the aforesaid advertisement dated 02.10.2005 and having not been selected, they would not be entitled to challenge the validity of the selection process.
22. In WP(C) No. 3037/2014, an affidavit was filed by Sri Preetam Saikia, the then Secretary to the Govt. of Assam, Elementary Education Department on 17.12.2014. In this affidavit, it is stated that on 04.10.2013, Addl. Chief Secretary to the Govt. of Assam, Education Department had put up a note to the effect that if rules for filling up the post of Sub-Inspector of Schools were not available, recourse could be had to office orders and office memorandum laying down qualification and mode of recruitment. It was also stated that in case nothing was available office memorandum with approval of competent authority could be issued laying down the requisite qualification. Since no concrete guidelines were available, Director of Elementary Education submitted a copy of extract of proceedings of the Govt.
of Assam, Education Department dated 19.03.1951 with a copy of the Assam Education Service Rules, 1982 requesting issuance of office memorandum laying down details of recruitment etc. It was also suggested that preparation of service rule may be taken up and pending finalization of service rules, notification may be issued for direct recruitment to the post of Sub-Inspector of Schools. Accordingly, with the approval of the Minister of Education, a decision was taken to issue an advertisement calling for applications for the said post and in the meanwhile, Govt. of Assam, Elementary Education Department to initiate the process to prepare and finalize the service rules. Since there was urgency to fill up the post, order dated 04.01.2014 was issued directing that pending finalization of service rules post of Sub-Inspector of Schools under the Elementary Education Department should be filled up by WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 35 of 48 direct recruitment from amongst Assistant Teachers of provincialised/Government schools having B.Ed. degree with 5 years of service experience. It was also directed that upper age limit should not exceed 40 years and the selection should be confined to Assistant Teachers of provincialised/Government schools drawing pay scale of Rs. 5200-20,200 (PB-2) plus Grade Pay of Rs. 3300. Constitution of Selection Committee and the mode of awarding marks were also specified.
22.1. In the meanwhile, Director of Elementary Education published the advertisement on 10.01.2014 which was not in tune with the above order dated 04.01.2014. This necessitated issuance of the corrigendum dated 18.01.2014.
22.2. It is further stated that since no recruitment rules were framed or finalized for the post of Sub-Inspector of Schools, Govt. of Assam notified the procedure as above. The order was issued under Article 309 of the Constitution of India.
22.3. Proceeding further, the then Secretary to the Govt. of Assam, Elementary Education Department has stated that the post of Sub-Inspector of Schools is a supervisory post under the Elementary Education Department, Govt. of Assam in respect of Lower Primary and Upper Primary Schools. Government had taken a conscious decision to limit the eligibility to Assistant Teachers drawing the above pay scale of Rs. 5200-20,200 (PB-2) plus Grade Pay of Rs. 3300, which is also the graduate scale of pay to enable Assistant Teachers of High Schools, Head Masters and Science Teachers of Upper Primary Schools to apply for the post of Sub-Inspector of Schools. Justifying the classification of Assistant Teachers into those drawing the above pay scale and those drawing lesser than the above pay scale, it is stated that the teachers belonging to the former group regularly handle students of Class-XI and above and thus have experience in handling higher classes. The post of Sub-Inspector WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 36 of 48 of Schools being supervisory in nature, such teachers would be better suited to perform the task assigned to them as Sub-Inspector of Schools. Therefore, the classification is rational and based on an intelligible differentia. Corrigendum dated 18.01.2014 was issued on the basis of the Government notification dated 04.01.2014 and unless legality of the Government notification dated 04.01.2014 is challenged, it would not be open to anyone to challenge the corrigendum dated 18.01.2014 which is in terms of the Government notification dated 04.01.2014.
