Abdul Aziz Ahmed vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2742 Gua

                                                               Page No.# 1/12

GAHC010098172021




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

                           Case No. : WP(C)/3208/2021

         ABDUL AZIZ AHMED
         S/O. LT. KASEM ALI, VILL. CHANDMAMA PATHER, P.O. CHANDMAMA,
         DIST. BARPETA, ASSAM, PIN-781332.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
         (SECTION) DEPTT., DISPUR, GUWAHATI-06.

         2:THE DIRECTOR OF SECONDARY EDUCATION

          ASSAM
          KAHILIPARA
          GUWAHATI-19.

         3:THE INSPECTOR OF SCHOOLS

          BARPETA DISTRICT CIRCLE
          BARPETA
          P.O. AND DIST. BARPETA
          PIN-781335.

         4:THE STATE SELECTION BOARD (FOR SELECTION OF PRINCIPAL OF
         HIGHER SECONDARY SCHOOLS)

         REP. BY THE CHAIRMAN CUM COMM. AND SECY. TO THE GOVT. OF
         ASSAM
         EDUCATION (SECONDARY) DEPTT.
         DISPUR
         GUWAHATI-06.
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            5:THE SCHOOL SELECTION COMMITTEE OF ABBAS ALI CHOUDHURY
            MEMORIAL H.S. SCHOOL

            REP. BY THE CHAIRMAN CUM PRESIDENT OF THE SCHOOL MANAGING
            COMMITTEE
            P.O. BALAGAON
            DIST. BARPETA
            ASSAM
            PIN-781319.

            6:RAFIK AHMED
             S/O. ISMAIL HUSSAIN
            VILL. RAJAKHAL
             P.O. CHAPERBARI
             P.S. AND DIST. BARPETA
            ASSAM
             PIN-781352

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 09-11-2021

JUDGMENT & ORDER (ORAL)

Heard Mr. HRA Choudhury, learned senior counsel for the petitioner. Also heard Mr. SMT Chistie, learned counsel for the respondents No.1, 2, 3 and 4 being the authorities under the Secondary Education Department, Government of Assam and Mr. A Dey, learned counsel for the respondent No.5 being the authorities under the Abbas Ali Choudhury Memorial Higher Secondary School and Mr. RP Kakoti, learned senior counsel for the respondent No.6.

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2. The petitioner is aged about 59 years and it is stated that he would retire from service upon attaining the age of superannuation on 03.02.2022. Considering the date of retirement of the petitioner, we take this writ petition with urgency, so that, in the event, the dispute goes in favour of the petitioner he may avail the benefits that he would otherwise have been entitled under the law.

3. The petitioner was appointed as an assistant teacher in the Howly High School in the intermediate scale of pay on 28.04.1990 as per the order of the Inspector of Schools, Barpeta and it is stated that the initial appointment of the petitioner was made by following the due procedure of law. As per the letter dated 16.11.1991 of the Government, the petitioner was upgraded to the post of science graduate teacher in the graduate scale of pay against a science graduate post which was created as per the order dated 28.03.1992. By a subsequent order of 28.03.1992, the petitioner was transferred and posted in the Barbhitha Higher Secondary School against a vacant post of science graduate teacher.

4. It is stated that since then the petitioner is continuously serving as a science graduate teacher in the Barbhitha Higher Secondary. A re- advertisement/corrigendum was issued by the Member Secretary of the School Selection Committee of Abbas Ali Choudhury Memorial Higher Secondary School inviting applications for the post of Principal of the school. It is stated that the re-advertisement was made upon cancelation of the earlier advertisement made on 03.03.2009. The petitioner participated in the said selection process along with the respondent No.6 Rafik Ahmed. The statement of marks allotted by the Page No.# 4/12

School Selection Committee in the selection process reflects that the respondent No.6 Rafik Ahmed was given a total of 18 marks out of 30 and for the criteria 'experience as graduate teacher and experience as in-charge Principal', respondent No.6 Rafik Ahmed was not given any marks. Similarly, in respect of the petitioner also no marks was given for the criteria 'experience as graduate teacher and experience as in-charge Principal'.

