Jiyarul Hoque vs The State Of Assam And 5 Ors
2022 Latest Caselaw 4843 Gua

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GAHC010003512018




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

                            Case No. : WA/44/2018

         JIYARUL HOQUE
         S/O MD. ABDUL GAFUR.
         RESIDENT OF VILLAGE DABALIAPARA ,P.O. DABALIAPARA , P.S.
         BARPETA, DIST. BARPETA, ASSAM PIN -781316.



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETRY TO THE
         GOVERNMENT OF ASSAM
         SECONDARY EDUCATION DEPARTMENT. DISPUR, GUWAHATI -06.

         2:THE DIRECTOR
         SECONDARY EDUCATION
         ASSAM KAHILIPARA
          GUWAHATI- 19

         3:THE INSPECTOR OF SCHOOL
          BARPETA
          DISTRICT- BARPETA
         ASSAM

         4:THE MANAGING COMMITTEE
          DABALIAPARA HIGH SCHOOL
          DABALIAPARA
         DIST. BARPETA
         ASSAM TO BE REPRESENTED BY ITS PRESIDENT MD .ABDUL RASHID
          SON OF LATE MOSTOM ALI SARKAR VILL. DABALIAPARA
          P.O.DABALIPARA
         P.S. BARPETA
          DIST. BARPETA
         ASSAM PIN. 781316.
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           5:THE CHARIRMAN SELECTION COMMITTEE
            (CONSTITUTED FOR THE PURPOSE OF SELECTING THE GRATE IV
           EMPLOYEE)
           TO BE REPRESENTED BY THE HEADMASTER MD. JAHIRUL HOQUE
            SON OF LATE HAJI DARBESH ALI
            VILLAGE DABALIAPARA
           P.O.DABALIAPARA
            P.S. BARPETA DIST .BARPETA
           ASSAM PIN 781316

           6:MD MAJID KHAN
            S/O .MD HATEM KHAN
           RESIDENT OF VILLAGE -DABALIAPARA P.O. DABALIAPARA P.S. BARPETA
            DIST BARPETA ASSAM PIN 781316

Advocate for the Petitioner : MR. S K TALUKDAR
Advocate for the Respondent : SC, SEC. EDU.(R1TO3)

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON'BLE MR. JUSTICE SOUMITRA SAIKIA 08-12-2022 R.M. Chhaya, C.J.

Heard Mr. J.M.A. Choudhury, learned counsel for the appellant. Also heard Mr. R. Mazumdar, learned standing counsel, Education, for the respondent Nos.1, 2 and 3 and Mr. Alom Geer, learned counsel for the respondent No.6.

2. Feeling aggrieved and dissatisfied by the judgment and order dated 06.12.2017 passed by the learned Single Judge in WP(C) 1075/2013, the original writ petitioner has preferred this intra-Court appeal.

3. The facts arising in this appeal relate back to the advertisement dated 01.10.2012 as well as the corrigendum dated 25.10.2012 for recruitment to the post of Grade-IV in Dabaliapara High School in the district of Barpeta. It is the Page No.# 3/5

case of the appellant that Dabaliapara High School is a provincialised high school and the recruitment in the said school is governed by the Assam Secondary Education (Provincialized) Services Rules, 2003 (hereinafter referred to as "2003 Rules") which came into force w.e.f. 12.08.2003 and later the same was amended in the year 2012 which came into force w.e.f. 10.07.2012. The appellant contended that Rule 4 of the 2003 Rules as amended in 2012 relates to the method of recruitment with regard to Grade-III and Grade-IV posts in such provincialised Higher Secondary/High School of the State and sub rule a(iii) of the said Rule 4 of the 2003 Rules inter alia provides that after receipt of the list of candidates from the District Employment Exchange, the Principal or the Head Master (as the case may be) shall inform the School Selection Committee to hold a written test and Viva-Voce test for selection to the Grade-IV post in consultation with the Inspector of Schools. As the record unfolds last date of filing application was 02.11.2012 and the interview was held on 04.11.2012. It is the case of the appellant that the appellant and the respondent No.6 applied for the said post along with 58 other candidates. However, only 32 candidates appeared in the interview and the remaining were absent. The appellant secured 8 marks in the viva-voce test. According to the appellant, though he was at the top of the list, by reducing his mark from 8 to 5, he was not selected.

4. The petition came to be opposed by the respondents on the ground that the appellant having failed to qualify in the selection, now turned around by challenging the selection process which is not permissible in law and no prejudice was caused by holding the written test.

5. The learned Single Judge by the impugned judgment and order was pleased to set aside the advertisement and directed the school authorities to initiate fresh recruitment process for Grade-IV post in terms of the 2003 Rules Page No.# 4/5

as amended in 2012 mainly on the ground that the written test was not held which was in violation of the Rules.

6. Being aggrieved by the same, the present appeal has been filed.

7. Learned counsel for the appellant has reiterated the contentions raised before the learned Single Judge and contended that the learned Single Judge has failed to appreciate that it is nobody's case that the written test was not held for selection of candidate for the Grade-IV post and it was therefore contended that even though the written test was held, the learned Single Judge has wrongly interfered with the selection process. It was also contended that the learned Single Judge ought to have called for the record of selection and thereby ascertain as to whether the written test was held or not before interfering with the selection process and on that ground alone, the impugned judgment and order deserves to be quashed and set aside. It was also contended by the learned counsel appearing for the appellant that the appellant had secured the highest marks and should have been selected and appointed. It was therefore contended that the appeal be allowed.

8. Mr. Alom Geer, learned counsel appearing for the private respondent No.6 has submitted that the private respondent is no more interested in the job and this Court may pass appropriate order.

9. Mr. R. Mazumdar, learned counsel appearing for the department has produced the photocopies of the original record from the school concerned. The communication dated 17.11.2012 issued to the Inspector of Schools, BDC, Barpeta by Dabaliapara High School recites that the interview was held on 04.11.2012 and written and oral test were conducted wherein the appellant was selected.

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10. We also find that on 04.11.2012, the observer Headmaster of Howly Girl's High School reported to the Inspector of Schools, BDC, Barpeta that the interview for Grade-IV post was held on 04.11.2012 in the school venue wherein total number of question papers supplied was 65, question papers used were 33 and 30 question papers were returned. Mr. R. Mazumdar, learned counsel for the department on instruction and on the basis of record submitted that as per the Rules the written test was conducted followed by viva-voce test wherein the appellant was selected.

11. In totality of facts, therefore, we have no hesitation to hold that the appellant was duly selected in accordance with the 2003 Rules as amended in 2012 and that too after considering the candidature of the appellant in written test as well as in viva-voce. The learned Single Judge has committed an error in quashing and setting aside the recruitment process initiated in pursuance of the advertisement dated 01.10.2012 and has also committed error in directing the authorities to hold fresh recruitment process. Resultantly, the impugned judgment and order is quashed and set aside. The appeal is allowed.

12. The respondent authority shall act as per the selection process held and shall pass consequential orders and appoint the appellant as a selected candidate in the post of Grade-IV in Dabaliapara High School in the district of Barpeta in accordance with law.

However, there shall be no order as to costs.

                  JUDGE                               CHIEF JUSTICE
Comparing Assistant