23. In WP(C) No. 1658/2011 an application has been filed by the petitioners to bring on record Government notification dated 19.03.1951 dealing with recruitment to the post of Sub-Inspector of Schools which has been registered as IA(C) No. 1225/2016. As a matter of fact, Mr. D. Saikia, learned Sr. Addl. Advocate General in the course of his submissions referred to this document brought on record through this interlocutory application.
23.1. This document has been annexed as Annexure-E to the interlocutory application and is an extract of the proceedings of the Govt. of Assam in the Education Department dated 19.03.1951. With a view to remove the disparity in matters of promotion between the officers of teaching line and inspecting line of Assam School Service as well as for re-organization of Assam School Service, it was resolved that for the purpose of promotion officers of the inspecting line and those of the teaching line would be treated as two separate units; there would be no direct recruitment to the post of Sub- Inspector of Schools in Class-II of the Assam School Service; appointments would be made exclusively from amongst officers having minimum of 5 years of teaching experience either in Government school or in some recognized school with preference to those possessing BT degree; no teacher would be appointed as Sub-Inspector of Schools if he puts in teaching experience of more than 10 years; Sub-Inspector of Schools would be shown as a separate WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 37 of 48 sub-group in the list of officers of Class-II Assam School Service and their inter se seniority within that sub-group would be fixed as per date of joining; Sub- Inspector of Schools would be the feeder post for promotion to the post of Deputy Inspector of Schools in Class-I of Assam School Service.
24. An affidavit has been filed by respondent Nos. 35 & 37 i.e. two of the selected candidates in WP(C) No. 1698/2011 justifying their selection and further stating that pursuant to their selection they were appointed and are presently serving as Sub-Inspector of Schools.
25. Submissions made by learned counsel for the parties have been considered.
26. Before addressing the grievance expressed by the petitioners and the response thereto by the State, it would be apposite to first examine the post of Sub-Inspector of Schools and the legal framework dealing with the said post.
27. As noticed above, as per resolution of the Education Department, Govt. of Assam dated 19.03.1951, in order to rationalize promotional avenues between officers belonging to teaching line and non- teaching line of Assam School Service, it was resolved to treat officers belonging to teaching line and inspecting line as two separate units. Though not expressly stated it was implicit that the post of Sub-Inspector of Schools belonged to the inspecting line. Resolution dated 19.03.1951 mentioned that post of Sub-Inspector of Schools was placed in Class-II of Assam School Service and that the said post should be filled up by teachers serving in Government schools or in re-cognized schools having service experience between 5 years and 10 years with preference to those possessing BT degree with the clarification that there would be no direct recruitment to the post of Sub- Inspector of Schools. Sub-Inspector of Schools were to be shown as a separate WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 38 of 48 sub-group of officers in Class-II Assam School Service and their seniority to be maintained within the sub-group as per dates of appointment. It was also mentioned that Sub-Inspector of Schools would be the feeder post for promotion to the post of Deputy Inspector of Schools in Class-I Assam School Service.
28. From this document dated 19.03.1951, it is seen that by a resolution it was decided to make the post of Sub-Inspector of Schools a separate unit of Assam School Service belonging to the inspecting line to be filled up from amongst teachers having the prescribed qualification and that from the post of Sub-Inspector of Schools, which was in Class-II of Assam School Service, there would be promotion to the post of Deputy Inspector of Schools in Class-I of Assam School Service.
29. In exercise of powers conferred by the proviso to Article 309 of the Constitution of India, Assam Education Service Rules, 1982 (1982 Rules) were framed to regulate recruitment and conditions of service of persons appointed to the Assam Education Service. As per Rule 3(I), Assam Education Service consists of Class-I and Class-II. While Class-I comprises of cadres from Director of Public Instruction in descending order up to the cadre of Assistant Inspector of Schools/Vigyan Mandir Officer, Class-II comprises of the cadres of Lecturers of various colleges/institutes and Deputy Inspector of Schools/District Social Education Officer. As per Rule 3(2)(i), Assam Education Service may also include any post equivalent to a post in any of the cadres mentioned in Sub-Rule (1) and as per Rule 3(2)(ii), any cadre or post declared by the Government to be a cadre of the Service i.e., Assam Education Service.
