NITYANANDA PHUKAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the five petitioners have prayed for quashing the orders dated 3.5.97 and 2.6.97 passed by the Commissioner & Secretary to the Government of Assam, Education Department and the Inspector of Schools, Dibrugarh District Circle, Dibrugarh respectively and for directing the respondents not to terminate the services of the petitioners in their respective posts in which they have been regularised.

(2.) The facts briefly are that the petitioner Nos. 1, 2 and 3 were appointed as Lower Division Assistants by the Inspector of Schools, DDC, Dibrugarh by orders dated 14.6.92,8.5.92 and 9.4.92 respectively and in the said appointment orders it was stipulated that appointments were purely temporary and would stand terminated automatically if they were not selected by the Selection Board. The petitioner Nos. 4 and 5 were appointed as Grade-IV employees by the Inspector of Schools, DDC, Dibrugarh by his orders dated 9.4.92 and 12.3.92 respectively. In the appointment order dated 9.4.92 for the petitioner No.4 it was stipulated that the appointment was purely temporary and would stand terminated automatically if he was not selected by the Selection Board. In the appointment letter dated 12.3.92 of the petitioner No.5 it was also stipulated that the appointment was purely temporary and would stand terminated automatically on the day of completion of three months. Pursuant to the said orders of appointment the petitioners joined their respective posts and started working. Thereafter, the District Selection Board, Dibrugarh adopted a resolution on 7.4.93 that all appointments issued to 3rd and 4th Grade employees during the period from 27.11.91 till 15.6.92 would be taken up for regularisation and authorised the Inspector of Schools, Dibrugarh-cum-Member Secretary of the Board to take necessary action in that regard. Pursuant to the said resolution, the Inspector of Schools, Dibrugarh, regularised the services of the five petitioners in their respective posts with effect from the date of their joining. In the meanwhile, by an Office Memorandum dated 15.6.92, the Government of Assam, Personnel Department, formulated a recruitment policy of appointment of non-gazetted staff other than school teachers in district and below district level offices and as per the said policy each of he districts was to have a Central Recruitment Committee for selection of candidates for appointment to non-gazetted Grade-Ill and Grade-IV posts and on the basis of such selection made by the Central Recruitment Committee (for short, 'C.R.C.'), appointments were to be made to different Grade-Ill and Grade-IV non- gazetted posts. In accordance with the said recruitment policy a selection was conducted by the CRC, Dibrugarh district and various candidates were selected for appointment to Grade-Ill and Grade-IV posts. When some of the candidates selected for Grade-Ill and Grade-IV posts by the CRC, Dibrugarh District in the year 1993 were not appointed, they moved this Court in two writ applications numbered as Civil Rule Nos. 287/94 and 288/94 and by judgment dated 5.7.94, a learned single Judge of this court held, inter alia, that offices of the schools would also be covered by the said recruitment policy formulated under the Office Memo dated 15.6.92 of the Government of Assam, Personnel Department and accordingly directed the Inspector of Schools, DDC, Dibrugarh to make appointment of the writ petitioners in Grade-Ill and Grade-IV posts in pursuance of the select list dated 6.3.93 prepared by the CRC, Dibrugarh district. Aggrieved by the said judgment and order dated 5.7.94, the Inspector of Schools, DDC, Dibrugarh, filed Writ Appeal No. 361/94 contending, inter alia, that the recruitment policy incorporated in the Office Memo, dated 15.6.92 was not applicable to recruitment to Grade-III and Grade-IV posts in schools. But by judgment dated 24.7.95, the Division Bench of this court rejected the said contention of the Inspector of Schools, DDC, Dibrugarh, and having found that ad-hocism had been going on for some time though there was select list from which appointments could have been made, directed the; Secretary to the Government of Assam, Education Department and the Director of Secondary Education, Assam to conduct an inquiry and to pass reasoned order in respect of appointment to vacant posts of Grade-III and Grade-IV posts on regular basis in accordance with law and in the light of the observations made in the judgment of the learned single Judge and the Division Bench. In compliance with the said directions in the judgment dated 24.7.95 of the Division Bench in the said Writ Appeal No. 361/94, the Commissioner & Secretary to the Government of Assam, Education Department, Cancelled all ad hoc appointments made by the Inspector of Schools, DDC, Dibrugarh which were subsequently regularised as per the recommendation of the District Level Selection Board by his order dated 23.11.95. Aggrieved by the said order dated 23.11.95, the Commissioner and Secretary to the Government of Assam, Education Department, the petitioners filed writ application numbered as Civil Rule No. 5114/95 before this court and on 4.12.95 this court while issuing rule passed an interim order to the effect that the petitioners shall not be ousted from service without the leave of this court and the petitioners shall also be paid their regular salary etc and the impugned order shall stand suspended. Some others who were similarly situated as writ petitioners filed another writ application numbered as Civil Rule No. 5115/95. The aforesaid two Civil Rules No. 5114/95 and 5115/95 were again taken up for orders by the Court on 29.8.96 when the court found that if the six respondents in the Civil Rule No. 5115/95 were appointed, the six petitioners would be affected and therefore directed that the petitioners were to be considered by the authorities and observed that the learned Additional Senior Government Advocate, Assam would receive instruction by 30.6.96 as to whether the petitioners could be accommodated to sort out the whole problem but made it clear that the petitioners would not be appointed at the cost of the respondents - 8. 9, 10, 14. 15 and 16 and the respondents would get their appointment if they were otherwise found to be eligible by the authorities and, accordingly, modified the earlier orders of stay passed by the court. Pursuant to the said order dated 29.8.96 in Civil Rule Nos. 5114/ 95 and 5115/95, the Commissioner & Secretary to the Government of Assam by his order dated 3.5.97 decided to allow the petitioners to appear in two subsequent selection processes for the posts of non- gazetted staff irrespective of their age bar if applicable and to allow additional 10% marks for their experience gained by them in their respective services in the two subsequent selection processes. In accordance with the said order dated 3.5.97 of the Commissioner & Secretary to the Government of Assam, Education Department, the Inspector of Schools, DDC, Dibrugarh, by order dated 2.6.97 cancelled the appointment of the petitioners with immediate effect. Aggrieved by the said order dated 3.5.97 of the Commissioner & Secretary to the Govt. of Assam and dated 2.6.97 of the Inspector of Schools, DDC, Dibrugarh, the petitioners moved this court for appropriate relief.

(3.) At the hearing, Mr R.P. Sharma, learned counsel for the petitioners, submitted that the present petitioners were not parties to Civil Rule Nos. 287/94 and 288/94 and Writ Appeal No. 361/94 and hence the judgments of the learned single Judge in the said Civil Rule Nos. 287/94 and 288/94 and of the Division Bench in the said Writ Appeal No. 361/94 were not binding on the petitioners and the principle of res judicata would not apply to the decision in the said cases by the learned single Judge and the Division Bench that the recruitment to the offices of different schools would also be covered by the Office Memorandum dated 15.6.92 of the Government of Assam, Personnel Department. He relied on the provisions of rule 7 of the Assam Secondary Education (Provincialised) Service Rules, 1982 and rule 6(d) of the Assam Secondary Education (Provincialisation) (Service & Conduct) Rules, 1979, and submitted that selection to the posts of Grade-III and Grade- IV staff of the offices of the schools was to be made by the District Level Selection Board and not by the C.R.C. of the District as laid down in Office Memorandum dated 15,6.92 of the Government of Assam, Department of Personnel. He further argued that the policy of recruitment as laid down in Office Memorandum dated 15.6.92 of the Govt of Assam, Department of Personnel applies to only District Establishments but does not apply to the offices of the schools. He contended that it was open for the Education Department of the Govt. of Assam to lay down its own policy of recruitment to Grade-in and Grade-IV posts of the offices of different schools under the Education Department and that the recruitment policy as contained in Office Memorandum dated 15.6.92 of the Government of Assam, Personnel Department does not apply to the schools. Mr Sharma further contended that assuming that the said Office Memorandum dated 15.6.92 of the Govt. of Assam, Personnel Department applied also to offices of different schools, the select list prepared by the C.R.C. was valid only upto 31.12.93 as would be evident from the Office Memo, dated 14.9.193 of the Government of Assam, Personnel (B) Department and not beyond 31.12.93. Hence, no action could be taken to appoint any of the candidates from the said select list prepared by the C.R.C. after 31.12.93 in place of the petitioners. Finally, Mr Sharma argued that by order dated 29.8.96 passed in Civil Rule Nos. 5114/95 and 5115/95, this court directed that instructions would be obtained by the learned Additional Senior Government Advocate, Assam for accommodating the petitioners and the said instructions were to be submitted by the learned Additional Senior Government Advocate by 30.9.96, but no such instructions were reported to the court and instead the impugned orders dated 3.5.97 and 2.6.97 were Issued by the Commissioner & Secretary to the Govt. of Assam, Education Department and the Inspector of Schools, DDC, Dibrugarh respectiveJy for the cancellation of the appointment of petitioners on an erroneous interpretation of the order dated 29.8.96 of this court in the said Civil Rule Nos. 5114/ 95 and 5115/95.