Lalon Prosad Das vs The State Of Assam And 2 Ors
2021 Latest Caselaw 2079 Gua

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GAHC010025342020




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

                               Case No. : WP(C)/834/2020

            LALON PROSAD DAS
            R/O- RAKHAL KHALER PAR, P.O- RAKHAL KHALER PAR, P.S- SILCHAR,
            DIST- CACHAR, PIN- 788025, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. BY THE COMMISSIONER AND SECRETARY (SECONDARY), GOVT OF
            ASSAM, EDUCATION DEPTT, DISPUR, GUWAHATI- 06, ASSAM

            2:THE DIRECTOR OF EDUCATION (SECONDARY)
             GOVT OF ASSAM
             KAHILIPARA
             GUWAHATI- 19
            ASSAM

            3:THE INSPECTOR OF SCHOOLS
             CDC
             SILCHAR
             DIST- CACHAR
             PIN- 78802

Advocate for the Petitioner   : MRS N SAIKIA

Advocate for the Respondent : SC, SEC. EDU.

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 06-09-2021

JUDGMENT & ORDER (ORAL) Heard Mrs. N Saikia, learned counsel for the petitioner and Mr. R Mazumdar, learned counsel for the respondents in the Secondary Education Department of the Government of Assam.

2. An advertisement dated 24.08.2019 was issued by the Principal of Nikama Higher Secondary School, Ganganagar, Cachar inviting applications from intending candidates for the post of Principal of the school. The advertisement inter-alia provided that the candidate must possess, amongst others, at least 15 years of service as Post Graduate teacher or Vice Principal or both in any of the provincialised Higher Secondary School or must have 17 years of teaching experience as a Graduate Teacher in any provincialised Higher Secondary School.

3. It is stated that the relevant provisions of the Rules of 2003 was assailed by some of the intending candidates resulting in WP(C) No.2632/2014 wherein the exclusion of the Graduate Teachers of High Schools and Multipurpose Schools from such participation was assailed. The WP(C) No.2632/2014 was given a final consideration by the judgment dated 17.01.2019 providing for that even Graduate Teachers of the High Schools and Multipurpose Schools are equally eligible to participate in the selection process for the post of Principal of a Higher Secondary School.

4. As the advertisement dated 24.08.2019 was contrary to what was provided by the judgment dated 17.01.2019 in WP(C) No.2632/2014, one of the Page No.# 3/7

intending candidate namely Kamaleshwar Choudhury had instituted WP(C) No.8711/2019 assailing the advertisement dated 24.08.2019 to be in conflict with the provision of the judgment of the Division Bench.

5. Mrs. N Saikia, learned counsel for the petitioner takes a stand that the advertisement dated 24.08.2019 was subsequently replaced by another advertisement dated 25.08.2019. But we have been told that it was done so because of a minor discrepancy to the extent that the advertisement of 24.08.2019 was issued in the name of Abinoy Chanda being the Principal whereas the correct name of the Principal ought to have been Abinoy Kr Chanda and accordingly the correction had taken place by the subsequent advertisement dated 25.08.2019. But otherwise both the advertisements remain the same advertisement except for the aforesaid minor correction.

6. Be that as it may, by the judgment dated 29.11.2019 in WP(C) No.8711/2019, which was instituted by Kamaleshwar Choudhury, in paragraph 4 thereof, the advertisement dated 24.08.2019 was set aside with a direction to the respondents to issue a fresh advertisement. In paragraph 5 of the said judgment, it was further provided that the provisions of the Division Bench in the judgment dated 17.01.2019 should also be incorporated in all such other advertisements that may be issued by the respondent authorities. In paragraph 7 of the said judgment, it was also provided that as and when the subsequent advertisement would be issued, the qualification taken note of by the Division Bench in WP(C) No.2632/2014 should be incorporated and all such advertisements which are contrary to the directions of the Division Bench are to be recalled by the concerned school authorities. But, however, before the judgment dated 29.11.2019 could be placed on record, the selection process pursuant to the advertisement dated 24.08.2019 was brought to its logical end Page No.# 4/7

and an order dated 13.01.2020 was issued appointing the present writ petitioner as a regular Principal of Nikama Higher Secondary School. In the meantime, the person who had instituted WP(C) No.8711/2019, namely Kamaleshwar Choudhury had participated in a selection process for a post of Principal in some other school and got himself selected and appointed. It is stated that he was appointed as a Principal of Korora Higher Secondary School. Kamaleshwar Choudhury upon being selected and appointed as a Principal of Korora Higher Secondary School had given an undertaking to the Driector of Secondary Education, Assam that he had instituted WP(C) No.8711/2019, which resulted in the judgment dated 29.11.2019 by which the advertisement dated 24.08.2019 was set aside. Kamaleshwar Choudhury also stated that he filed other writ petitions WP(C) No.790/2019, WP(C) No.6261/2017 and Contempt Case No.467/2019. In the circumstance, as per the undertaking to the Director which was dated 22.01.2020, Kamaleshwar Choudhury had given the undertaking that he will not make any claim whatsoever about the ongoing process of selection and appointment of the Principal of Nikama Higher Secondary School i.e. the school where the petitioner was selected and appointed.

