KIRAN DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE petitioners ate 26 in numbers, and were applicants to the post LP//MV/ME School Teachers for the Lakhimpur District, in pursuance to the advertisement made in September 1991. According to the petitioners the selection Committee prepared the select list in December 1993 but the same was not published for long. Ultimately in July 1994 the said Select List was published. It is averred that the petitioners were selected by the Selection Committee for the Bihpuria Constituency. It is also averred mat the 26 petitioners are selected by the Selection Board. THE Petitioner No. 1 to 17 are selected for L.P. School teacher's post while the Petitioner No 18 to 26 are selected for ME/MV School teacher's post. THE respective names, category and the serial number in the select list are called down below :- FOR L.P. SCHOOLS: <FRM>JUDGEMENT_226_GAULT1_1997Html1.htm</FRM> Though the names of the Petitioners appear in the Select List and they are being entitled to be appointed, the Respondents in a most illegal and being arbitrary fashion denied the petitioners front appointed in the respective post, and appointed persons by breaking this merit list and even went to the extent of appointing persons from outside the select list. THE petitioners cited some instances of such irregular appointments For a long time the Respondents refrained from submitting the affidavit, and therefore this Court had to pass the following order on 28.11.95 ;- "Despite several opportunities given to the respondents to file their affidavit-in-opposition, no affidavit- in opposition has been filed. For hearing of this case the relevant records of selection and appointment of the teachers relating to the advertisement made in 1991 will be required. THE Deputy Inspector of Schools, North Lakhimpur- Respondent No. 4 is hereby directed to appear before this Court in person on 14 th Dec 95 at 10.30 A.M. with ail relevant records, when the case will be listed for further bearing, tt will be open for the Respondent No. 4 to file affidavit- in-opposition with regard to the number of vacancies advertised, the number of persons selected and appointed and that remain to be filled up etc." THE Respondent No. 4- the Deputy Inspector of Schools, North Lakhimpur appeared in the Court on 5.1.96 with the relevant records. THE Counsel on behalf of the respondent sonemt(sic) to time to file an affidavit-in -opposition as directed by the Court, and finally on 2.2.96 the Respondent No. 4 -- THE Deputy Inspector of Schools, North Lakhimpur-filed a joint affidavit on his behalf as well as on behalf of the State of Assam represented by the Commissioner and Secretary to the Govt of Assam, Education Department, Dispur, Guwahati, THE Director of Elementary Education, Assam, Kahilipara. Guwahati, and the District Elementary Education Officer, Lakhimpur, North Lakhimpur.

(2.) IN the affidavit-in-opposion the respondents admitted the fact that all the 26 persons were selected and the respective position of the candidates in the Select list was also admitted. The Respondent, for reasons known to them did not disclose as to the number of vacancies of teachers as on the date of advertisement. No records were produced before the Court for ascertaining the actual facts as narrated in its affidavit. The Respondent, however, asserted in its affidavit that the number of vacancies were not specifically mentioned at the time of the publication of the advertisement, and the Deputy INspector of Schools acted on the number of probable vacancies likely to be falling vacant in the following year. Therefore, according to the Respondents, though Select List was published in the month of September, 1994, because of the general ban on appointment by the Government and for want of vacancy the question of appointing the persons did not arise. As regards the irregularities in appointment of the 6 (six) persons as pointed out at Paragraph 6 of the petition the respondents stated that Smti Lily Bora and Smti Jayanti Hazarika were working as Honorary teachers for more than 10 years and therefore they were regularised. Smti INdreswari Sangrnai and Sri Manik Hazarika, who were adhoc employees/appointees have been regularised by the Advisory Board. Sri Prabin Saikia was appointed temporarily in a leave vacancy and not a regular appointee, a$ alleged. Sri Lolit Baruah has been appointed as per direction of the Honourable High Court passed in C.R. No, 1053/94. All these statements are based on records and the Respondents did not make any endeavour to justify the same by producing the records, before the Court. The Civil Rule No, 1053/94 on the basis of which Sri Lolit Baruah was alleged to be appointed, on verification it, was found that the Civil Rule No. 1053/94 was a matter relating to Taxation and the petition was filed by M/s Assam Carbon Products Ltd. The Respondents also averred that during the period of advertisement published in 1991 and the, application publication of select list in 1994, about 212 new vacancies were created which were utilised in the single teacher schools for converting them into double teachers schools and about 112 vacancies arose from retirement and other regular vacancies. These vacancies were filled up in compliance of the High Court's order passed in different cases and some were filled up by the Sub- Divisional Level Advisory Board from amongst the teacher who were already in the respective schools on honorary basis. A list given below which will show a clear picture now these vacancies were utilised. 