Page No.# 1/15 vs The State Of Assam And Anr
2021 Latest Caselaw 1338 Gua

                                                                 Page No.# 1/15

GAHC010038522021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/1860/2021

         PRABIN CH RABHA AND 42 ORS
         S/O. DANDESWAR RABHA, SI OF SCHOOLS, RANGIA UNDER DI OF
         SCHOOLS, RANGIA, R/O. VILL. DUDHNOI THEKASU P.O. AND P.S. DUDNOI,
         DIST. GOALPARA, ASSAM, PIN-783124.

         2: BISWAJIT DEY
          S/O LATE BHUPATI KUMAR DEY SI OF SCHOOLS UNDER DI OF SCHOOLS
          SILCHAR
          CACHAR R/O MOHENDRA NIBAS
          NUTANPATTY
          PO. SILCHAR PS. SILCHAR
          DIST. CACHAR
         ASSAM.PIN-788001.

         3: MANUJ KUMAR KAIRI
          S/O RAMAKANTA KAIRI
          SI OF SCHOOLS
         UNDER DI OF SCHOOLS
          SILCHAR
          CACHAR R/O VILL. PUTHIKHAL
          PO ATHAROTILLA
          PS DHOLAI
          DIST. CACHAR
         ASSAM
          PIN-788115

         4: AJOY KUMAR CHOWHAN
          S/O ARJUN PRASAD CHOWHAN
         SI OF SCHOOLS UNDER DI OF SCHOOLS
          SILCHAR
         CACHAR R/O VILL.16 NO BASTI
          PO.KABUGANJ
          PS.DHOLAI DIST. CACHAR
         ASSAM.PIN-788121.
                                                     Page No.# 2/15


5: JAYANTI PAULM
W/O SRI BHASKAR SENAPATI
 SI OF SCHOOLS
UNDER DI OF SCHOOLS
 SILCHAR
 CACHAR R/O ITKHOLA
 GANDHINAGAR ROAD
 PO.SILCHAR PS.MALUGRAM
 DIST.CACHAR
ASSAM. PIN-788002.

6: MRS LALAWMPUI TUILOR
W/O HAOTINLIEN LHOUVUM SI OF SCHOOLS
UNDER DI OF SCHOOLS
 SILCHAR
 CACHAR R/O PWD- III COLONY
 PO. HAFLONG
 DIST. DIMA HASAO
ASSAM.PIN-788819.

7: PETER CHOUDHURY
 S/O LATE SATYENDRA MOHAN CHOUDHURY SI OF SCHOOLS
 UNDER DI OF SCHOOLS
TEZPUR
 R/O MANIK NAGAR
 PO. NIKAMUL SATRA
 PS. TEZPUR DIST. SONITPUR
 PIN.784001.

8: MUNINDRA GOSWAMI
 S/O SRI HANGSHADHAR GOSWAMI SI OF SCHOOLS
UNDER DI OF SCHOOLS
 RANGIA
 R/O
VILL. NAGAON
 PO HATIMARA

DIST. DARRANG
ASSAM
PIN-784144.

9: RABI CHANDRA SEAL
 S/O SRI MEGHNATH SEAL SI OF SCHOOLS
UNDER DI OF SCHOOLS
TEZPUR
 R/O
WARD NO-1
                                          Page No.# 3/15

NANDHI PARA
SAPATGRAM
DIST-DHUBRI
ASSAM. PIN-783337.

10: NANDINI MUKHERJEE
W/O-SANTANU SUTRADHAR SI OF SCHOOLS
UNDER DI OF SCHOOLS
 KARIMGANJ
 R/O
DISHARI LANE
 MEHERPUR
 NEAR CO-OPERATIVE
 PS. RANGIRKHARI
 DIST. CACHAR
ASSAM
 PIN-788015.

11: PRANOB KR BORA
 S/O NADURAM BORA
 SI OF SCHOOLS

HOJAI
UNDER DI OF SCHOOLS
HOJAI

KATHIATOLI
PS KAMPUR
DIST. NAGAO

ASSAM
PIN-782427.

12: MANISH THAKUR
 S/O UMAPATI THAKUR SI OF SCHOOLS

UNDER DI OF SCHOOLS
 TEZPUR R/O
VILL. SECONEE BORHOLA
 PO
JAKHALABANDHA
 DIST. NAGAON
 PIN-782136.

13: RUBY BHARATY
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
                                               Page No.# 4/15

RANGIA
R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
DIST. GOALPARA
ASSAM
PIN-783124.

14: UDAY BHASKAR SARMA
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

15: BOZLUL BASIT SARKAR
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

16: DIGANTA PATHAK
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

17: SAMARENDRA SAHARIA
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

18: MADHAB PATGIRI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
                                               Page No.# 5/15

RANGIA
UNDER DI OF SCHOOLS
RANGIA
R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
DIST. GOALPARA
ASSAM
PIN-783124.

