Gauhati High Court
Ash Bahadur Chetri And Ors. vs State Of Assam And Ors. on 1 November, 2006
Equivalent citations: 2007(2)GLT691
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT Amitava Roy, J.
1. Both these appeals though register a challenge to two different decisions in the related writ proceedings, the parties are same and in view of the affinity in the issues raised, were analogously heard and are being disposed of by this common judgment and order.
2. We have heard Mr. P. Mahanta, learned Counsel for the appellants and Mr. A.K. Goswami, Sr. Advocate, assisted by Ms. B. Sharma, Advocate for the Karbi Anglong Autonomous Council, Diphu (hereafter referred to as the Council).
3. The pleaded versions of the parties have to be noticed at the threshold to properly evaluate the arguments advanced. According to the appellants, they having come to learn about existing vacancies in various posts of Assistant Teachers in several schools of Karbi Anglong district within the jurisdiction of the Council, applied for appointment thereto. In terms of the Resolution No. 3 dated 10.10.2000 adopted by the then Executive Committee of the Council, they, following a scrutiny of their testimonials were appointed as Assistant Teachers initially on adhoc basis for a period of four months in different schools on various dates against regular sanctioned posts. The initial terms of their appointment were thereafter extended from time to time on different dates and consequently they continued in service without any break. The appellants have maintained that with regard to the issues pertaining to selection, appointment, transfer, promotion and regularization of services of teachers in the Department of Education within the jurisdiction of the Council, it (Council) is vested with the exclusive authority to make appointments in the post of Assistant Teachers in L.P./M.E./M.V./High School/Higher Secondary Schools located within its administrative territory. For such recruitment, a jurisdictional Inspector of Schools, upon receiving applications from the intending candidates use to prepare a list of the applicants and forward the same to the Secretary (T), I/C Education, Karbi Anglong Autonomous Council who in turn forwarded the same with all supporting documents to the Executive Member to select the candidates. On the approval of the names of the selectees, the Inspector of Schools, Karbi Anglong, used to issue appointment orders in terms of the directions issued by the Secretary (T), I/C Education. According to the appellants, their appointments were made following the said procedure. Though they had been appointed as above during November/December, 2000, and meanwhile their terms were extended from time to time, the Council Authorities did not pass any further order of extension from February, 2002. The appellants' applications for extension of their services also remained unheeded. In this premise, the appellants approached this Court with W.P.(C) 3141/2002 and W.P.(C) 3192/2002 praying for an appropriate writ declaring them to be in service as well as for disbursement of their salary. This Court by order dated 17.5.2002 while issuing notice of motion as an interim measure directed the respondent Council not to replace the appellants by adhoc employees. Their salary, both arrear and current, was also directed to be released.
4. On the same date, the Executive Committee of the Council passed a resolution in its meeting held on 17.05.2002 annulling the services of the adhoc teachers in L.P./M.E./High School/Higher Secondary Schools and resolved to discontinue their engagement forthwith and further resolved to hold interview immediately revoking the earlier Executive Committee Resolution No. 3 dated 10.10.2000. Situated thus and apprehending ouster from service, the appellants sought to invoke the writ jurisdiction of this Court in WP(C) 3514/2002. This Court by order dated 28.05.2002 while issuing notice of motion, in the interim directed the respondent Council to permit the appellants to continue on adhoc basis till regular selection and appointment of teachers against their posts.
5. It was thereafter that by an advertisement in the issue dated 09.09.2002 in the weekly "Pahari Doot" applications were invited for filing up the posts of Subject Teachers (Economics), Graduate Teachers (Science Teacher), Hindi Teachers (Senior), Classical Teachers (Sanskrit), Instructor for Hindi Training Centre, Intermediate Teacher (Science/Arts), Hindi Teachers (Junior) and Lower Division Assistants in different M.E./M.V./High and Higher Secondary Schools under the Council. In terms of the advertisement, the adhoc appointees being eligible to apply, the appellants offered their candidature and participated in the process along with others. They were in due course called for the written examination to be held on 01.02.2003. The grievance of the appellant is that though the selection was held for appointment to different posts for which varying qualifications had been prescribed, no separate question papers were drawn up relevant for the disciplines and the academic qualifications insisted upon. Whereas the Graduate candidates irrespective of their disciplines were required to write the paper of 150 marks in three hours, the intermediate teachers (Science and Arts) and Hindi Teachers (Junior) were asked to answer the same question paper carrying 100 marks in two hours. According to the Appellants, they were seriously prejudiced by the identicalness of the questions so much so that some of them returned the question papers being under the impression that those had been wrongly distributed. While they waited in expectation to be called for the viva-voce, they came across a list of successful candidates published on 30.06.2003 to be called for interview. As their names did not figure therein, being aggrieved, they approached this Court with WP(C) 5178/03, WP(C)6198/03 and WP(C) 5915/03 assailing the select list and praying for the repudiation thereof with a liberty to them to participate in the interview. By the order dated 18.07.2003, this Court while issuing rule refused to issue any interim direction as prayed for interdicting the process observing that appointment of any candidate pursuant to the selection would be subject to the result of the writ petition. The respondent Council in its counter in WP(C) 3141/02 denied the appellants' claim of having been selected as teachers as per the provision of the extant rules and the prevailing norms for filling up government vacancies in the Karbi Anglong District. They asserted that the appellants were appointed temporarily on adhoc basis without any advertisement/notification of the vacancies/interview and selection. According to them, they were initially appointed for a period of four months and though their terms were extended thereafter from time to time eventually it was not done any further. They maintained that the Council was duty bound to fill up the regular vacancies in the District following the provisions of law and the relevant rules after appropriately notifying the same and holding regular selection.
6. In reply to the impugnment against the resolution dated 17.05.2002 in WP(C) 3514/02, the Council categorically denied that the same was illegal, malafide or prompted by any extraneous consideration. Its stand visa-vis the necessity of filling up the existing vacancies through a regular selection was reiterated. In response to the pleaded contentions in WP(C) 5178/03, the respondent Council clarified that in terms of the advertisement dated 09.09.2002, the appellants had voluntarily participated in the resultant process and had appeared in the written examination held on 01.03.2003. It also referred to a letter dated 06.08.2002 of the Joint Secretary, Government of Assam, Education Department, addressed to the Principal Secretary, Karbi Anglong Autonomous Council, requesting the latter to advertise the vacancies for filling up the same through a selection process contemplated in law. The Council pleaded that there were basically two categories of posts namely of Graduate and Intermediate Teachers. Whereas total marks for written examination for Graduate posts was 150, 50 were reduced for the intermediate posts. They insisted that the questions framed primarily were to test the general awareness of the candidates on issues pertaining to the District, State and Country. The appellants wrote the test without any demur and approached this Court after the publication of the results when they found themselves to be unsuccessful in their attempt. The Council asserted that out of the 48 adhoc appointees before this Court, 11 had only failed in the written examination. It sought to justify its action of short listing the candidates for the interview on the ground that the Board constituted by the Council and conducting the selection had prescribed 50% and 40% marks for the general candidates and Scheduled Caste candidates as cut off marks in the written examination to be eligible for the interview.
7. The learned Single Judge by the judgment and order dated 27.03.2003 disposing of WP(C) 3141/2002 and WP(C) 3514/02 repelled the appellant's contention that they had been treated differently from the candidates to be inducted by a regular recruitment process, they having in the meantime been appointed on adhoc basis observing that any distinction so made would be repugnant to the equality clause of the Constitution. However, noticing the plea that in the meantime some of the appellants might have become over aged, the Council was directed to condone the said disqualification while examining their candidature for regular selection. Direction was also issued to extend due weightage to them in case their service record bore testimony of any excellent performance. The interim order was permitted to continue till the newly recruited persons joined the posts. Being aggrieved, the appellants preferred WA 303/03.