29.1. From a careful analysis of Rule 3, it does not appear that Sub- Inspector of Schools is a cadre post within the Assam Education Service. There is nothing on record, to show any declaration made by the Government declaring the post of Sub-Inspector of Schools to be a cadre post of Assam WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 39 of 48 Education Service. It would be further clear from the affidavits filed on behalf of the State as alluded to herein above, that there has been no declaration by the State Government to include the post of Sub-Inspector of Schools in the Assam Education Service as a distinct and separate cadre.
29.2 Rule 4 mentions that strength of each cadre in the Service shall be such as determined by the Government from time to time. Schedule 1 to the 1982 Rules mentions the strength of the cadres on the date of commencement of the 1982 Rules. Since Sub-Inspector of Schools is not a cadre post under the 1982 Rules, question of providing or mentioning the strength of the cadre or number of posts of Sub-Inspector of Schools did not arise.
29.3 While Sub Rule (1) of Rule 5 deals with direct recruitment to the posts mentioned therein, Sub-Rule (2) provides for promotion to the posts mentioned therein including the post of Deputy Inspector of Schools. It says that recruitment to the post of Deputy Inspector of Schools shall be made by promotion in the manner prescribed in Rule 11. Rule 11 deals with recruitment by promotion. Rule 11(h) provides that post of Deputy Inspector of Schools/Addl. Deputy Inspector of Schools and District School Education Officer shall be filled up from the select list of Sub-Inspector of Schools having 7 years experience. Thus, it is only in Rule 11 (h) that for the first time there is mention about the post of Sub-Inspector of Schools though it is not mentioned as a post or cadre included in Assam Education Service under Rule
3. Moreover, as already noticed above, there is nothing on record to show exercise of power by the State Government under Rule 3 (2)(ii) declaring the post of Sub-Inspector of Schools as a distinct and separate cadre of Assam Education Service. Having noticed the above, it may be stated that as per Rule 11 (h) the post of Deputy Inspector of Schools is to be filled up by way of promotion from a select list of Sub-Inspector of Schools having 7 years of WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 40 of 48 experience. This would mean that post of Sub-Inspector of Schools is the feeder post for the promotional post of Deputy Inspector of Schools. This was also the position as per the resolution dated 19.03.1951.
29.4. As per Rule 24, a gradation list of the members of the Assam Education Service shall be published cadre wise every year.
29.5. Schedule 1 provides for the strength of each cadre of the Assam Education Service. As has already been discussed above, since the post of Sub- Inspector of Schools is not a cadre belonging to the Assam Education Service, it finds no mention in Schedule-I. Schedule-II lays down the qualification for recruitment to various posts but the post of Sub-Inspector of Schools is not mentioned except while prescribing the eligibility requirement of Assistant Inspector of Schools which is a cadre belonging to Class-I of Assam Education Service. One of the eligibility requirements for promotion to the post of Assistant Inspector of Schools is to have 2 years experience as Sub-Inspector of Schools.
