Atul Ch. Das v. The State of Assam and 54 Ors

PageoNo.#o1/13 GAHC010243602017 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7027/2017o ATULoCH.oDASo S/O.oSANTIoRAMoDAS,oR/O.oVILL.oRAMPUR,oP.O.oRAMPUR,oDIST.oBAKSA,o BTC,oASSAM. ----VERSUS-----

1.oTHEoSTATEoOFoASSAMoando54oORS.o REP.oBYoTHEoCOMM.oandoSECY.oTOoTHEoGOVT.oOFoASSAM,oSECONDARYo EDUCATIONoDEPTT.,oDISPUR,oGUWAHATI-6,oASSAM. 2:THEoDIRECTOR, oSECONDARYoEDUCATION,oASSAM oKAHILIPARA,oGUWAHATI-19. 3:THEoINSPECTORoOFoSCHOOLS oBAKSAoBTADoDIST.oCIRCLE oDIST.oBAKSA,oBTAD,oASSAM. 4:THEoCHIEFoEXECUTIVEoOFFICER oBODOLANDoTERRITORIALoCOUNCIL oKOKRAJHAR,oASSAM. 5:THEoSECY. oEDUCATIONoDEPTT. oB.T.C.,oKOKRAJHAR,oASSAMo783370. 6:THEoDIRECTORoOFoEDUCATION oBTC,oKOKRAJHAR,oASSAMo783370. 7:ASHIMoROY oVILL.oKALISANIMAL oP.O.oBHOWRAGURI oDIST.oKOKRAJHAR,o783370. Page No.# 2/13 8:NABA KRISHNA ROY VILL. BALDIABATHAN P.O. SAKUASHRAM DIST. KOKRAJHAR, 783370. 9:BINITA DEVI BRAHAMA RNB HOSPITAL P.O. and DIST. KOKRAJHAR 783370. 10:DIPALI BRAHMA CHOUDHURI VILL. SUDEMPURI, W/NO. 4 DIST. KOKRAJHAR, 783370. 11:MD. ALI AKBAR AHMED VILL. MOKRAMBIL P.O. TULSIBIL DIST. KOKRAJHAR, 783370. 12:MRS. JURI KAITA DAS C/O. KALINDRA KALITA VILL. and P.O. AMAYAPUR DIST. BAKSA 781368. 13:CHANDI SARMAH S/O. LT. PRASAD SARMAH VILL. GANAKPARA P.O. BHULABARI DIST. BAKSA, 781368. 14:NIJWMSRANG BRAHMA VILL. AITHENGJHAR P.O. GERUABAJAR DIST. UDALGURI 781362 15:SUBRATA DUTTA C/O. SUBODH DUTTA VILL. and P.O. TANGLA DIST. UDALGURI 781362. 16:MAYA RAM BASUMATARY S/O SRI AMARENDRA BASUMATARY VILL. NORTHMAORIGAON P.O. and DIST. KOKRAJHAR, 783370. 17:ADHUNA BRAHMA W/NO.-7 RNB ROAD KOKRAJHAR 783370. Page No.# 3/13 18:DIGANTA BRAHMA CHOUDHURY SUDEMPURI, W/NO. -4 P.O. and DIST. KOKRAJHAR 783370. 19:UTTAM DAS VILL. and P.O. ACHALI DIST. BAKSA 781368. 20:CHANDA SAHA ROY VILL. PACHAGARH P.O. FAKIRGRAM DIST. KOKRAJHAR 783370. 21:KAMAL KR BORO S/O. NAGENDRA CHANDRA BORO VILL. KAWOIMARI P.O. JALUKBARI DIST. UDALGURI, 781362. 22:MAYUR MAHANTA MAIN ROAD, W/NO. 9 DIST. KOKRAJHAR 783370. 23:MD SAJEDUR RAHMAN S.O. ATABARI RAHMAN VILL. KATAJHARGAON P.O. KATAJHAR DIST. BAKSA 781368. 24:TARALI BORO VILL. and P.O. UDALGURI DIST. UDALGURI 781362. 25:ANJALI KALITA C/O. LT. RAJANI KT KALITA VILL. and P.O. BIJNI DIST. CHIRANG 781365 26:MRS KANKANA SAHARIA VILL and P.O. KHOIRABARI DIST. UDALGURI 781362. 