19: PABITRA TAMULI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

20: RAJENDRA KALITA
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

21: RABINDRA KR. PATHAK
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

22: SAMIUL HAQUE SARKER
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.
                                               Page No.# 6/15

23: SITESWAR NATH
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

24: LACHIT BASUMATARY
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

25: RITA RABHA
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

26: BINOD MORANG
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

27: NISHIPAD DAS
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
                                               Page No.# 7/15

PIN-783124.

28: HONEY CHAMUAH NATH
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

29: BIDYUT GOGOI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

30: UTPOLA GOGOI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

31: RUBI MONI NATH
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

32: KISHORE KR. RAJBONGSHI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
                                               Page No.# 8/15

DIST. GOALPARA
ASSAM
PIN-783124.

33: AJAY KR. CHETRY
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

34: RINTI DIHINGIA
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

35: NILAKSHI RAJKUMARI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

36: MIZANUR RAHMAN BHUYAN
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

37: MONOJ KR. PHUKAN
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
                                               Page No.# 9/15

RANGIA
R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
DIST. GOALPARA
ASSAM
PIN-783124.

38: GEETA DEVI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

39: TANKESWAR GOGOI
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

40: RAKHI SAHU
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

41: LISABELA W. MOMIN
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
 RANGIA
UNDER DI OF SCHOOLS
 RANGIA
 R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
 DIST. GOALPARA
ASSAM
 PIN-783124.

42: ROMESH RAMCHIARY
 C/O SRI PRABIN CH RABHA SI OF SCHOOLS
                                                                                   Page No.# 10/15

            RANGIA
            UNDER DI OF SCHOOLS
            RANGIA
            R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
            DIST. GOALPARA
            ASSAM
            PIN-783124.

            43: PREMA NATH DOLEY
             C/O SRI PRABIN CH RABHA SI OF SCHOOLS
             RANGIA
            UNDER DI OF SCHOOLS
             RANGIA
             R/O VILL. DUDHNOI THEKASU PO AND PS DUDNOI
             DIST. GOALPARA
            ASSAM
             PIN-783124

            VERSUS

            THE STATE OF ASSAM AND ANR
            TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
            EDUCATION (ELEMENTARY) DEPTT., DISPUR, GUWAHATI, ASSAM, PIN-
            781006.

            2:THE DIRECTOR OF ELEMENTARY EDUCATION

             KAHILIPARA
             GUWAHATI-781019

Advocate for the Petitioner   : MR. A K DUTTA

Advocate for the Respondent : SC, ELEM. EDU

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 07-04-2021

JUDGMENT & ORDER (ORAL)

Heard Mr. RP Kakoti, learned senior counsel for the petitioners. Also heard Mr. NJ Khataniar, learned counsel for the Elementary Education Department, Government of Assam.

Page No.# 11/15

2. All the petitioners herein were appointed as Sub Inspectors of School as per the select list dated 23.02.2011 issued by the Director of Elementary Education Assam in a selection process pursuant to an advertisement dated 30.09.2005. Since the initial appointment, the petitioners have been discharging their duties as Sub-Inspectors of School and are posted at different places in the State of Assam. Various writ petitions were instituted by some of the unsuccessful candidates in the selection process assailing the selection and appointment of the petitioners. All the writ petitions were given a final consideration by the judgment and order dated 14.02.2017 in WP(C)No.5975/2014 and other related writ petitions. By the judgment dated 14.02.2017, the appointments of the petitioners as per the advertisement dated 02.10.2005 and the select list dated 01.03.2011 were held to be suffering from certain fundamental flaws rendering them untenable and legally unsustainable. Accordingly, the selection process pursuant to the advertisement dated 02.10.2005 and the resultant select list dated 01.03.2007 as well as the appointments were set aside. The respondents therein were directed to conduct a fresh selection process. It is stated that some of the selected and appointed candidates were made parties in some of the writ petitions, but all the selected and appointed candidates were not before the Court.

3. Be that as it may, the selected and appointed candidates like that of the petitioners carried an appeal against the judgment and order dated 14.02.2017 in WP(C)5975/2014 and other related writ petitions being WA No.106/2017. In the WA No.106/2017, the order dated 26.04.2017 that was passed is extracted as below:

"Mr. D.K. Mishra, learned senior counsel assisted by Mr. M.A.I. Hussain, learned counsel for the appellants.

Mr. N. Sarma, learned Standing Counsel, Elementary Education Department for Respondent Nos.3, 4 and 5.

Heard on admission.

Admit.

Mr. N. Sarma, learned Standing Counsel, Elementary Education Department accepts notice on behalf of for Respondent Nos.3, 4 and 5.

Let notices now be issued to the remaining respondents.

Page No.# 12/15

Steps be taken within one week. Notices be made returnable within eight weeks.

Also heard on interim relief.

Until further orders, we direct that operation of the impugned order dated 14.02.2017 passed by the learned Single Judge in W.P.(C) No.5593 of 2015 shall remain stayed."

