Page No.# 1/17 vs The State Of Assam And 10 Ors
2023 Latest Caselaw 1650 Gua

                                                        Page No.# 1/17

GAHC010193782018




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

                          Case No. : WP(C)/6328/2018

         SMTI SUMITRA DEWRY AND 60 ORS.
         W/O SRI HARKANTA MOCHAHARY
         R/O VILL- BARAMA, P.O. BARAMA
         DIST. BAKSA, ASSAM,
         PIN - 781333.

         2: SRI SUKLA MOCHAHARY
          S/O SRI MAHESWAR MOCHAHARY
         R/O VILL- DALBARI
          P.O. DALBARI
         DIST. BASKA
         ASSAM
          PIN - 781333.

         3: SMTI. DAMONTI BASUMATARY
          D/O LATE GENTHAI BASUMATARY
         R/O VILL- UDUGOAN
          P.O. NIMUA
         DIST. BAKSA
         ASSAM
          PIN - 781333.

         4: SRI KALA RAM MOCHAHARY
          S/O LT. PRATAP CH.MOCHAHARY
         R/O VILL- BARKHUA
          P.O. KHARUA
         DIST. BAKSA
         ASSAM
          PIN - 781333.

         5: SRI DILIP BARMAN
          C/O SRI GOPESH DAS
         R/O VILL- NIZ ZULUKI
          P.O. BARAMA
         DIST. BAKSA
                            Page No.# 2/17

ASSAM
PIN - 781333.

6: MISS MINU DAS
 D/O LT. BALAK DAS
R/O VILL- ROUMARI
 P.O. SAMUGUTI

DIST. BAKSA
ASSAM
PIN - 781333.

7: SRI SUMI BRAHMA
 D/O DINESH BARHMA
R/O IVLL- BANGALIPARA
P.O. NIZ BANGALIPARA
DIST. BAKSA
ASSAM
 PIN - 781333.

8: SRI RAHUL KALITA
 S/O KAMALESWAR KALITA
R/O VILL- BILPAR
 P.O.
SATHISAMUKHA
DIST. BAKSA
ASSAM
 PIN - 781333.

9: SMTI. USHA DEWRY
 D/O NANDESWAR DEWRY
R/O VILL- BANGOAN

P.O. BARAMCHARY
 DIST. BAKSA
ASSAM
 PIN - 781333.

10: MD. CHANDMAHAMAD ALI
 S/O MAKIBAR RAHMAN
R/O VILL- GERUA
 P.O. GARUA
DIST. BAKSA
ASSAM
 PIN - 781333.

11: SMTI. SIKHA KALITA
W/O SRI DEBEN CH. KALITA
R/O VILL- GELPEJAR
                                    Page No.# 3/17

P.O.MERKUCHI
DIST. BAKSA
ASSAM
 PIN - 781333.

12: SRI DIGANTA CHAKRABARTY
 S/O SRI BANI KT. CHAKRABARTY
R/O VILL- BARAMA
 P.O. BARMA
DIST. BAKSA
ASSAM
 PIN - 781333.

13: SMTI. KRISHNA KALITA
 S/O SACHIN KALITA
R/O VILL- BRAHMA
 P.O. BARMA
DIST. BAKSA
ASSAM
 PIN - 781333.

14: SRI NALINI KT. BHATTACHARJYA
 S/O LT. BANI KT. BHATTACHARJYA
R/O VILL- NIZ JULUKI
 P.O. BARMA
DIST. BAKSA
ASSAM
 PIN - 781333.

15: MISS. GAYATRI CHETRY
 D/O LATE SURJYA BAHADUR CHETRY
R/O VILL- GOPINATHPUR
P.O. KUMARIKATA
DIST. BAKSA
ASSAM
 PIN - 781333.

16: SMTI. NANDITA GOSWAMI
 W/O SRI MONOJ KR. SARMAH
R/O VILL- DAKAUNIA
P.O. GOBARADAL
DIST. BAKSA
ASSAM
 PIN - 781333.