30. Thus the picture which emerges from a conjoint reading of the resolution dated 19.03.1951 and provisions of the 1982 Rules is extremely hazy and confusing. While the resolution dated 19.03.1951 talked about Assam School Service, the 1982 Rules talks about Assam Education Service. The resolution dated 19.03.1951 mentioned the post of Sub-Inspector of Schools as belonging to the Class-II of Assam School Service being the feeder post for promotion to the next higher post of Deputy Inspector of Schools in Class-I of Assam School Service. While prescribing the mode of recruitment, the number of posts of Sub-Inspector of Schools was not mentioned. It was stated that Sub-Inspector of Schools would be treated as a separate unit for the purpose of promotion. However, in the 1982 Rules, though the post of Sub-Inspector of Schools has been made the feeder post for the promotional post of Deputy Inspector of Schools in Class-II of the Assam Education Service, the post of WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 41 of 48 Sub-Inspector of Schools is not encadred within the Assam Education Service under Rule 3 of the 1982 Rules. Since it is not encadred, question of fixation of cadre strength of Sub-Inspector of Schools does not arise. The 1982 Rules is also totally silent regarding recruitment to the post of Sub-Inspector of Schools which is quite natural since there is no existence of the post of Sub-Inspector of Schools under the 1982 Rules as a distinct cadre though Rule 11(h) recognizes the post of Sub-Inspector of Schools as the feeder post for promotion to the posts of Deputy Inspector of Schools/Addl. Deputy Inspector of Schools and District School Education Officer. Lastly, what has come to the fore is that the resolution dated 19.03.1951 would no longer hold the field as the 1982 Rules which is framed in exercise of powers under the proviso to Article 309 of the Constitution of India, has come into force and has taken over the field. As already discussed above, the 1982 Rules do not acknowledge the post of Sub-Inspector of Schools as a separate cadre belonging to the Assam Education Service though it is mentioned as a feeder post for promotion to the post of Deputy Inspector of Schools/Addl. Deputy Inspector of Schools and District School Education Officer.
31. The State in its affidavit filed on 17.12.2014 in WP(C) No. 3037/2014 has admitted that there are no rules or administrative guidelines prescribing the mode or method of recruitment to the post of Sub-Inspector of Schools. There is no rule or office memorandum either providing for Assam School Service or placing the post of Sub-Inspector of Schools in Class-II (Inspecting) of such Assam School Service. Interestingly enough, following acceptance of the recommendations of the Assam Pay Commission, 2008, the Assam Services (Revision of Pay) Rules, 2010 was framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. In the Schedule appended to the said Rules providing for department wise revised pay structure, post of Sub-Inspector of Schools has been mentioned as belonging to Assam School Service (Junior) Class-II in the pay band PB-2 WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 42 of 48 Rs.5200-20,200 with Grade Pay 2800 as per revised pay structure! As discussed above, the Assam School Service is not traceable to any rule, statutory or non-statutory, or even to any administrative instructions.
32. Having noticed the above, notification dated 04.01.2014 of the Govt. of Assam in the Elementary Education Department may now be examined. As per this notification, post of Sub-Inspector of Schools under Elementary Education Department shall be filled up by direct recruitment from amongst Assistant Teachers of provincialised/Government schools with B.Ed. degree having 5 years of experience and not exceeding 40 years of age on the first day of January of the year of selection, relaxable for SC & ST candidates; to be eligible, the Assistant Teachers must also draw pay scale of Rs. 5200- 20,200(PB-2) plus Grade Pay of Rs. 3300. It also provides for constitution of a Selection Committee with the senior most Secretary to the Govt. of Assam in the Elementary Education Department or his nominee as the Chairman and Director of Elementary Education as the Member Secretary.
33. Question for consideration is when the post of Sub-Inspector of Schools is not a cadre post under the 1982 Rules framed under the proviso to Article 309 of the Constitution though its existence is acknowledged as the feeder post for promotion to the posts of Deputy Inspector of Schools/Addl. Deputy Inspector of Schools and District School Education Officer, can recruitment to such a post be made on the basis of an administrative notification? As discussed above, from the affidavits filed on behalf of the State it is quite evident that no notification has been issued by the State under Rule 3(2)(ii) of the 1982 Rules declaring the post of Sub-Inspector of Schools to be a cadre of the Assam Education Service. Neither the post of Sub- Inspector of Schools nor the Assam School Service have any legal existence. If that be so, notification dated 04.01.2014 would not empower the State to conduct recruitment to such a post. The post must be a cadre belonging to the WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 43 of 48 Assam Education Service, the recruitment and conditions of service of persons appointed to which is governed by the 1982 Rules; such a rule can be replaced by a statutory rule or amended by a rule framed under the proviso to Article 309 of the Constitution or if there is any gap in such rule, to fill up the gaps recourse can be had through administrative guidelines. But that is not the case here.