27:MINU DAS P.O. and VILL.-DHOLIGURI DIST. BAKSA 781368. 28:MD TAYIFUR RAHMAN S/O. LT. KHAJUR ALI VILL. MAKUNDAPUR P.O. BHOGPUR, DIST. BAKSA 781368. Page No.# 4/13 29:MRS. NANDITA RABHA VILL. and P.O. THANGURI DIST. BAKSA 781368. 30:SUBHONGKOR GIRI BASUMATARY VILL. DANGAIGAON P.O. DAKSHIN BIJNI DIST. CHIRANG 781312. 31:MRS. HIRON PRABHA ROY VILL. NATABARI P.O. TAMARHAT DIST. BAKSA 781368. 32:PRABHAT DAS VILL. PUB ATHIBARI P.O. ATHIBARI DIST. KOKRAJHAR, 783370. 33:ANANDA CH. GHOSH VILL. BAJIGAON P.O. KATAJHAR DIST. KOKRAJHAR 783370. 34:DIPTI REKA MAJUMDAR VILL. BPPL TOWNSHIP 35:PRANITA BRAHMA VILL. and P.O. TINPUKHURI DIST. KOKRAJHAR 783370. 36:SUBHAS TALUKDAR VILL. GAREMARI P.O. ATHIABARI DIST. KOKRAJHAR 783370. 37:BIRKHANG BASUMATARY VILL. CHALCHALI PO. BETABARI DIST. BAKSA 781368. 38:JUTHIKA NARZARY C/O. BHUBEN NARZARY P.O. and DIST. KOKRAJHAR 783368 Page No.# 5/13 39:AJIT KR MAZUMDER S/O. LT DAMBARUDHAR MAZUMDAR VILL. KHARMAKHA P.O. MAZBAT, DIST. UDALGURI 781362. 40:MANASHJYOTI SARMA VILL. HATIMATA, WARD NO. 8 P.O. and DIST. KOKRAJHAR, 783370. 41:RAJAT KUNDU VILL. SAPATGRAM P.O. FAKIRAGRAM DIST. KOKRAJHAR 783370. 42:BIKRAM KALITA C/O. SATISH KALITA VILL. BHOTEPAYABARI P.O. CHARUABARZAR DIST. BAKSA, 781368. 43:GEETANJALI MEDHI VILL. KALBARI P.O. JAMUGURI, DIST. UDALGURI, 781362. 44:GANGA PRASAD ACHARJEE VILL. NO. 4 SUAGPUR P.O. SUAGUR, DIST. BAKSA 781368. 45:MAHIM SARMAH VILL. ROWTA STATION P.O. ROWTA, DIST. UDALGURI 46:NILANJANA SINGHA BARO VILL.-215/G BRPL DHALIGAON, DIST. CHIRANG. 47:PUNAM RANI BASUMATARY VILL. BAGANSHALI WARD NO. 7, P.O. and DIST. KOKRAJHAR. 48:CHANDANA DEVI VILL. and P.O. BARAMA, DIST. BAKSA. 49:MRS. HIMADRI BRAHMA VILL. TENGAPARA W/NO-5, KOKRAJHAR. Page No.# 6/13 50:KALYANI DEBNATH VILL. STATE BANK COLONY P.O. and DIST. KOKRAJHAR. 51:PRANJALATA DEVI VILL. KOKRAJHAR RASFIELD P.O. and DIST. KOKRAJHAR. 52:PINKU BORA VILL. BISHNUNAGAR P.O. MAZBAT, DIST. UDALGURI. 53:MRS. MAINO BASUMATARY VILL. SUDEMPURI, WARD NO. 4 P.O. and DIST. KOKRAJHAR. 54:SUBODH BASUMATARY C/O. ROBERT B MARAK P.O. SALBARI, DIST. KOKRAJHAR. 55:MUKESH BASUMATARY VILL. AND P.O. RUPAHI DIST. BAKSA, ASSAM Advocate for the Petitioner : MR.P J SAIKIA Advocate for the Respondent : SC, SECONDARY EDUCATION