17: MISS. RINGKUMANI TALUKDAR
 D/O BINOY KR. TALUKDAR
R/O VILL- LABDUNGURI PATHAR
P.O. LABDUNGURI
                                 Page No.# 4/17

DIST. BAKSA
ASSAM
PIN - 781333.

18: SMTI. JAYANTI MOCHAHARY
 D/O SRI NARESWAR MOCHAHARY
R/O VILL- AND P.O. DALBARI
DIST. BAKSA
ASSAM
 PIN - 781333.

19: SRI SANKAR MEDHI
 S/O LT. TARANI MEDHI
R/O VILL AND P.O. KALZAR
DIST. BAKSA
ASSAM
 PIN - 781333.

20: SRI MITHISAR GWRA NARZARY
 S/O SRI THANESWAR NARZERA
R/O VILL AND P.O. CHECHAPANI
DIST. BAKSA
ASSAM
 PIN - 781333.

21: SRI SAGAR RAMCHIARY
 S/O CHANDRA KT. RAMCHIARY
R/O VILL- UTTARPARA
P.O. BAGANPARA
DIST. BAKSA
ASSAM
 PIN - 781333.

22: SMTI. DIPALI KALITA
W/O PHANIDHAR KALITA
R/O VILL- BARZAR
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

23: SMTI. SANGEETA DEKA
 D/O ANIL DEKA
R/O VILL- BARJHAR
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.
                                   Page No.# 5/17

24: MISS. JANUTA DEUWRY
 D/O NANDESWAR DEUWRY
R/O VILL- BANGAON

P.O. BARAMCHARI
DIST. BAKSA
ASSAM
 PIN- 781333.

25: SMTI. ALOKA DAS
W/O SRI SUKLA MOCHAHARY
R/O VILL AND P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

26: SRI BENUDHAR DAS
 S/O RATNESWAR DAS
R/O VILL- NIZ JULUKI
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

27: SRI KULAJIT DEWRY
 R/O VILL- BONGOAN
P.O. BARAMCHARI
DIST. BAKSA
ASSAM
 PIN - 781333.

28: SRI PARESH KALITA
 R/O VILL- DAKUNIA
P.O. GABARADAL
DIST. BAKSA
ASSAM
 PIN - 781333.

29: SMTI. RUBI BHATTA
 W/O NALINI KANTA BHATTACHARYYA
R/O VILL- ZULUKI
P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

30: SRI TILAK CH. ROY
 S/O JADU RAM ROY
R/O VILL- BUNMAJA
                              Page No.# 6/17

P.O. BUN MUN KHATA
DIST. BAKSA
ASSAM
 PIN - 781333.

31: SRI RAJEN MOCHAHARY
 S/O BAGUN MOCHARAY
R/O VILL AND P.O. DALBARI
DIST. BAKSA
ASSAM
 PIN - 781333.

32: SRI SURANJITA KALITA
 R/IO VILL- BHOGPUR
P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

33: SRI BHUPEN SWARGIARY
 S/O KHOGEN SWARGIARY
R/O VILL- KOKLABARI

P.O. DALBARI

DIST. BAKSA
ASSAM
PIN - 781333.

34: MISS. MAIJAN BEGUM
 D/O MAZNUR ALI
R/O VILL- RATANPUR
P.O. DIGHELI
DIST. BAKSA
ASSAM
 PIN - 781333.

35: SMTI. RITU BASUMATARY
 W/O SRI CHAMPAK BORO
R/O VILL- ALGIHAR
P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

36: SMTI. KANCHAN GAYARI
 D/O LT. JOY RAM GAYARI
R/O VILL AND P.O. BAGHMARA
BARBARI L.P. SCHOOL
                               Page No.# 7/17


DIST. BAKSA
ASSAM
PIN - 781333.

37: SRI MRINAL KUMAR DAS
 S/O LT. PRAFFULA KR. DAS
R/O VILL- UZAN BARBARI
P.O. KADAIGURI

DIST. BAKSA
ASSAM
PIN - 781333.