34. In a writ petition, where the subject matter was relating to holding of charge of the office of Block Elementary Education Officer under the Elementary Education Department, Govt. of Assam, being WP(C) No. 6488/2016 (Hari Prasad Das Vs State of Assam) disposed of on 19.01.2017, this Court had examined the 1982 Rules and held that Sub-Inspectors of Schools and Block Elementary Education Officers are not cadre posts under the 1982 Rules. In fact, in that case Court came to the conclusion that there is no legal sanction to the post of Block Elementary Education Officer, not to speak of promotion to or from the said post. Since there is no existence of the post of Block Elementary Education Officer under the 1982 Rules, question of prescribing any eligibility criteria for holding such post does not arise. Observing that there cannot be promotion to a post or holding of such post on In-charge basis which does not exist, since the post of Block Elementary Education Officer is not sanctioned by any law, question of filling up such post either on temporary basis or on regular basis may not arise. The matter was remanded to the Addl. Chief Secretary to the Govt. of Assam, In-charge of Education to look into the apparent anomaly and thereafter to take appropriate remedial measures after consultation with all the stake holders. While so remanding the matter, it was observed that there are over 100 posts of Block Elementary Education Officers in the State of Assam drawing handsome salary thereby impacting the State exchequer in a significant way which is a matter of serious concern and requires immediate attention.
WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 44 of 48
35. Like the post of Block Elementary Education Officer, the post of Sub-Inspector of Schools has no legal sanction. Despite this, as per affidavit filed by the Director of Elementary Education, Assam on 25.05.2016 in WP(C) No. 546/2014, there are a total of 274 posts of Sub-Inspector of Schools and more than 250 of such posts have been filled up. As noticed above, the post of Sub-Inspector of Schools carries a hefty pay-scale. Therefore, there is significant budgetary implication vis-à-vis the post of Sub-Inspector of Schools which is a matter of serious concern and needs the immediate attention of the Elementary Education Department.
36. In the present batch of cases, two selection processes for appointment to the post of Sub-Inspector of Schools are under challenge; one pursuant to the advertisement dated 02.10.2005 culminating in the select list dated 01.03.2011 and the second pursuant to the advertisement dated 10.01.2014 as modified by the corrigendum dated 18.01.2014 which culminated in the select list dated 24.07.2015.
37. When the post of Sub-Inspector of Schools has no sanction of law, question of filling up the said post would not arise. As noticed above, it is not a cadre post under Rule 3 of the 1982 Rules and no Government notification has been issued to declare it as a cadre of the Assam Education Service. Viewed in that context, the selection processes initiated pursuant to the advertisements dated 02.10.2005 and 10.01.2014 has no legal sanctity.
38. That apart, in so far the first selection process is concerned, independent of the above, certain additional issues have come on record which would render the same legally unsustainable. Even without entering into the question as to whether the selection process was vitiated on account of the select list being prepared by a different Selection Committee which had not interviewed the candidates, and that too 5 years after the interview, which certainly raises a serious question mark about the validity of the WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 45 of 48 selection, there are other fundamental flaws which strike at the core of the selection process. As per minutes of the Selection Committee meeting held on 17.02.2011 a list of 81 candidates was prepared category wise and on the basis of the same, provisional select list dated 01.03.2011 was published. It has now come on record, rather it is the stand of the State that appointments were made on 23.02.2011. In other words, appointments were made before publication of the select list, that too provisional. Even if the provisional select list dated 01.03.2011 is construed to be the final select list, then also it would not improve the situation as appointments were made prior to publication of the select list. This would mean that somebody had tipped off the short-listed candidates that their names would appear in the select list but before publication of the select list appointment orders were issued. It amounts to putting the cart before the horse. It is an elementary principle that appointments would follow selection and not the other way around. This fundamental discrepancy makes the appointments wholly untenable because on the date of the appointments there was no select list.