5. Mr. HRA Choudhury, learned senior counsel for the petitioner refers to the Office Memorandum dated 01.08.2017 which provides for six marks to be given in the selection process for the criteria 'experience'. The Office Memorandum dated 01.08.2017 provides that for experience as graduate teacher one mark would be given for every two years of experience beyond the experience of 17 years, subject to a maximum of three marks and for the criteria experience as in-charge Principal, the Office Memorandum of 01.08.2017 provides for one mark for each year of experience subject to a maximum of three marks. It is the claim of the petitioner that he was a graduate teacher for a period of 27 years at the time of participation in the selection process and leaving out 17 years from the experience of 27 years, the petitioner is entitled to one mark for every two years of experience with a maximum of three marks for his balanced 10 years.

6. The petitioner was the in-charge Principal of Barbhitha Higher Secondary School from the year 2016 and, therefore, he is entitled to one mark for each year of experience as in-charge Principal subject to maximum of three years. The petitioner for his experience as an in-charge Principal from 2016 claims to be entitled to another two marks. The grievance raised by the petitioner is that Page No.# 5/12

in the statement of marks prepared by the School Selection Committee, three marks of experience as a graduate teacher and two marks as in-charge Principal have not been awarded to the petitioner.

7. It is noticed from the statement of marks that the petitioner had secured 14 marks, whereas the respondent No.6 Rafik Ahmed has secured 18 marks. Had the five marks been given to the petitioner, three marks against his experience as a graduate teacher and two marks for his experience as in-charge Principal, the total marks to be awarded to the petitioner would have been 19 and, therefore, he would have been the first candidate in order of merit.

8. Mr. A Dey, learned counsel for the authorities of Abbas Ali Choudhury Memorial Higher Secondary School has raised the contention that in his application form, the petitioner had not submitted the relevant document to indicate that he had 27 years of experience as a graduate teacher and secondly that he had the experience of being the in-charge Principal from the year 2016. As the relevant materials were not available, therefore, the marks were not given in respect of the aforesaid categories and, accordingly, 14 marks awarded would be correct marks in respect of the petitioner.

9. The petitioner has raised another contention that the Director of Secondary Education Assam while considering the selection process for the purpose of its approval had arrived at the conclusion that the relevant certificates were produced by the petitioner in the selection process, but the same were not taken into consideration by the School Selection Committee.

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10. Considering the nature of the disputes raised, we required the Director of Secondary Education Assam as well as the School authorities of Barbhitha Higher Secondary School to produce the original records from which the rival satisfactions were arrived. As noted, the school authorities were of the view that the required certificates indicating the experience of the petitioner as graduate teacher and his experience as being the in-charge Principal were not submitted by the petitioner along with the application form whereas the Director was of the view that the required certificates were available, but was not considered by the School Selection Committee.

11. A perusal of the records produced by the Director of Secondary Education Assam reveals that there is an order dated 10.09.2019 of the Director of Secondary Education Assam in arriving at his satisfaction that the required certificates were submitted by the petitioner. A reading of the order goes to show that such conclusion was arrived at by the Director on the basis that the Member Secretary of the School Selection Committee informed that during the interview Abdul Aziz Ahmed did not produce the experience certificate as graduate teacher as well as the order of appointment as in-charge Principal and on the other hand, the petitioner Abdul Aziz Ahmed insisted that he had produced the documents, but the School Selection Committee did not record and are now denying.

12. Be that as it may, the conclusion arrived at by the Director of Secondary Education Assam in the order dated 10.09.2019 is that the petitioner Abdul Aziz Ahmed is eligible for selection for the post of regular Principal of Abbas Ali Page No.# 7/12

Choudhury Memorial Higher Secondary School. We have taken note that the procedure for selection and appointment of a regular Principal of a Higher Secondary School is governed by Rule 13 of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (for short, the Rules of 2003). Rule 13 of the Rules of 2003 is extracted as below:

"13. Procedure of selection of Principals- (1) Before the end of each year, the Member Secretary of the School Selection Committee shall invite applications from the intending eligible candidates through an advertisement to be published at least in two widely circulated local news papers.