38: MD. AIJUDDIN AHMED
 S/OLT. AKBAR ALI
R/O VILL- RATANPUR
 P.O. DHEGELI
DIST. BAKSA
ASSAM
 PIN - 781333.

39: SMTI. JURI KALITA
 D/O JIBAN CH. KALITA
R/O VILL- BHOGPUR
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

40: MISS. BASANTI BORO
 D/O SRI MEBAO BORO
R/O VILL- BAMUNDABA
P.O. MEDAGHAT
DIST. BAKSA
ASSAM
 PIN - 781333.

41: SMTI. MINATI NARZARY
 W/O SRI THANESWAR NARZARY
R/O VILL- HAZIRA
P.O. BENNABARI
DIST. BAKSA
ASSAM
 PIN - 781333.

42: SMTI. MOHINI BASUMATARY
 D/O LT.NARAYAN BASUMATARY
R/O VILL- CHOUDHURYPARA
                              Page No.# 8/17

P.O.KOKLABARI
DIST. BAKSA
ASSAM
 PIN - 781333.

43: SRI HITESH TALUKDAR
 S/O SRI MAHENDRA TALUKDAR
R/O VILL- KADAIGURI
 P.O. KADOIGURI
 DIST. BAKSA
ASSAM
 PIN - 781333.

44: SMTI. RITA SWARGIARY
 D/O KALARAM SWARGIARY
R/O VILL- HATIRTARI
P.O. ATHIABARI

DIST. BAKSA
ASSAM
PIN - 781333.

45: SMTI PRAMILA RAMCHIARY
 D/O KARUNA RAMCHIARY
R/O VILL- KHAMRIGOAN
P.O. DHANBIL
DIST. BAKSA
ASSAM
 PIN - 781333.

46: SMTI. BARNALI SARMA
W/O ARUP BARO
R/O VILL- AND P.O. MURMELA

DIST. BAKSA
ASSAM
PIN - 781333.

47: SRI APURBA BARMAN
 S/O UDAY BARMAN
R/O VILL- PUB BARJHAR
P.O. BARMA

DIST. BAKSA
ASSAM
PIN - 781333.

48: SMTI. DEPANJALI MEDHI
 D/O TARANI MEDHI
                                 Page No.# 9/17

R/O VILL-KALJHAR
P.O. BARMA
DIST. BAKSA
ASSAM
PIN - 781333.

49: SRI CHANDAN KALITA
 S/O JIBAN CH. KALITA
R/O VILL- BHOGPUR (NAKTIPRA)
P.O. BARMA

DIST. BAKSA
ASSAM
PIN - 781333.

50: SRI BIRESWAR BASUMATARY
 S/O LT. MELORAM BORO
R/O VILL- BARAIGOAN
 P.O. TAMULPUR
DIST. BAKSA
ASSAM
 PIN - 781333.

51: MD. ABDUL MANNAF ALI
 S/O ABDUL KADIR ALI
VILL- MAKHARIA
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

52: SMTI. GITANJALI KALITA
W/O SRI TARUN BARMAN
R/O VILL- ALAGZAR
 P.O. BARAMA
DIST. BAKSA
ASSAM
 PIN - 781333.

53: SRI GOJEN DAS
 S/O SRI RAMESH DAS
R/O VILL AND P.O. SAUDARVITHA
DIST. BAKSA
ASSAM
 PIN - 781333.

54: SMTI. MANJU BARO
 D/O DHARMESWAR BARO
R/O VILL AND P.O. MURMELA
                                Page No.# 10/17

DIST. BAKSA
ASSAM
PIN - 781333.

55: SRI BIBEK NATH
 S/O SRI NAGEN NATH
R/O VILL- UTTAR BARTARY
P.O. ANADA BAZAAR

DIST. BAKSA
ASSAM
PIN - 781333.

