Md. Abdul Jinna Prodhani v. The Principal/Secretary, Agomoni Higher Secondary School and 12 Ors

JUDGMENT AND ORDER (CAV) Heard Mr. J. Ahmed, learned counsel appearing for the appellant as well as Mr. A.U. Choudhury, learned counsel representing the respondents.

¶2This is a Regular Second Appeal under Section 100 of the Civil Procedure Code (CPC) where the judgment and decree dated

12.11.2018 passed by the learned Civil Judge, Dhubri in Title Appeal No.32/2016 upholding the judgment and decree dated 18.08.2016 passed by the Munsiff No.1, Dhubri in T.S. No.236/2013, is under challenge.

¶3On 20.10.2012, an Advertisement was published whereby applications were invited for filling up a vacancy in Grade-IV service in Agomoni Higher Secondary School. The last date of submission of applications was fixed on 30.10.2012 and the date of interview was fixed Page No.# 5/9 on 04.07.2012.

¶4As many as 27 applications were filed. The appellant Md. Abdul Jinna Prodhani and another person named Abdus Samad Sk. were amongst those applicants.

¶5On 01.07.2013, the Selection Committee selected 7 persons for viva-voce. The list was like this–

¶1Abdul Jinna Prodhani - Roll No.03.

¶2Momedar Ali - Roll No.02.

¶3Aminur Rahman - Roll No.08.

¶4Bishnu Chandra Roy - Roll No.13.

¶5Jahangir Ali - Roll No.14.

¶6Jaghangir Alom - Roll No.17.

¶7Shahadat Ali - Roll No.20.

¶6This selection list did not have the name of Abdus Samad Sk. because he was found over-aged. At the time of application, he was 40 years 2 months 5 days as on 01.01.2012, which was more than the maximum age limit of 38 years.

¶7The interview was not held on 04.07.2012. Rather, a written interview was held on 29.06.2013.

¶8Before the viva-voce was held, on 03.07.2013, without holding any viva-voce examination, the Selection Committee selected Abdus Samad Sk. for appointment as Grade-IV employee in the said school.

¶9Therefore, the appellant Abdul Jinna Prodhani filed the suit before the trial court seeking a declaration that the selection of Abdus Samad Sk. is illegal. Page No.# 6/9

¶10Agomoni Higher Secondary School contested the case by filing a written statement. It is admitted that 27 candidates filed applications for the Grade-IV post and out of those 27 applications, 2 were rejected. According to the defendant, only 13 candidates appeared in the written test and 7 candidates were selected for viva-voce. The said list is like this –

¶1Abdus Samad Sk. - Roll No.08.

¶2Monowar Hussain - Roll No.20.

¶3Abdul Jinna Prodhani - Roll No.03.

¶4Momedar Ali - Roll No.02.

¶5Raju Rabidas - Roll No.14.

¶6Ramvaras Rabidas - Roll No.17.

¶7Jahangir Ali - Roll No.13.

¶11The defendant admitted that Abdus Samad Sk. was over-aged at the time of application but his age was relaxed by 5 years by the Inspector of Schools, DDC, Dhubri as per the order of Assistant Director of Secondary Education, which made him eligible to apply for the post.

¶12The defendant further submitted that viva-voce was held on

07.07.2013 and it was attended by Abdul Jinna Prodhani.

¶13It is further claimed that Abdus Samad Sk. had secured highest marks in the written test as well as in the viva-voce.

¶14On the basis of the pleadings, the trial court framed the following issues:

¶1Whether suit is maintainable in law and facts?

¶2Whether there is any cause of action for the suit? Page No.# 7/9

¶3Whether appointment of defendant no.6 in the grade-IV post of Agomoni Higher Secondary School is illegal?

¶4Whether the plaintiff is entitled to get any relief, as prayed for?

¶5To what relief, parties are entitled to?

¶15During the trial of the case Md. Abdul Jinna Prodhani examined two witnesses and exhibited some documents. The defendants examined three witnesses. On the basis of the evidence on record, the trial court dismissed the suit of Abdul Jinna Prodhani.

¶16He preferred an appeal and the appeal was also dismissed.

¶17The present second appeal was admitted for hearing upon the following substantial question of law–

¶1Whether the findings of the court below in upholding the action of the selection committee in accepting the age relaxation certificate of the respondent no.6 which are admittedly procured after the recruitment process are in accordance with law?

¶18I have considered the submissions made by the learned counsels of both sides.

¶19There is no denial of the fact that the Advertisement asking for applications to fill up a post in Grade-IV of Agomoni Higher Secondary School was published on 20.10.2012 wherein, the last date of submission of application was fixed on 30.10.2012. Even the date of interview was mentioned as 04.07.2012.

¶20It is an admitted fact that at the time of application, Abdus Samad Page No.# 8/9 Sk. was more than 38 years of age.

¶21Now, the question arises how Abdus Samad Sk. was selected?

¶22His selection is based on a Certificate (Exhibit-A) issued by Inspector of Schools, DDC, Dhubri on 06.11.2012. The age of Abdus Samad Sk. was relaxed for 5 years for applying to the post of Grade-IV in provincialised Secondary Schools.

¶23So, it is clear that the age of Abdus Samad Sk. was relaxed after the last date fixed for accepting application i.e. on 30.10.2012. Therefore, on

30.10.2012, Abdus Samad Sk. was not eligible to apply for the post of Grade-IV of Agomoni Higher Secondary School.

¶24Even then, Abdus Samad Sk. was allowed to appear in the written examination as well as in the viva-voce and ultimately, he was selected.

¶25Now, this Court is of the opinion that the selection of Abdus Samad Sk. (respondent no.6) is illegal. His appointment is liable to be set aside.

¶26Accordingly, the impugned first appellate court judgment affirming the judgment of the trial court is set aside.

¶27The appeal is allowed. The suit of Abdul Jinna Prodhani is decreed accordingly.

¶28The appointment of Abdus Samad Sk. as a Grade-IV employee in Agomoni Higher Secondary School is set aside. The respondent no.1, the Principal/Secretary, Agomoni Higher Secondary School shall hold a fresh selection process to fill up the vacant post of Grade-IV employee in Agomoni Higher Secondary School.

¶29The substantial question of law is answered accordingly. Page No.# 9/9 Send back the LCR.

JUDGE Comparing Assistant

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