– B E F O R E – HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

08.01.2024

Heard Mr. M. Pathak, learned counsel for the petitioner. Also heard Mr. P.K. Bora, learned Standing Counsel, Secondary Education Department for respondent Nos.1 & 2; Ms. R. B. Bora, learned Standing Counsel, BTC for respondent Nos.4, 5 & 6 and Ms. K. Jain, learned counsel for private respondents. Page No.# 7/13

¶2The grievance raised by the petitioner in the present proceedings is with regard to the manner and method of publishing the select list for appointment to the post of Subject Teacher in pursuance to an advertisement issued for the purpose on 16.12.2005 and the interview held for the same on

06.07.2006. The name of the petitioner was not reflected in the select list in question.

¶3The Director of Education, Bodoland Territorial Council (BTC), vide an advertisement dated 16.12.2005, had invited applications from the eligible candidates for filing up the vacant posts of Subject Teacher (Post Graduate) of provincialised Higher Secondary Schools coming under the jurisdiction of the Bodoland Territorial Council (BTC). The petitioner, in pursuance to the said advertisement, had submitted his application for the said purpose. On not getting any information as to the result of the selection process held in pursuance of the said advertisement dated 16.12.2005 and finding that the persons similarly situated like the petitioner, were upgraded to the post of Subject Teacher in Assamese, the petitioner had instituted WP(C) No.2097/2015 before this Court, inter-alia, with a prayer for direction for upgradation of his post to that of Post Graduate Teacher and further praying for a direction for declaration of the results of the interview held on 06.07.2006.

¶4The respondent authorities had entered appearance in the said case and had brought to the notice of this Court that in pursuance to the selection process held, a select list was published containing the names of the 49 selected candidates on 09.06.2010. It was also brought to the notice of this Court that the name of the petitioner did not figure in the said select list.

¶5Accordingly, this Court, vide order dated 09.11.2016 proceeded to hold that the petitioner, having not presented a specific challenge to the orders Page No.# 8/13 of upgradation of similarly situated Graduate Teachers to the post of Post Graduate Teacher, this Court would not be in a position to consider such a challenge although the Rules do not provide for upgradation.

¶6This Court noticing publication of the select list on 09.06.20210, had required the same to be furnished to the petitioner and disposed of the writ petition by reserving liberty to the petitioner to assail the legality and validity of the select list in question.

¶7The petitioner, by way of the present writ petition, assailed the said select list dated 09.06.2010.

¶8The learned counsel for the petitioner has contended that the purported select list dated 09.06.2010 cannot be construed to be the select list issued in pursuance to the advertisement dated 16.12.2005 inasmuch as the select list in question does not contain the marks scored by the selected candidates. He has further contested the validity of the said select list on the ground that the same, although stated to be existing before this Court in the earlier round of litigation, however, the same was never furnished to him in pursuance to his RTI application. The respondent authorities have also not furnished to the petitioner the contemporaneous record based on which the select list was so published. Accordingly, it is the case of the petitioner that the respondents did not prepare and published any select list and had only prepared a list of candidates by adopting pick and choose policy.

¶9It is further the case of the petitioner that the list dated 09.06.2010 does not satisfy the requirement of a select list as no marks of the candidates have been disclosed therein. Accordingly, it is the case of the petitioner that the said list dated 09.06.2010, not being the select list required to be published in Page No.# 9/13 pursuance to the advertisement in question, appointments made therefrom are required to be interfered with.

¶10The learned counsel for the petitioner, by placing reliance on the order of upgradation issued to the Graduate Teachers, more specifically, the order issued in respect of one Anupama Devi, who was upgraded from the post of Graduate Teacher to that of Subject Teacher in Assamese vide order dated

30.06.2006 submits that the said upgradation has not been interfered by the respondent authorities and the said Anupama Devi continues in her duties as a Subject Teacher. The petitioner, being the similarly placed like Anupama Devi, prays that his services as a Graduate Teacher be also upgraded to that of the post of Subject Teacher.

¶11The respondent authorities have placed their stand on record by way of filing an affidavit-in-opposition through the Director of Education, BTC. It has been specifically contended therein that the private respondents Nos.7 to 55 have been selected by the duly constituted Committee and on their placement in the select list so prepared, they were appointed as Subject Teachers in various Higher Secondary Schools in Baksa district as per the approval of the BTC.

¶12It is the stand of the respondents that under the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003, there is no provision for effecting upgradation of a Graduate Teacher to that of a Subject Teacher in a provincialised Higher Secondary School. The petitioner, not being recommended by the Selection Committee so constituted for the purpose, could not be favoured with an appointment to the post of Subject Teacher in question.

¶13Referring to the contention made by the petitioner with regard to Page No.# 10/13 Anupama Devi whose services were upgraded as Post Graduate Teacher, it is brought on record that the said Anupama Devi had appeared in an interview held on 28.06.2006 in pursuance to the advertisement in question. However, her name was not included in the list of selected candidates for appointment to the post of Subject Teacher. However, the earlier incumbent in the post of Director of Education, Assam had upgraded the services of said Anupama Devi which was contended to be unfortunate and contrary to the Rules.