4. A reading of the order of the Division Bench dated 26.04.2017 in WA No.106/2017 goes to show that the judgment dated 14.02.2017 of the learned Single Judge in WP(C)No.5593/2015 was stayed. It is stated that WA No.106/2017 is pending and no final adjudication has been made. We have already taken note of that by the judgment dated 14.02.2017, the selection and appointment of the petitioners were set aside and by the order dated 26.04.2017 in WA No.106/2017, the said judgment itself was stayed, meaning thereby, that the judgment dated 14.02.2017 does not continue to remain operative till the continuation of the interim order. As the selection and appointment of the petitioners were set aside by the judgment dated 14.02.2017 in WP(C)5593/2015 and the Division Bench by the order dated 26.04.2017 in WA No.106/2017 had stayed the said judgment, we have to understand that at present the selection and appointments of the petitioners continue to remain in force.

5. In the aforesaid situation, the petitioners had also participated in the process for promotion to the next cadre of Block Elementary Education Officer (for short, BEEO) which is a promotional cadre and the feeder cadre being Sub-Inspectors of School. As the selection and appointment of the petitioners continue to remain in force as Sub-Inspectors of School and in the absence of any further provisions in the order of the Division Bench dated 26.04.2017 in WA No.106/2017, as regards any condition being imposed on the continuation of their appointments as Sub-Inspectors of School, prima facie, no reasons can be found as to why the petitioners would be ineligible to participate in the process for promotion to the next cadre.

6. In this writ petition, the petitioners are aggrieved to the extent that although they were allowed to participate in the process for promotion, but the results thereof had been kept in sealed cover and had not been given its effect. The concept of sealed cover flows from the judgment of the Supreme Court rendered in Union of India and Others Vs. KV Jankiraman and Others reported in (1991)4 SCC

109. In paragraph 16 of the said judgment, the Supreme Court was of the view that the sealed cover procedure is to be resorted to only after the charge- memo/charge-sheet is issued in a case where a Page No.# 13/15

disciplinary/criminal proceeding can be said to have commenced. It also says that pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.

7. In the matter at hand before the Supreme Court in KV Jankiraman (supra), the issue for determination was whether a promotion can be denied to an employee in a situation where some investigation was conducted by the authorities which may have resulted in the issuance of a charge- memo/charge-sheet. The Supreme Court was of the view that it would be unacceptable to deny a promotion merely because a preliminary enquiry was being conducted or contemplated without resulting in the issuance of a charge-memo/charge-sheet.

8. Paragraph 16 of KV Jankiraman (supra) is extracted as below:

"16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows:

"(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official;

           (2) *                   *                    *
           (3 *                    *                    *
                                                                                          Page No.# 14/15

(4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before;"

9. A reading of the proposition laid down by the Supreme Court in paragraph 16 of K V Jankiraman (supra) would go to show that the concept of keeping in abeyance the process of promotion by resorting to the method of sealed cover would be applicable only in cases where the charge-memo/charge-sheet had been issued and the concept of sealed cover would not be applicable to a situation otherwise. In the instant case, there is no material to conclude that any charge- memo/charge-sheet had been issued against the petitioners or even as a matter of fact, it is being contemplated to be so done. The only factual situation attributable to the petitioners is that some unsuccessful candidates have assailed the initial appointment as Sub-Inspectors of School, which was interfered by the learned Single Judge in the judgment dated 14.02.2017 in WP(C)5593/2015, which again has been stayed by the Division Bench in WA No.106/2017 by the order dated 26.04.2017. If the final decision of the writ appellate court would be against the petitioners, their appointment itself would cease to exist and if it is in their favour their appointments would remain in place.

10. In the circumstance, we do not find any reason as to why their promotions should be kept in hold by adopting the sealed cover method, more so, when there is no indication in the Division Bench order dated 26.04.2017 to the contrary. If the petitioners are promoted and ultimately the judgment of the Division Bench goes against them, their appointments itself would cease to exist, meaning thereby that they would be out of service even from their promoted posts.

11. In the circumstance, we have required the respondents in the Elementary Education Department by our earlier order dated 17.03.2021 to make their submissions as to how the sealed cover procedure which flows from the decision of the Supreme Court in KV Jankiraman (supra) would be applicable in the present case and by the subsequent orders of 24.03.2021, 26.03.2021 and 31.03.2021, the said requirement of making the submission by the Department was extended, but no satisfactory explanation is forthcoming from the Department on the aforesaid legal issue.

12. Considering the matter in its entirety, we direct the respondents not to resort to the sealed cover procedure to deny the petitioners from being promoted to the cadre of BEEO, but however, any such promotion being made shall be strictly subject to the outcome of the WA No.106/2017 and if the appointments of the petitioners itself are interfered, so it will be applicable in their service conditions Page No.# 15/15

even on being promoted and no equity shall flow in favour of the petitioners to remain in service merely because in the meantime they stood promoted.

13. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant