Hemkatna Deka and Others vs State of Assam and Others

D. Biswas, J.—Civil Rule No. 1411/97 and Writ Petition (C) No. 2590 of 2000 are being disposed of by this common judgment.

Both the writ petitions have been filed for a declaration that Clause (c) of Rule 3 of the Assam Elementary Education (Provincialisation) Rules, 1997 as ultra vires of the Constitution and for quashing the impugned advertisement dated 28.12.1996 (Annexure-II) so far it relates to the recruitment of Assistant Teachers in Morigaon District with consequential direction for appointment of the petitioners as Assistant Teachers in L.P., M.V. or M.E. Schools in the said District.

This court by an interim order dated 11.3.1998 directed that no appointment of Assistant Teachers in Morigaon District be made until further orders. As a result, no appointment could be made.

Petitioners'' case is that the respondents issued an advertisement on 3.9.1991 inviting applications for filling up 7,606 posts of Assistant Teachers in different lower primary schools. The petitioners submitted applications and appeared before the Selection Committee for interview. The Selection Committee on conclusion of the selection process selected more than 700 candidates for appointment to the posts of Assistant Teachers in Morigaon District. The list was also approved by the Sub-Divisional Level Advisory Board for Elementary Education vide resolution adopted on 28.1.1996. In pursuance thereof, appointment letters were issued to more than 500 candidates to the exclusion of about 236 candidates. The petitioners belong to the deprived group of selected candidates who have been denied appointment although they were duly selected. Their grievance is that the State respondents, before exhaustion of the list thus prepared, issued a fresh advertisement on 28.12.1996 for filling up 7,500 vacancies in various Districts including the District of Morigaon. According to them, the steps taken by the respondents to go for a fresh selection without exhausting the previous list are against the law and the principles of natural justice.

The State respondents, in their affidavit-in-opposition, controverted the claim of the writ petitioners that they were selected by the competent authority in pursuance of the advertisement issued in 1991. In para-7 of their affidavit it has been specifically pleaded that only 446 candidates were selected as per Resolution dated 28.1.1996 and all of them were appointed on 30.1.1996. It is further contended that there was no indication that remaining 236 persons would be considered for appointment against future vacancies and no resolution to this effect is available in the proceeding book. Their positive case is that the petitioners were not selected for appointment and no person out of the approved list dated 28.1.1996 was left out for appointment.

During the course of argument Shri O.K. Bhattacharyya and Shri A.K. Phukan, learned Sr. counsel for the writ petitioners, tried to show that there was an additional list of 236 candidates now being disowned by the State Authority. Their contention is that existence of the additional list is evident from the letter dated 16.12.1997 written by the respondent No. 4 to the Director of Elementary Education. The said additional list found in a miscellaneous file which include the names of the writ petitioners clearly show that the writ petitioners were duly selected by the Selection Committee for appointment. Besides, the vires of Clause (6) of Rule 3 of the Rules of 1997 has been assailed on the ground that the Executive laid down one year as the validity period for the select list in excess of the rule making powers delegated u/s 27 of the Assam Elementary Education (Provincialisation) Act, 1974. According to the learned counsel, the State Executive while making the rule exceeded the powers delegated u/s 27 of the Act in prescribing the period of limitation, thus assuming and exercising the plenary powers of the State Legislature.

It is evident from above that the controversy to be resolved in this case are relatable to two issues; firstly whether an additional select list was prepared for appointment and secondly, whether the State Executive prescribed the period of limitation in Clause (6) of Rule 3 of the Rules of 1997 in excess of the rule making powers as provided in Section 27 of the Act. It is pertinent to mention here that the State in their affidavit-in-opposition has emphatically denied the existence of any additional list converting the first issue as contentious. In a petition under Article 226 of the Constitution an indepth scrutiny is impermissible for the purpose of determination of a disputed fact. However, if the documents on record ex-facie show that the disputed facts can be resolved without delaying deep into the matter, the court shall not hesitate to undertake such an exercise. It is needless to point out here that if on examination of available documents it cannot be conclusively decided that an additional list was prepared and approved by the competent authority, it would be a futile academic exercise to look into the vires of Clause (6) of Rule 3.

Petitioners'' case is mainly based on the letter dated 16.12.1997 written by the Deputy Inspector of Schools to the Director of Elementary Education in which it is stated that an additional list was found in a miscellaneous file which include 236 numbers of candidates. The parawise comments forwarded by the District Elementary Education Officer annexed with the affidavit-in-opposition on behalf of the respondents No. 5 to 26 of the Writ Petition (C) No. 1411 of 1997, however, shows that there was no indication of selection of 236 persons for future consideration and there is no mention of it in the Resolution dated 28.1.1996 recorded in the proceeding book. However, the District Elementary Education Officer submitted that a select list of 236 candidates has been found in a miscellaneous file. Learned State Counsel, as a counter to the aforesaid documents produced, a proceeding book for examination by this court. We have carefully examined the said proceeding book and it appears that the resolution adopted on 28.1.1996 make no mention of any additional list of 236 candidates selected for future vacancies. A loos copy of a resolution to support the additional list has been placed by Sri A.K. Phukan, learned counsel during the course of argument. We have not been able to find out any mention of this resolution in the proceeding book placed before us. In the absence of any resolution indicating selection of addition 236 candidates and preparation of additional list of the said candidates, it would not be permissible on the part of this court to treat the additional list as an approved list of duly selected candidates for appointment. Clause (6) of Rule 3 of the Rules of 1997 which is applicable in the instant case clearly provides that the Selection Committee shall scrutinise the mark sheets and other necessary testimonials of the candidates and prepare a list of candidates for interview by the Selection Committee. It also provides that the said list shall be placed before the Sub-Divisional Level Selection Board for approval. In the instant case we do not find anything in the proceeding book that any such list was prepared by the Selection Committee with any supporting resolution and that it was approved by the Board. Even if an additional list was found in a miscellaneous file as mentioned in the letter dated 16.12.1997 written by the Deputy Inspector of Schools and mentioned in para 7 of the parawise comment submitted by the District Elementary Education Officer, the said list of candidates cannot be treated as a valid select list for non-compliance of the provisions of Clause (6) of Rule 3. The Rules nowhere authorise the Selection Committee to recommend candidates for future vacancies. Even if any such list was prepared, it would have no enforceability in the eye of law since the recommendation was made against future vacancies.

We may, therefore, summarise that the list relied upon by the writ petitioners as a select list cannot be treated as a duly prepared additional select list of candidates for appointment as Assistant Teachers against future vacancies. It, therefore, follows that the writ petitioners have no right to enforce appointment on the basis of the said list. Because of this conclusion we are not inclined to deliberate upon the question relating to the vires of Clause-(6) of Rule 3 as it would be an exercise purely academic in nature. Thus, reference to the case laws cited in this regard have also not been averted to.

In the result, both the writ petitions are dismissed. Consequently, the stay order passed on 11.3.1998 in both the writ petitions stands vacated. Accordingly, all the miscellaneous petitions arising out of the writ petitions also stand disposed of.