7. A reading of the undertaking would go to show that although there was a judgment of this Court setting aside the judgment dated 24.08.2019, Kamaleshwar Choudhury by virtue of his undertaking seeks to influence the Director requiring him to continue with the selection process pursuant to the said advertisement dated 24.08.2019, which was earlier set aside. In doing so, it prima-facie appears to us that Kamaleshwar Choudhury had committed an willful and deliberate violation of the judgment of this Court dated 29.11.2019 in WP(C) No.8711/2019.

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8. In view of such prima-facie satisfaction, let a contempt notice be issued to Kamaleshwar Choudhury, the writ petitioner of the WP(C) No.8711/2019. Registry to do the needful for issuing the notice in the present address of Kamaleshwar Choudhury to be provided by Mr. R Mazumdar, learned counsel for the Secondary Education Department.

9. After the undertaking of Kamaleshwar Choudhury dated 22.01.2020, the Director of Secondary Education, Assam issued another order dated 14.02.2020. In the order dated 14.02.2021, the Director had acted upon the undertaking/NOC dated 22.01.2020 of Kamaleshwar Choudhury and a request was made to the Senior Standing Counsel for filing of a review petition against the judgment dated 29.11.2019 in WP(C) No.8711/2019.

10. It is stated that in spite of it, no such review has been filed as of date. But, however, the Director by taking note of the aforesaid circumstance allowed the writ petitioner Lalon Prosad Das to join in the post of regular Principal of Nikama Higher Secondary School.

11. On the basis of the two orders of appointment dated 02.01.2020 and the subsequent order of 14.02.2020 of the Director of Secondary Education, Assam, the petitioner now instituted this writ petition for a writ in the nature of mandamus to allow the petitioner to join as the regular Principal of Nikama Higher Secondary School.

12. The relief sought for by the petitioner cannot be granted inasmuch as, the advertisement dated 24.08.2019 pursuant to which the petitioner was selected and appointed as the Principal, had been set aside by this Court in the judgment dated 29.11.2019 in WP(C) No.8711/2019. If we do it, we will be going against our own earlier order and taking a contrary view without any Page No.# 6/7

reason, more so, in the circumstance that no review had also been filed by the Director of Secondary Education, Assam.

13. From such point of view, we are unable to accept the contention of the petitioner to allow him to join as the regular Principal of the Nikama Higher Secondary School. But considering the matter in its entirety, we take note of that the petitioner was selected and appointed pursuant to an advertisement dated 24.08.2019. The said advertisement may have been set aside by the Court by the judgment dated 29.11.2019 in WP(C) No.8711/2019, but the petitioner had participated and competed in otherwise a regular selection process and had it not been the act of Kamaleshwaar Choudhury in assailing that advertisement, the selection and appointment of the petitioner would otherwise had been a good regular selection.

14. It is stated that although the Division Bench had declared the law as such, but in respect of many other advertisements, which did not incorporate the provisions of the Division Bench, such advertisements were allowed to proceed and brought to its logical end and appointments have been made. But there was a pick and choose by Kamaleshwar Choudhury in assailing the advertisement to the extent that only the advertisement of 24.08.2019 in respect of Nikama Higher Secondary School was assailed.

15. Be that as it may, considering the matter in its entirety as the judgment dated 29.11.2019 in WP(C) No.8711/2019 had attained its finality, we are bound by it and accordingly, direct the respondents to issue a fresh advertisement in respect of the post of Principal of Nikama Higher Secondary School forthwith and not later than 15(fifteen) days from today.

16. The aforesaid requirement would be communicated by Mr. R Mazumdar, Page No.# 7/7

learned counsel for the Secondary Education Department. In such advertisement, the petitioner Lalon Prosad Das will also be allowed to participate and because of the intervening circumstance if there is a change in the law regarding the eligibility condition, the petitioner Lalon Prosad Das shall not be disallowed to participate in such advertisement because of such change in the law and for the purpose would be governed by the eligibility conditions provided by the law as it stood when the earlier advertisement of 24.08.2019 was issued.

17. The advertisement be issued within a period of fifteen days from today and the same be completed within a period of two months thereafter.

18. In terms of the above, the writ petition stands disposed of.

JUDGE

Comparing Assistant