¶14The materials available on record denote that the petitioner had submitted his applications for being considered for appointment against the post of Subject Teacher in provincialised Higher Secondary Schools under the BTC in pursuance to the advertisement dated 16.12.2005 and had also participated in the selection process held for the purpose. The contention of the petitioner in the present proceedings that the purported list dated 09.06.2010 cannot be deemed to be a select list published in pursuance to the said advertisement dated 16.12.2005 is to be considered. The ground on which the petitioner had assailed the validity of the said select list is that the list dated 09.06.2010 does not contain the marks obtained by the candidates in various segments of the selection process along with the signatures of the members of the Selection Committee. The petitioner also contends that the said select list having been not furnished to him pursuant to the application preferred by him under the RTI Act, a doubt arises with regard to the existence of the said select list.

¶15A perusal of the said select list and the communication dated

09.06.2010 available at Annexure 21 to the present writ petition would go to show that the select list enclosed to the communication dated 09.06.2010 is one which was approved by the Bodoland Territorial Council (BTC) for appointment of 49 numbers of candidates against the 49 sanctioned vacant posts of Subject Page No.# 11/13 Teachers available in different Higher Secondary Schools under the BTC area. The same is so done on the basis of a proposal submitted by the Director of Education, BTC vide his communication dated 18.05.2010. The list as enclosed to the communication dated 09.06.2010, is the select list for intent and purpose inasmuch as it contains the names of the persons against whom recommendations were made by the Selection Committee for appointment against the post of Subject Teacher in pursuance to the advertisement in question. There is no provision in the Rules holding the field, mandating a list of selected candidates called the select list to contain the marks scored by them in various segments of the selection process. Accordingly, on the said ground, the select list as contained in the communication dated 09.06.2010 cannot be interfered with. Further, the said select list was also brought to the notice of this Court on 09.11.2016 and liberty was granted to the petitioner to challenge the legality and validity of the said select list. Accordingly, the existence of the select list was noticed by this Court as far back as on 09.11.2016.

¶16The petitioner has not brought on record any material other than the contention with regard to the select list made by him as noticed hereinabove to demonstrate that the candidates incorporated in the said select list, were not eligible for such inclusion on the ground that they did not fulfill the eligibility condition for recruitment as Subject Teacher in any provincialised Higher Secondary School. Further, the petitioner has not raised any allegation of malafide against the Selection Committee members by bringing on record the materials highlighting the illegality, they may have committed while recommending the names of the candidates as contained in the select list dated

09.06.2010.

¶17The respondent No.2 in his affidavit has clearly stated that the Page No.# 12/13 private respondent Nos.7 to 55 were recruited in terms of the recommendations made by a duly constituted Committee and were appointed as Subject Teachers at various Higher Secondary schools in Baksa district in terms of the approval granted to the said recommendations made by the Selection Committee by the BTC vide its communication dated 09.06.2010. The petitioner in the reply filed by him to the said affidavit-in-opposition has not denied the correctness of the contentions made by the respondent No.2 with regard to the manner of preparation of the select list in question by bringing on record materials relevant to the purpose. The only contention even in the affidavit-in-reply was made to the extent that no select list was prepared pursuant to the selection held in pursuance of the advertisement dated 16.12.2005,

¶18Accordingly, the challenge of the petitioner to the select list as enclosed to the communication dated 09.06.2010 cannot be accepted and accordingly, is required to be rejected.

¶19The prayer of the petitioner for a direction to the authorities for his upgradation to the post of Post Graduate Teacher is not required to be considered. The petitioner in the earlier round of litigation in WP(C) No.2097/2015 had also raised similar grievance. This Court vide order dated

09.11.2016 had rejected the said prayer of the petitioner on the ground that there was no specific challenge to the order of upgradation of any similarly situated person.

¶20In the present proceedings also, other than referring to the upgradation effected in the case of Anupama Devi vide order dated 30.06.2006 and praying for similar benefit in his case also, the petitioner has not challenged the upgradation of Anupama Devi in the present proceedings. Page No.# 13/13

¶21In absence of any challenge to the said upgradation order, this Court would not be in a position to answer as to the validity of the order dated

30.06.2006 issued in the case of Anupama Devi. It is provided that if any person is aggrieved by the said order of upgradation dated 30.06.2006, it would be open to such person to challenge the upgradation by way of instituting appropriate proceedings, subject to explanation of the laches involved on account of the delay in instituting such proceeding.

¶22In view of the conclusions arrived hereinabove, the challenge of the petitioner to the select list dated 09.06.2010 is rejected.

¶23Accordingly, the instant writ petition stands dismissed. However, there would be no order as to costs.

JUDGE Comparing Assistant