8. By the other judgment and order dated 19.02.2005 impugned in WA 123/04 passed in WP(C) 5178/03, WP(C) 6198/03 and WP(C) 5995/03 the writ petitions have been dismissed granting liberty to the respondent Council to take appropriate steps in the matter of appointment pursuant to the selection. The learned Single Judge negatived the contention that the omission to mention the number of posts in the advertisement had a vitiating effect on the exercise. Noticing the number of vacancies set out in the Council's affidavit, it was, however, directed to confine the appointments thereto. On a perusal of the common question paper in course of the arguments, the learned Single Judge recorded that the same pertained to General Knowledge regarding Geography of the Karbi Anglong District and relevant facets of education, Constitution of India etc and concluded that having regard to the post to which appointments were to be made, no illegality or infirmity could be attributed. It was held that in absence of any rule for the recruitment, the prescription of the common written test could not be condemned as illegal or unwarranted. The fact that the appellants were not selected before being inducted on adhoc basis was also noticed. Being dissatisfied with the determination as above, the appellants approached this Court with WA 123/04 in which by order dated 06.04.2004 while admitting the appeal a direction was issued to the parties to maintain status quo as on date. On the strength thereof, the appellants continue on adhoc basis. The Council in its wisdom as well has not furthered the process of selection. Hence no appointment on the basis of the impugned process has yet been made.
9. The complete the narration, it would be essential to refer to the pleaded facts in WP(C) 1124/06. It has been inter alia contended therein by the appellants that after the passing of the order dated 06.04.2004 in WA 123/04, the Council in violation of the order of status quo between January, 2004 to December, 2004, has appointed 250 Assistant Teachers in different schools without any selection but adhering to the procedure in terms of the resolution dated 10 10.2000. The appellants, therefore, impugned the above appointments praying for the cancellation thereof. The Council in its affidavit has pleaded that the posts to which such appointments have been made are beyond the purview of the process for which the selection had been held and that the temporary arrangement had to be resorted to in the academic interest of the students. As the writ petition is pending for final disposal and is not on board before us, we refrain from making any comment on the above pleas.
10. Mr. Mahanta has strenuously urged that the Executive Committee of the Council, a high power body having by its resolution dated 10.10.2000 decided to appoint teachers on adhoc basis to be regularized in due course, the appellants have an unassailable right to be regularized and, therefore, the impugned resolution dated 17.05.2002 is ex-facie illegal, arbitrary and discriminatory and is liable to be adjudged as such. The learned Counsel has maintained that the shift in the Council's disposition to the issue is an upshot of the change of guards and is not impelled by any relevant consideration. On that count as well, the impugned resolution is liable to be struck down. The procedure consistently followed by the Council being one in accord with the resolution dated 10.10.2000, the decision to resort to a process of selection is on the face of the records unwarranted. In any view of the matter, according to Mr. Mahanta, the resolution dated 10.10.2002 having held the field over the years and being in conformity with the course followed through out by the Council, withdrawal therefrom cannot be countenanced in law. He reiterated that the omission on the part of the Council to spell out the number of posts advertised had a vitiating effect on the process and on that count alone the same is liable to be adjudged nonest in law. As the advertisement did not indicate the procedure to be adhered to for selecting the candidates, the process lacks transparency. The appointments being proposed to be made to public posts, the above deficiency has a nullifying effect and on that count as well the same is liable to be declared invalid. Mr. Mahanta was critical on the commonness of the questions required to be answered by the various categories of teachers. According to him, as the candidates including the appellants belonged to different streams like Arts, Science, Sanskrit etc. the questions set in the written examination could not have provided an uniform yardstick for the evaluation of their performance. The advertisement not having indicated any cut off mark to be scored by a candidate in the written examination, the select list dated 30.06.2002 short listing them is manifestly illegal. In all, according to him, the selection process is fraught with incurable infirmities. He contended that the learned Single Judge failed to consider the above aspects of the matter and, therefore, the impugned judgments and orders being unsustainable in law merit interference in the appeals. Mr. Mahanta further urged that the appointments of 250 teachers following the procedure followed earlier demonstrate that the initiation of the recruitment process through the advertisement is to meet some collateral objective. In support of his submissions Mr. Mahanta has placed reliance on the decision of the Apex Court in Lila Dhar v. State of Rajasthan and Ors. .