(2) On receipt of applications from the eligible candidates the School Selection Committee constituted under rule 8(4) after scrutiny of the applications, shall hold an interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality.

(3) The panel of names so prepared by the School Selection Committee shall be forwarded through the concerned Inspector of Schools to the State Selection Board constituted under rule 16 for approval.

(4) After receipt of the panel under sub-rule (3) the State Selection Board shall prepare a Select List equal to the number of vacant posts taking into consideration such as leadership skills, administrative ability, integrity and commanding personality. The penal of names so prepared and recommended by the State Selection Board shall be submitted to the Government, which may after causing such verification as may be deemed necessary, shall accord approval for appointment.

(5) The Select List so prepared and approved shall be in force for one year from the date of its approval by the Government :

Provided that if the School Selection Committee fails to prepare penal of names under sub-rule (2) within 6 months from the date of vacancy arises, the State Selection Board shall make the selection and prepare the penal of names following such procedure as laid down Page No.# 8/12

under rule 13. "

13. Rule 13(1) provides that the Member Secretary of the School Selection Committee shall invite applications from the intending eligible candidates through an advertisement to be published in at least two widely circulated local newspapers. Rule 13(2) provides that upon receipt of the application, the School Selection Committee shall scrutinize the applications, hold an interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality. In other words, the jurisdiction vested in the School Selection Committee is to prepare a panel of three candidates amongst the various applications pursuant to the advertisement. Rule 13(3) provides that the panel of names so prepared by the School Selection Committee shall be forwarded to the State Selection Board through the concerned Inspector of School.

14. In the instant case, as noticed above, there were admittedly five applicants before the State Selection Board, namely, the respondent No.6 Rafik Ahmed, Dheren Chandra Ghosh, Lal Mamud Khan, the petitioner Abdul Aziz and Solimuddin Ahmed. The School Selection Committee had awarded 18, 17 and 16 marks respectively to the respondent No.6 Rafik Ahmed, Dheren Chandra Ghosh and Lal Mamud Khan, while it awarded 14 marks to the petitioner Abdul Aziz Ahmed. In other words, in order to prepare the panel list of three names as per the marks awarded by the Selection Committee, it would have to be respondent No.6 Rafik Ahmed, Dheren Chandra Ghosh and Lal Mamud. But, in the meantime, as there was a challenge by the petitioner Abdul Aziz Ahmed in the award of the marks by the School Selection Committee to the extent that five Page No.# 9/12

marks were illegally not allotted to the petitioner towards his experience as graduate teacher and as in-charge Principal, there is an order by the Director of Secondary Education Assam dated 10.09.2019 wherein it was concluded that the petitioner Abdul Aziz Ahmed was entitled to the marks towards such experience. If the petitioner was entitled to the marks towards experience as graduate teacher and as in-charge Principal, admittedly, five marks would be added to the 14 marks awarded to him. The result thereof would be that he would be entitled to 19 marks. If the petitioner would be entitled to 19 marks, he would definitely be included within the three candidates in the panel to be prepared by the School Selection Committee. At this stage, we specifically take note of that the order of the Director dated 10.09.2019 had not been assailed by any person and the same remains on record and has attained its finality.

15. In the meantime, the respondent No.6 had instituted WP(C)No.7535/2019, raising the grievance that although otherwise he is the candidate No.1 as per the selection of the School Selection Committee, the decision of the School Selection Committee has not been accepted by the State Selection Board inasmuch as, the writ petitioner Abdul Aziz Ahmed by claiming certain extra benefit has put a hurdle in the selection process. The Court by the order dated 03.10.2019 had required the respondent authorities therein to take an appropriate decision at the earliest. In doing so, the Court in the order dated 03.10.2019 had also observed that if the recommendation of the School Selection Committee is contrary to the existing Rules and Regulations, the matter may be returned back to the School Selection Committee for taking a fresh decision taking into account all relevant factors. Such observation by the Court definitely would have also included the decision of the Director in its order Page No.# 10/12