56: SRI AKHIL BORO
 S/O SRI NAGEN CH. BORO
R/O VILL- RANGAFALI
P.O. NAHERBARI

DIST. BAKSA
ASSAM
PIN - 781333.

57: SMTI. MANIMA DEWRY
 D/O SRI RUPNATH DEWRY
R/O VILL- BANGOAN
P.O. BARAMCHARI

DIST. BAKSA
ASSAM
PIN - 781333.

58: SMTI. BEAUTY DAS
 D/O SRI MAHENDRA DAS
R/O VILL AND P.O. SAUKUCHI
DIST. BAKSA
ASSAM
 PIN - 781333.

59: SRI NALIN MOCHAHARY
 S/O MONI MOCHAHARY
R/O VILL AND P.O. DABARI
DIST. BAKSA
ASSAM
 PIN - 781333.

60: SMTI. LATIFA CHETRY
W/O LT. SURJA BAHADUR CHETRY
R/O VILL- GOPINATHPUR
 P.O. KUMARIKATA
                                                   Page No.# 11/17


DIST. BAKSA
ASSAM
PIN - 781333.

61: MISS. ANJALI GOYARY
 D/O SRI HARENDRA NATH GOYARY
R/O VILL- UDUGOAN

P.O. NIMUA
DIST. BAKSA
ASSAM
 PIN - 781333

VERSUS

THE STATE OF ASSAM AND 10 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR,
GUWAHATI - 6

2:THE COMMISSONER AND SECRETARY
TO THE WPT AND BC DEPARTMENT
 GOVT. OF ASSAM
 DISPUR
 GUWAHATI -06.

3:THE SECRETARY TO THE GOVT. OF ASSAM

EDUCATION DEPARTMENT
DISPUR
GUWAHATI-06.

4:THE SECRETARY

FINANCE (SIU)

(DEPARTMENT)
 DISPUR
 GUWAHATI-06.

5:THE BODOLAND TERRITORIAL COUNCIL

REP. BY THE PRINCIPAL SECRETARY
BTC

KOKRAJHAR

ASSAM
                                                            Page No.# 12/17

             PIN - 783370.

            6:THE ADDITIONAL PRINICPAL SECRETARY

             BTC
             KOKRAJHAR
             ASSAM

            PIN - 783370.

            7:THE SECRETARY
             EDUCATION DEPARTMENT

             BTC
             KOKRAJHAR
             ASSAM
             PIN- 783370.

            8:THE DIRECTOR OF EDUCATION

             BTC
             KOKRAJHAR
             ASSAM
             PIN - 783370.

            9:THE DISTRICT ELEMENTARY EDUCATION OFFICER

             MUSHALPUR
             DIST. BAKS
             ASSAM
             PIN - 781333.

            10:THE DEPUTY INSPECTOR OF SCHOOLS

             BAKSA
             MUSHALPUR

            DIST. BAKSA
            ASSAM
            PIN - 781333.

            11:THE B.E.E.O. BAKSA MUSHALPUR/
            TIHU-BARAMA/ JALAH- GOBARDHANA/ GORESWAR/ TAMULPUR

            DIST. BAKSA
            ASSAM
            PIN - 781333

Advocate for the Petitioner   : MRS A BUJARBARUAH
                                                                      Page No.# 13/17


Advocate for the Respondent : SC, ELEM. EDU




                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                        ORDER

Date : 27.04.2023

Heard Mr. U.K. Goswami, learned counsel for the petitioners. Also heard Mrs. D.D. Barman, learned Additional Senior Govt. Advocate, who has appeared on behalf of Superintendent of Police, CID, Assam, Mr. A. Phukan, learned standing counsel for the Elementary Education Department, respondent nos.1 and 3, Mr. R. Dhar, learned standing counsel for the WPT & BC Department, respondent no.2, Mr. A. Chaliha, learned standing counsel for the Finance Department, respondent no.4, and Mr. S. Bora, learned standing counsel for the BTC, respondent nos.5 to 11.