11. Mr. Goswami per contra has argued that the appellants not having been selected before being appointed on adhoc basis they have no indefeasible right in law to claim regularization in service. There being no semblance of selection preceding their induction as above, their challenge to the resolution dated 17.05.2002 is palpably flawed and untenable. It being within the dominion of the Council to devise any procedure in accordance with the constitutional imperatives for appointments to public posts, the contention to the contrary is per se unsound. Moreover, the appellants having participated in the selection process they are estopped in law in impugning the decision contained in the resolution dated 17.05.2002. According to Mr. Goswami, the appellants having sat in the written examination without any complaint, their turn around only after being adjudged unsuccessful betrays lack of bonafide on their part. Referring to the question papers to be answered by the candidates, the learned Sr. Counsel argued that the topics pertained to general knowledge and awareness. No attempt was made to include questions requiring specialization in any particular discipline for attempting to answer the same. The learned Counsel submitted that the questions had a bearing on the basics of the current affairs expected to be known by the candidates. According to him, in all, 101 posts were sought to be filled up and that a mere omission to specify the same in the advertisement is wholly inconsequential. The Executive Member, In-charge Education, was Chairman of the Selection Board and the said Body having decided to prescribe 50% and 40% marks for the general as well as reserved category candidates to be eligible to be called for the interview, no fault can be found with the select list. The ultimate objective of the pursuit being to select the most meritorious and suitable candidates, absence of any indication in the advertisement outlining the minutest details of the process of evaluation does not in any way detract from the validity of the process, he urged. Mr. Goswami pressed into service the decision of the Apex Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. .
12. We have closely evaluated the rival submissions. As the root of the lingering controversy lies in the resolution dated 10.10.2000 of the Executive Committee of the Council we propose to initiate the adjudicative exercise therefrom. A bare perusal of the said resolution reveals that it was resolved therein that a vacant post in the department of Education might be filled on adhoc basis against death/retirement/transfer/medical/deputation vacancies. This was by way of review of the earlier resolution dated 29.08.2000 prescribing interview for filling up of posts. Admittedly pursuant thereto, the appellants had submitted their candidature and were eventually appointed on adhoc basis initially for a period of four months. From the pleaded facts, it is explicit that neither the said posts had been advertised for participation of eligible candidates nor any selection was held before inducting the appellants. The nature of appointments and the limited term thereof unequivocally demonstrate the casualness of the recruitment. Though the initial term of four months was extended thereafter, on a few occasions, admittedly from February, 2002, no further extension was granted. The appellants were thus provided with adhoc appointments without being made to undergo any process of competition for comparative assessment of their merit vis-a-vis the others. True it is that the above process was as in vogue at the relevant time. Be that as it may, in our considered opinion, the same cannot vest the appellant with any unassailable right to either continue in the said capacity or claim regularization dehors a selection process contemplated in law. Noticeably, they were not accorded extension beyond two years of service though as on date they continue on the strength of the interim order passed in WA 123/2004.