1]. Appointed as per direction of the Hon'ble High Court in C.R. No. 49/91:37 2]. Appointed as per direction of the Hon'ble High Court in C.R.No. 1585/91 : 8 3]. Appointed as per direction of me Hon'ble High Court in C.R.No. 1511/88 : 27 4]. Single teacher regularised by the Sub-District Level Advisory Board : 39 5]. Honorary teacher whereby working appointed against the original Sanction post of 212 : 57 6]. Appointed as per Govt, Order following guidelines : 11 7]. Appointed by the Sub-Divisional Level Advisory Board, North Lakhimpur : 145 Total : 324 Although at Para 8 of the affidavit-in- opposition the Respondents claim that 37 persons were appointed as per the Civil Rule No. 49/91, on verification of the Civil Rule No. 49/91, it appeared that Civil Rule No. 49/ 91 there was only one petitioner namely Miss Manjubala Bora of Morigaon District, Assam. Similarly it was stated in the affidavit that 8 persons were appointed as per the direction of the High Court in Civil Rule No, 1585/91, it appears that the Civil Ruie No. 1585/91 was disposed of by the Court on 19,3.91 there were (nine) petitioners in this Civil Rule whose names are mentioned below :- 1]. Srimati Champa Dutta 2]. Sri Haren Gogoi 3]. Sri Jamuna Narah 4]. Srimati INdrani Barpatra 5]. Sri Dehiram Borah 6]. Srimati Lily Bora 7]. Sri Ganga Prasad Baruah 8]. Srimati Chandra Kami Dutta 9]. Srimati Sahera Khatoon. The said petitioners asserted in the Civil Rule that their names appeared in the Select Lists dated 9.1.87 prepared on the basis of the interview held in October, 1986. Names of Sl. 1 to 5 were shown at Serial No. 85, 88, 96, 105 and 106 of the select list of 9.1.87 for Naobaicha Constituency under the Deputy INspector of Schools, North Lakhimpur. The names of the petitioner Nos. 6 and 7 namely Smti Lily Bora and Sri Ganga Prasad Banian appear in the select list dated 9.1.87 for the Bibpuria Constituency and the name of petitioner No. 8 and 9 Smti Chandra Kami Dutta and Smti Sahera Khatoon appear in the select list of 9.1,87 for the North Lakhimpur Constituency. Therefore, the question of appointment of atleast 6 (six) persons in the Bihpuria Constituency as per the High Court's order in Civil Rule No. 1585/91 does not arise. inciddently the Respondents, not to speak of indicating about the appointment letter, even their respective dates of the aforesaid appointment order was not disclosed. The Respondent in the supplementary affidavit stated that Civil Rule No. 1511/88 was dismissed for default on 28.6.93 and therefore the question of appointing 27 persons as per the direction of this Court in Civil Rule No. 1511/88 does not arise. Even otherwise the Respondent failed to show about the details of appointment of those 27 persons in any schools in Demaji Constituency. The Respondent similarly, though claimed that 39 persons were appointed in the Single Teacher Schools by regularisation process by the Sub-Divisional District Level Advisory Board and 57 honourary teachers were claimed to be working against the original sanctioned post of 212 and 11were appointed as per Govt. order following the guidelines and 145 persons were appointed as per Sub-Divisional District Level Advisory Board decision was also could not be justified by the Respondents. As a matter of fact sufficient time and opportunities were given to the Respondents, and on a number of times the counsels representing the Government were called upon to justify the action but no fruitful endeavour was made from the Governmental agencies to justify the actions of the Respondent, For more than one occasion this Court through the learned Government Advocates who represented them sought infomations about the vacancy position but for reasons best known to the Respondents the same information was also withheld from the Court. On 6.8.96 Mr. B.J. Talukdar appearing on behalf of the Government, submitted that all the records of the case are not traceable and also stated that the Respondent No, 4 the Deputy INspector of Schools concerned was placed under suspension but substantial assistance could be provided by the Respondent beyond that. The affidavit of the Respondent leads one to nowhere. The concerned Deputy INspector of Schools on oath admitted about selection of 1600 candidates and those 1600 were selected according to his affidavit without there being any vacancy. Here no mention was made as to why the futile exercise was undertaken at the cost of the public exchequer. On the same breath the officeer stated that though the select List was published in the month of September 1994 there was a general bah on appointment. What was the nexus with the general ban on appointment, in the absence of any vacancy, was also not explained. The officer concerned - Respondent No. 4 -- the then Deputy INspector of Schools -- deliberately made incorrect statement before the Court, which shall also be separately dealt with. The said state of affairs exhibits, that the authority on the one hand merrily went on with the selection process by publishing notification and thereafter prepared the select list but instead of appointing from the select list appointed persons on their own from outside the select list according to their whims. Appointments were made in violation of the existing laws and norms. IN the absence of those persons before this Court who were illegally appointed the Court is not in a position to intervene in respect of their appointment. The entire process was complied with the knowledge of state instrumentalities. On consideration of the facts and circumstances of the case the following directions are issued: