Rezia Khatun vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2069 Gua

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GAHC010126952020




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

                                 Case No. : WP(C)/3964/2020

            REZIA KHATUN
            I/C PRINCIPAL RANGJULI HS SCHOOL RANGJULI W/O NURBAKHATA
            SHEIKH, R/O VILLAGE THEKASU PART I, DUDHNOI, PO AND PS DUDHNOI,
            DIST GOALPARA, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
            OF ASSAM, EDUCATION(SECONDARY) DEPARTMENT DISPUR GUWAHATI

            2:THE DIRECTOR OF SECONDARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI 19

            3:STATE SELECTION BOARD
            ASSAM
             REPRESENTED BY THE CHAIRMAN CUM COMMISSIONER AND
            SECRETARY TO THE GOVT. OF ASSAM
             EDUCATION(SECONDARY) DEPARTMENT
             DISPUR GUWAHATI 6

            4:F H CHOUDHURY
             JOINT SECRETARY TO THE GOVT. OF ASSAM
             SECONDARY EDUCATION DEPARTMENT DISPUR GUWAHATI

Advocate for the Petitioner   : MR. S K DAS

Advocate for the Respondent : SC, SEC. EDU.
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Linked Case : WP(C)/4019/2017

REZIA KHATUN
W/O. NURBAKHTA SHEIKH
R/O. VILL. THEKASU PART-I
DUDHNOI
P.O. and P.S. DUDHNOI
DIST. GOALPARA
ASSAM.


VERSUS

THE STATE OF ASSAM and 6 ORS.
REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF
ASSAM
SECONDARY EDUCATION DEPTT.
DISPUR
GUWAHATI-06.

2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM

KAHILIPARA
GUWAHATI-19.
3:THE INSPECTOR OF SCHOOLS

GOALPARA DIST. CIRCLE
GOALPARA
P.O. and DIST. GOALPARA
ASSAM.
4:THE SCHOOL SELECTION COMMITTEE

REPRESENTED BY ITS CHAIRMAN LAKSHMAN CH. RABHA
P.O. RANGJULI
P.S. RANGJULI
DIST. GOALPARA
ASSAM
PIN-783130.
5:THE SCHOOL MANAGING COMMITTEE

RANGJULI H.S. SCHOOL
RANGJULI
REP. BY ITS PRESIDENT LAKSHMAN CH. RABHA
P.O. RANGJULI
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          P.S. RANJGULI
          DIST. GOALPARA
          ASSAM
          PIN-783130.
          6:KAMAL NARAYAN BARUAH

         ASSTT. TEACHER
         RANGJULI H.S. SCHOOL
         P.O. RANGJULI
         P.S. RANGJULI
         DIST. GOALPARA
         ASSAM
         PIN-783130.
         7:THE STATE LEVEL SELECTION COMMITTEE

         REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF
         ASSAM
         SECONDARY EDUCATION DEPTT.
         DISPUR
         GUWAHATI-06
         ------------

Advocate for : MR.A R SIKDAR Advocate for : MR.T J MAHANTA Sr.Adv.R-6 appearing for THE STATE OF ASSAM and 6 ORS.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 04-09-2021

JUDGMENT & ORDER (ORAL)

Heard Mr. SK Das, learned counsel for the petitioner. Also heard Mr. R Mazumdar, learned counsel for the respondents No.1, 2, 3, and 4 in WP(C)No.3964/2020 and respondents No.1, 2, 3 and 7 in WP(C)No.4019/2017 being the authorities under Secondary Education Department, Government of Assam. None appears for the respondents No.4, 5 and 6 in WP(C)No.4019/2017.

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2. WP(C)No.4019/2017 was instituted by the petitioner Rezia Khatun assailing the appointment of the respondent No.6 Kamal Narayan Baruah as the Principal of Rangjuli HS School. The petitioner also participated in the selection process and in the resultant select list dated 24.02.2017, the petitioner appeared at Sl.No.2, whereas the respondent No.6 Kamal Narayan Baruah was at Sl.No.1. The selection of Kamal Narayan Baruah was assailed on the ground that certain marks were wrongly given to the said person, whereas on the contrary some marks were incorrectly not given to the petitioner. Had the marks been allotted in the proper manner, according to the petitioner, it is the petitioner who would have been at Sl.No.1 and consequently she would have been the beneficiary of the appointment as the Principal of the concerned school. Further had the said writ petition been decided on its own merit, it would have been in favour of the petitioner and the petitioner could have been given the appropriate relief and the question as to whether the select list would have remained valid or not would have been irrelevant as per the law laid down by the Supreme Court in several decisions providing for that if an appropriate proceeding is initiated during the validity of the select list, the Court can always act upon such select list when such proceedings are finally decided.

3. But before the WP(C)No.4019/2017 could be decided, Kamal Narayan Baruah, the person in whose favour the order of appointment as the Principal of Rangjuli HS School was made, died on 24.10.2018. On his death, the dispute raised in WP(C)No.4019/2017 could no longer be decided, inasmuch as, in the matter at hand, when Kamal Narayan Baruah died, the right to sue or to be sued in order to substitute the legal heirs did not survive.

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4. In the circumstance, the petitioner instituted IA(C)No.4057/2018 bringing to the notice of the Court that as Kamal Narayan Baruah had died in the meantime, therefore, there is no further requirement to adjudicate upon the dispute against the order by which he was appointed as the Principal of the school. In the said interlocutory application, a statement was made by Mr. SK Das, learned counsel for the applicant/writ petitioner that the select list concerned was still valid and the petitioner being a selected candidate whose name appeared at Sl.No.2, a right had accrued to the petitioner for being considered pursuant to the said select list. Upon such submission on the part of the learned counsel for the petitioner, it was provided in the order dated 03.12.2018 in IA(C)No.4057/2018 that if it is so, the petitioner is given the liberty to make an application before the Director of Secondary Education, Assam, who upon such application being made shall pass a reasoned order thereon.

5. The relevant paragraph of the order dated 03.12.2018 passed in IA(C)No.4057/2018 is extracted below:

"Accordingly, Mr. SK Das, learned counsel for the petitioner states that as the validity of the said select list is still on and the petitioner being a selected candidate appearing at Sl.No.2, a right had accrued to the petitioner to be considered for appointment pursuant to the said select list. If that is so, the petitioner is given the liberty to make an application before the Director of Secondary Education, Assam who upon such application being made shall pass a reasoned order thereon".

6. As provided in the order dated 03.12.2018, the petitioner submitted his application.

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7. The said application of the petitioner seeking appointment pursuant to the earlier select list dated 24.02.2017 was placed before the State Selection Board for selection of the Principal in its meeting dated 20.09.2019. As per the resolution of the State Selection Board of 20.09.2019, a separate proposal was submitted to the Government. The proposal referred by the State Selection Committee contained in the communication dated 20.01.2020 wherein the background facts as indicated above was recorded and accordingly the Director of Secondary Education Assam submitted a proposal in the name of the petitioner Rezia Khatun for grant of approval by the Government for appointment as regular Principal of Rangjuli HS School. But by the communication dated 18.05.2020 from the Joint Secretary to the Government of Assam in the Secondary Education Department to the Director of Secondary Education, Assam, it was informed that as the select list dated 24.02.2017 was no longer valid after the expiry of one year from its date, the approval by the Government sought for in the proposal to appoint the petitioner as Principal of Rangjuli HS School stood rejected.

8. The said rejection of approval of the petitioner by the communication dated 18.05.2020 is assailed in WP(C)No.3964/2020.

9. Mr. SK Das, learned counsel for the petitioner has raised the contention that the Court in its order dated 03.12.2018 in IA(C)No.4057/2018 had extended the validity of the select list dated 24.02.2017 and, therefore, it was incorrect on the part of the Government to reject the approval on the ground that the validity of the select list already came to an end. In the context of the Page No.# 7/9

said contention, we again look at the relevant paragraph of the order dated 03.12.2018 in IA(C)No.4057/2018. A reading of the order dated 03.12.2018 in IA(C)No.4057/2018 goes to show that the statement of the learned counsel for the petitioner was recorded that the validity of the select list was still on and, therefore, the petitioner had a legal right to be considered for appointment as a Principal pursuant to the said select list as she was at Sl.No.2. But that was neither a finding nor a conclusion of the Court. The Court had arrived at a conclusion that if such contention raised by the petitioner was correct, then liberty was granted to the petitioner to move an application before the Director of Secondary Education, Assam who shall pass a reasoned order thereon. If the government in the Secondary Education Department after verification of the record had arrived at a conclusion that the select list had already expired and, therefore, no such approval for appointment of the petitioner can be granted, the Government would be within its own competence to pass such order as long as it was factually correct. No record has been placed before the Court that such satisfaction arrived at by the Government that the select list had already expired, was incorrect. From such point of view, we do not find any reason to interfere with the decision of the Government not to approve the petitioner as the Principal of the Rangjuli HS School on the strength of being at Sl.No.2 of the select list dated 24.02.2017.

10. It is stated that the petitioner had legitimately assailed the appointment of Kamal Narayan Baruah within the validity of the select list dated 24.02.2017. We reiterate that the petitioner may have had a legitimate claim had the WP(C)No.4019/2017 being brought to its logical end and had Kamal Narayan Baruah not died prior to the said writ petition being decided on merit. We Page No.# 8/9

understand that the petitioner is technically in a difficult situation because of the untimely death of Kamal Narayan Baruah and had he not died his legal right could have been appropriately adjudicated upon.

11. It is stated that the implication of the Government refusing to approve the petitioner as the Principal of Rangjuli HS School would be that the said post would be a vacant post requiring fresh selection process. It is further stated that because of the aforesaid intervening circumstances, the petitioner had, in the meantime, become over-age for the post of Principal as the present norms prescribes a maximum age of 57 years for being eligible for the post of Principal.

12. We invoke our discretionary power under Article 226 of the constitution of India to condone the over-age of the petitioner because of the circumstance under which he became over-aged. If any fresh selection process is initiated requiring the respondents to accept the candidature of the petitioner, and if the petitioner offers her candidature in such selection process, the same shall be decided on its own merit and the candidature of the petitioner shall not be rejected on the ground of being over-age.

13. It is stated that in the circumstance, the petitioner is also functioning as the in-charge Principal of the Rangjuli HS School. Till any such regular selection is made and that too, if at all it is made, we further provide that the petitioner shall continue as the in-charge Principal of the school concerned in the manner she is presently continuing.

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14. In terms of the above, the writ petitions stand disposed of.

JUDGE

Comparing Assistant