13. Before parting with this issue, we feel it expedient to refer to the decision of the Apex Court in Secretary, State of Karnataka and Ors. v. Uma Devi and Ors. (supra), authoritatively dealing with the above aspect of the debate. In essence, the issue raised therein was whether persons engaged in public posts on temporary basis and continuing for long would thus automatically be regularized in service though their appointments are not preceded by a selection in compliance of a process informed with constitutional mandates. Emphatically answering in the negative, the Apex Court underlined the essentiality of meticulous adherence to the constitutional prescripts for recruitment in public employment and in no uncertain terms discountenanced the directions issued from time to time by Courts on equitable considerations for regularization of the services of such employees. It ruled that merely because a temporary employee or a casual worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service and or made permanent, on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It observed that it was not open for the Courts to prevent regular appointment at the instance of temporary employees who by the very nature of their appointment do not acquire any right. Indicating the constraints on the exercise of powers under the Article 226 of the Constitution, it declared that such a jurisdiction was not intended to be used for a purpose to defeat the concept of social justice and equal opportunity for all, in the matter of public employment as recognized by our constitution. It held the view that passing of orders for retention of such temporary employees would tend to defeat the very constitutional scheme of public employment and that no order in exercise of powers under Article 226 ought to be issued directing absorption/regularization or permanent continuance of such inductees unless their recruitment was made regularly and in terms of the constitutional scheme. It reiterated the well-settled view that recruitment dehors the rules for appointment did not confer any right on the appointees. While emphasizing that any public appointment has to be in terms of the Constitutional scheme and that a temporary employee appointed without following either the relevant rules or in compliance of the procedure in conformity with the constitutional edicts cannot claim to be made permanent on the expiry of his term of appointment, the Apex Court insisted on a regular process of recruitment for appointments against regular vacancies against post in public service and elucidated that regularization did not confer permanence and could not be construed to convey an idea of the nature of tenure of appointments. It held that the expression regularization was construed to mean to cure only such defects as are attributable to methodology followed in making the appointments. The Apex Court laid down that the executive, or for that matter the Court, in appropriate cases would have the right to regularize an appointment made only after following due procedure, even though the non fundamental element of that process or procedure has not been followed and that it (right) would not extend to direct that an appointment made in clear violation of the constitutional scheme, and or the statutory rules could be treated as permanent or can be directed to be treated as permanent.
14. The decision of the Apex Court in All Manipur Regular Posts Vacancies Substitute Teachers' Association v. State of Manipur , is clearly distinguishable on facts. In the particular fact situation involved therein, the Apex Court had laid down some guidelines. No ratio decidendi had been recorded contrary to the one contained in Secretary State of Karnataka, (supra). This decision does not advance the case of the appellants.
15. In view of the resounding judicial opinion as above and the contextual facts, we are of the unhesitant opinion that the appellant's plea of continuance in service and regularization is clearly untenable in law. This contention therefore fails.
16. There is no wrangle at the Bar that at all relevant times there was no rules prescribing the mode of appointments to the post of teachers in the Education Department in the schools located within the jurisdiction of the Council. As noticed herein above, the Council in its wisdom by the resolution dated 10.10.2000 had decided to fill up the vacant posts in the said institutions on adhoc basis and accordingly the appellants were appointed in the said capacity. The impugned resolution dated 17.05.2002 demonstrates that the Executive Committee of the Council had fresh deliberations on the issue and consciously decided to discontinue adhoc appointments and to hold interview for the purpose of filling up the posts. This apparently included the posts held by the appellants. Thereby the earlier resolution dated 10.10.2000 was also revoked. In absence of rules outlining the procedure for appointments to the said posts, the above resolution is in the form of a policy decision of the Council to be adhered to by all concerned. When challenged, this Court as well did not interdict the Council from furthering the process of selection initiated by the advertisement dated 09.09.2002 and the continuance of the appellants in their posts was subject to the completion of the process and appointments on the basis thereof. The Executive Committee being the highest administrative body in the Council and authorized to plan the conduct and administration of its affairs, we find no infirmity in the decision contained in the resolution dated 17.05.2002 more particularly as the course decided to be adopted for the purpose of appointment is in accord with the constitutional sanctions. The decision ensured participation of all eligible candidates for appointment to posts in public employment, an essentiality for valid recruitment thereto in terms of the constitutional scheme. The Executive Committee of the Council in our opinion was within its authority to decide the discontinuance of adhoc appointees and resort to the procedure of appointment through selection by revoking the earlier resolution dated 10.10.2000. The mere fact that the same procedure had been followed for quite a long time does not per se militate against the prerogative of the Committee to take such a decision, most importantly, it not being either against the rule of law or the constitutional stipulations. The materials on record do not disclose any irrelevant consideration to have prompted the above decision. No foundational fact is available to suggest any malafide on the part of the Council in taking the said decision. The underlying objective thereof being to ensure appointments in public posts by adopting the procedure informed with constitutional requirements, we do not see any cogent or formidable ground to disapprove the decision taken. The challenge to the resolution dated 17.05.2002 as well fails.