dated 10.09.2019 which also has been taken into account. But what happened after the order dated 03.10.2019 in WP(C)No.7535/2019 is that the Inspector of Schools, Barpeta by the communication dated 12.03.2020 required the Member Secretary of the School Selection Committee to resubmit a fresh proposal with a recommendation at an early date so that the same can be placed before the State Selection Board. In the communication, the Inspector of Schools Barpeta specifically provided that the original proposal of selection of a regular Principal was returned to the School Selection Committee for a fresh selection by taking into consideration all relevant factors which had earlier not been taken into consideration. The said requirement of taking all relevant factors into consideration would also definitely include the order dated 10.09.2019 of the Director. But what is noticed is that in response thereof, the authorities of the Abbas Ali Choudhury Memorial Higher Secondary School had again sent the names of the three candidates Rafik Ahmed, Dheren Chandra Ghosh and Lal Mamud to be the panel list for consideration by the State Selection Board. The records of the State Selection Board reveals that the only three candidates being Rafik Ahmed, Dheren Chandra Ghosh and Lal Mamud were considered and out of the three the respondent No.6 herein Rafik Ahmed was found to be the most suitable. The mischief appears to have been done at that stage when the School Selection Committee did not sent the corrected list of panel candidates with reference to the order of the Director dated 10.09.2019 and as required by the order dated 03.10.2019 in WP(C)No.7535/2019 and instead had sent the earlier list of three candidates who were included in the panel. The result thereof is that the legal right of the petitioner stood violated. As there is a procedural aberration in sending the names by the School Selection Committee by not sending the names of the petitioner as one of the panel candidates by following Page No.# 11/12

the order of the Director dated 10.09.2019 and the order dated 03.10.2019 in WP(C)No.7535/2019, the School Selection Committee having resorted to its earlier stand, we are of the view that the subsequent decision by the State Selection Board as well as the subsequent approval by the Government in the recommendation and appointment of the respondent No.6 Rafik Ahmed as the regular Principal of Abbas Ali Choudhury Memorial Higher Secondary School would also stand vitiated. Accordingly, the select list prepared by the State Selection Board, the approval granted by the Government vide letter No.ASE 280/2020/81 dated 04.06.2021 as well as the order of appointment of the respondent No.6 as the Principal of Abbas Ali Choudhury Memorial Higher Secondary School stands interfered. But, however, as the respondent No.6 was appointed as the regular Principal by following a procedure although there may have been procedural aberration in doing so, we allow the respondent No.6 to remain the Principal of the school concerned, till such subsequent decision is taken on the appointment of the regular Principal of the school to the requirement to be provided hereinbelow:

The School Selection Committee shall now send the panel of three names by incorporating the marks in respect of the petitioner by taking note of the order of the Director dated 10.09.2019. The said panel list be transmitted to the State Selection Board for its selection under Rule 13(4) of the Rules of 2003. Upon such further selection list being prepared, the Government may approve the same and thereafter act upon it to make the appointment of the regular Principal of the school. As the petitioner would be retiring from service on 03.02.2022, we are of the view that there is also an urgency in the matter because otherwise, if ultimately the petitioner is found eligible and the process is delayed beyond his date of retirement, the legal right of the petitioner would Page No.# 12/12

be frustrated.

16. Accordingly, the School Selection Committee shall do the needful in sending the correct panel list on or before 16.11.2021 and upon the same being forwarded the Director of Secondary Education Assam shall do the needful of placing the panel list prepared by the School Selection Committee before the State Selection Board on or before 23.11.2021. Upon the select list being prepared by the State Selection Board, the Government shall give its consideration for approval on or before 30.11.2021. All the authorities are required to take up the matter on urgent basis considering the factual background as indicated hereinabove.

17. After such approval, the resultant order of appointment be issued thereafter on or before 07.12.2021.

18. Writ petition stands allowed in the above terms. Send back the records.

JUDGE

Comparing Assistant