Smt. Pijulata Kalita vs State Of Assam And 6 Ors

ACHINTYA MALLA BUJOR BARUA

1.Heard Mr. R Sarma, learned counsel for the petitioners. Also heard Mr. N Sarma, learned Standing counsel, Secondary Education Department.

On 31.01.1996 an advertisement was issued inviting applications for filing up certain vacant post of LP School teachers under Bodoland

Autonomous Council in the Bajali Sub-Division. The petitioner participated in the said selection process and consequent thereof a select list dated

29.05.1996 was published. As no appointments were forthcoming some similarly situated persons preferred a writ petition before this Court which was

numbered as Civil Rule No.6016/1996. The said petition was given a final consideration by the Judgment and Order dated 30.07.1997 by which the

Director of Elementary Education in the Bodoland Autonomous Council was directed to exercise his discretion under Rule 3(5) of the Assam

Elementary Education (Provincialisation) Rules of 1977.

Against the said order a review was preferred by the State respondent authorities being Review Application No.86/1998, which was given a final

consideration by the Judgment and Order dated 20.01.1999, by which the review was dismissed. As nothing further was done some other similarly

situated persons had preferred another writ petition being WP(C)No.4987/1999 wherein by the Judgment and Order dated 24.05.2001 it was held that

some of the petitioners therein are entitled to appointment as per the select list dated 29.05.1996. Accordingly, those persons who were declared to

have been entitled for appointment were appointed. In the circumstances, when some of the persons from the select list dated 29.05.1996 were

appointed, the petitioner along with others had preferred a writ petition being WP(C) No.6362/2007 which was given a final consideration by the

Judgment and Order dated 28.05.2008 by which it was observed that the authorities were still authorized under the law to make the appointment from

the select list dated 29.05.1996. After the said Judgment and Order certain process were initiated by the respondent authorities for making the

appointment pursuant to the select list dated 29.05.1996. But the said process ultimately culminated in the order dated 16.03.2013 of the Principal

Secretary, Bodoland Territorial Council whereby it was concluded that the select list dated 29.05.1996 cannot be further acted upon, as in the

meantime, a period of one and half decade had elapsed. In the circumstances, the petitioner prefers the present writ petition against the order dated

16.03.2013.

Another writ petition being WP(C)No.5985/2013 was also preferred by certain similarly situated persons which resulted in the Judgment and Order

dated 28.07.2016 wherein a conclusion was arrived that although the petitioners therein have a legitimate expectation of being appointed on the basis

of the select list dated 29.05.1996 when persons placed below them have been appointed, but as in all probability the petitioners therein have crossed

their upper age limit for entry into government service, a relief in the form of direction to be appointed was refused, although at the same time a

direction was issued to pay an exemplary cost of 1 lakh each to all the 6 writ petitioners. The said order was carried in appeal by WA No.387/2016.

By the Judgment and Order dated 02.06.2017 in WA No.387/2016, it was held that notwithstanding the lapse of time and having regard to the

availability of vacancies and scope of appointment of the appellants involved therein, without creating any precedent, a direction was issued to the

respondent BTC authorities to appoint the said 6 appellants against any suitable post as Assistant Teacher in any Lower Primary or Upper Primary

Schools in the Baksa district.

In the instant case also we find that the sole petitioner herein is similarly placed as the 6 appellants in WA No.387/2016. Here also it is a case,

where the petitioner has a legal right to be appointed pursuant to the select list dated 29.05.1996, but inspite of it being so, no appointment was made in

favour of the petitioner and further persons below the petitioner in the select list had already been appointed. The Division Bench has also taken care

of the aspect as to whether a direction for appointment should be given after a lapse of almost two decades and in doing so the decision of the learned

Single Judge refusing to give appointment was overturned.

Although it had been provided by the Division Bench that the said order shall not form a precedent, but as the circumstances of the petitioner is

exactly the same as that of the 6 appellants therein and that the petitioner has also been deprived of his legal right and also in a circumstance where

persons below him were appointed, we are of the view that a similar right to be appointed has also accrued in favour of the petitioner. Further, we also

take note of that upon the other 6 appellants in the writ appeal being appointed, it is now only the petitioner who has been deprived of an appointment

pursuant to the said select list. It is also taken note of that the present writ petition was filed by the present petitioner along with the writ petition of the

other 6 appellants in WA No.387/2016 and for all purpose, the case of the petitioner ought to have been taken up for consideration along with others.

In the circumstance, a direction is issued to the BTC authorities to also give a similar relief to the petitioner and appoint him in any available post in

any lower primary school in the district of Baksa.

It is, however, provided that this order is passed on the premises and understanding that the petitioner is the only candidate left from the select list

dated 29.06.1996 and it is also informed that no writ petition with a similar cause is further pending. In the circumstance, we further provide that this

order be also not used as a precedent by any other person, more so, in view of the fact that no further writ petition on the similar cause is pending.

In terms of the above, this writ petition stands disposed of.

As provided by the Division Bench of this Court the aforesaid exercise be also done in respect of the petitioner within a period of 3(three) months

from the date of receipt of a certified copy of this order.

An issue has been raised by Ms. RB Bora that the name of the writ petitioner and the name of a selected candidate at Sl. No.68 of the select list

dated 29.05.1996 are at variance. The respondent authorities shall examine the same and arrive at a satisfaction that the present writ petitioner and

the said candidate appearing at Sl.No.68 are one and the same person.