39. It has already been discussed above that the post of Sub- Inspector of Schools is not a cadre post under the 1982 Rules. Therefore, there is no and there cannot be any cadre strength of the post of Sub-Inspector of Schools. Vertical reservation meant for socially disadvantaged groups, such as, SC, ST and OBC is post based. Therefore, the percentage of reservation for such groups would have to be worked out on the strength of the cadre. In the absence of cadre strength, the percentage of post based reservation cannot be worked out. On the other hand, horizontal reservation for physically handicapped (PH) is vacancy based but in the advertisement dated 02.10.2005 as well as in the provisional select list dated 01.03.2011 it is seen that reservation for PH candidates was in addition to the other reserve categories and not within the respective categories as if this was also part of vertical reservation. This has also vitiated the select list. Moreover, the WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 46 of 48 provisions of the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 which provides for 30% reservation for women candidates as horizontal reservation was not complied with rendering such selection process untenable. Preamble to the aforesaid Act mentions that women in the State of Assam are socially, educationally and economically backward and are not adequately represented in the services and posts within the State of Assam. Therefore, the aforesaid Act was enacted to provide for reservation of vacancies in services and posts for women in the State of Assam. While Section 4 provides for 30% reservation for women against vacancies with the clarification that such reservation would be horizontal, Section 6 provides for imposition of penalty in the event of contravention of Section 4. This clearly reflects the mandatory nature of such reservation. There is one more aspect that cannot be overlooked. The advertisement dated 02.10.2005 and the select list dated 01.03.2011 provides for reservation of 7 posts on the basis of language and 14 posts for Tea and Ex-Tea garden community. There is no provision for such reservation under any law in the State of Assam. This has resulted in a totally lopsided, skewed and distorted selection process. In the process, the percentage of reservation exceeded 50%. Therefore the selection process pursuant to the advertisement dated 02.10.2005 and the select list dated 01.03.2011 suffer from such fundamental flaws rendering the same wholly untenable and legally unsustainable. When such glaring anomalies are starring at the face, question of non-suiting the petitioners on the ground of being unsuccessful candidates would not arise. It is true that annulment of the selection process would appear harsh but I am afraid there is no way the completely flawed selection can be served.
40. Consequently, the selection process pursuant to advertisement dated 02.10.2005, appointments made to the post of Sub-Inspector of Schools following such selection and the select list dated 01.03.2011 are set aside and quashed. Elementary Education Department, Government of Assam shall now WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 47 of 48 issue individual termination orders to the candidates appointed to the post of Sub-Inspector of Schools pursuant to the advertisement dated 02.10.2005.
41. In so far the selection process pursuant to the advertisement dated 10.01.2014 and the select list dated 24.07.2015 are concerned, Court is of the view that the additional grounds urged assailing the validity of the same, do not make out a case for annulment of the selection process, though as held above, the post of Sub-Inspector of Schools has got no legal sanction, Therefore, having regard to the discussions made in paragraphs 30 to 35 above and in the light of the view taken in Hari Prasad Das (supra) the matter is remanded to the Additional Chief Secretary to the Government of Assam in charge of Education to take an appropriate decision after consultation with all the stake holders within a period of 3 (three) months from the date of receipt of a copy of this order. Till such decision is taken, there shall be no further appointment to the post of Sub-Inspector of Schools.
42. All the writ petitions are accordingly disposed of but without any order as to cost.
JUDGE Aparna WP(C) Nos. 5975, 4760, 546, 522, 5639 & 3037/2014 WP(C) Nos. 1658 & 1698/2011, WP(C) Nos. 5593, 4813, 4651, 4184, 4332, 784, 4261, 6939 & 5938/2015 Page 48 of 48