17. This takes us to the assailment of the selection process. The advertisement indubitably does not specify the number of posts for which the exercise had been launched. While it permitted the adhoc appointees also to participate in the drill, it did not indicate the procedure in details to be adhered to conduct the same. It only disclosed the category of posts, the academic qualifications, conditions of eligibility and the pay scales identified therefor. It, however, required that the candidates would have to appear in the interview as and when called for. The respondent Council in its counter in WP(C) 5178/03 has provided the break up of posts lying vacant at the time of advertisement as hereunder:
1. Graduate Assistant Teachers 33 2. Intermediate Assistant Teachers 44 3. Hindi (Junior) Teachers 17 4. Classical (Sanskrit) Teachers 2 5. Instructress 2 6. Hindi (Senior) Teachers 1 7. Subject Teachers (Economic) 1_________________________________________________ Total 100
18. Though the contention is that non-mentioning of the number of posts in the advertisement has a vitiating effect on the process, we are not inclined to uphold the same. We see no reason as to how this omission either had prejudiced the appellants or any candidate vying for appointment thereto or has invalidated the exercise. By this, we do not intend to convey that the authorities of the Council should not have specified the posts but absence thereof per se, according to us, does not render the process legally infirm.
19. The uncontroverted plea on behalf of the Council is that the Selection Board headed by the Executive Member, In-charge Education, had prescribed 50% and 40% marks for the general and reserved category candidates respectively in the written exam as the bottom line to be eligible to be called for the interview. We have been apprised that in all 3116 candidates had participated in the selection of which 747 were called for the interview and 639 infact had taken the same. True it is that the Council, could have delineated the procedure in details in the advertisement disclosing the cut off marks in the written examination to qualify a candidate to be called for the interview. However, having regard to the number of candidates applying for the post, it was logical on the part of the Council to shortlist them on the basis of their performance in the written examination and, therefore, the prescription of cut off marks. The Selection Board in its wisdom having decided to prescribe the marks as above, this Court is not expected to sit in appeal thereon. The decision is informed with value judgment and in absence of adequate materials on record, this Court is ill equipped to discountenance the same. We are of the view in the above premise the absence of indication of cut off marks in the advertisement ipso facto does not afflict the process with any illegality. It is not the contention of the appellants that candidates whose performance in the written examination was inferior to them had been called for the interview and that therefore they had been discriminated against. Understandably, the eligibility for being called for the interview would be contingent on the performance of a candidate in the written examination. The decision to shortlist the candidates when they are in large numbers is well within the acknowledged domain of the administrative authority concerned. We, therefore, do not find any convincing reason to adjudge the selection process as invalid on the above count. The decision of the Apex Court in Lila Dhar v. State of Rajasthan, (supra), deals with the weightage to be extended to interviews in a selection process. It had been held therein that the mode of awarding marks is an administrative function with which the Courts normally should not interfere. This decision is of no assistance to the appellants.
20. The plea of resemblance of the questions both for the graduate as well as intermediate teachers, as a vitiating factor, also does not appeal to us. On a bare perusal of the questions papers produced in course of the arguments, we are of the view that those had been framed to test the general knowledge and the level of awareness of the candidates on subjects and topics of contemporary relevance not requiring specialization in any particular discipline to answer the same. Considering the fact that the appellants were serving teachers in schools with a role to impart education to students, they were expected to be abreast with the topics on which the questions had been made. Apart from the fact that it is the prerogative of the administrative authority concerned to prescribe the norms on which the competing candidates are sought to be evaluated and that they (candidates) cannot in law dictate the same, according to us, having regard to the nature, form and pattern of the questions, the appellants' assertions in this regard do not merit acceptance.
21. We have carefully perused the judgments and orders impugned before us and are in agreement with the ultimate conclusions recorded therein, however, for the reasons recorded hereinabove.
22. As a result the appeals fail and are dismissed. Interim order(s) stand vacated. No costs.