2. The hearing in this writ petition is concluded.

3. Judgment reserved.

4. In course of hearing, the learned counsel for the petitioner has demonstrated that the Director of Education, BTC, namely, Mr. R.S. Borgayary, had issued appointment orders dated 03.08.2016, which are available at page 99 to 159 of this writ petition. It has also shown that the said authority had also moved the authorities in the BTC for obtaining approval from the SIU, Finance Department, Govt. of Assam. It is projected that the selection process was initiated vide notification for advertisement dated 29.07.2002 and that the interviews were held on 11.08.2002. As per the notification for advertisement Page No.# 14/17

dated 29.07.2002, there was a condition to have the approval of the competent authority within 26.08.2002, apparently the same was not done.

5. The learned standing counsel for the BTC has shown that although the purported notification for advertisement was issued on 29.07.2002, dates of interview being 11.08.2002 questions the manner in which the selection was made.

6. Referring to the affidavit-in-opposition filed by the respondent nos.5 to 11, sworn by Shri Rabi Sankar Borgayari on 30.11.2018 and filed on the same day, stand has been taken that there were no records of any advertisement, call letters, interview, interview date and selection list available in the office and that in due course of time, the BTC authorities by a speaking order dated 20.03.2010 had cancelled the select list dated 10.08.2002, which was also communicated to the Govt. of Assam, Education (Elementary) Department. The further submission made by the learned standing counsel for the BTC is to the effect that consequently a hearing was conducted on 30.12.2016 on the basis of show-cause notices issued to all the 67 purported appointees and out of such 67 appointees, only 49 appointees had appeared during the hearing. Accordingly, it is submitted that an opportunity of hearing was given to all the purported appointees before cancelling their appointment orders by subsequent order dated 05.05.2017.

7. Accordingly, a question has cropped up as to when there was no record before the BTC authorities of any selection process being initiated or undertaken, how could the Director of Education, BTC issue 67 appointment orders. The appointment orders are dated 03.08.2016. However, the records which have been produced by the learned standing counsel for the BTC bearing Page No.# 15/17

file no. BE/BTC/apptt-238/WP(C) 8734/2003/Pt. relating to the matter of 67 numbers of appointment under Baksa district is from the month of October, 2016. Therefore, the basis on which the appointment letters dated 03.08.2016 were issued has not been disclosed before this Court.

8. The affidavit filed by the Superintendent of Police, CID, Assam, which was sworn on 31.10.2022 and filed on 01.11.2022 contains a preliminary enquiry report which, inter alia, discloses that in the record of the Director of Education, BTC, there are two different sets of photocopy of select list of 74 numbers of candidates. As per the communication made by the Director of Education, BTC to the Superintendent of Police, CID, Assam, the report is to the effect:

"Sl. No.a: There is no record of constitution of the Selection Board in this Directorate.

Sl. No.b: There is no declaration of selected lit by the District Selection Advisory Board/Sub Divisional Elementary Advisory Board as the selection was done by the DEEO, Nalbari and DIS, Nalbari in the year 2002 before bifurcation of Nalbari district to Baksa district. However, this Directorate has two different sets of photo copy of selected list of 74 nos. of candidates in the year 2002 (copy enclosed in Flag-M & N).

Sl. No.c: The copies of writ petitions filed by the various candidates (copies enclosed in Flag-A, B, C & D).

Sl. No.d: The relevant orders of the Hon'ble Gauhati High Court (copies enclosed in Flag-E, F, G, H, I, J, K & L).

Sl. No.e: The detailed report on action taken thereon by the concerned department as per order of the Hon'ble High Court (copies enclosed Annexure 1 to

53).

Sl. No.f: The certified copies of the writ petition (Civil) No. 6328/2018 and the writ petition (Civil) 8734/2003 relevant order of the Hon'ble Gauhati High Court Page No.# 16/17

(copies enclosed in Flag- E & F)."

9. Hence, the Court is concerned with the fact that the highest authority of Elementary Education in the BTC, who had issued 67 numbers of appointment orders has made a u-turn and has now stated that there is no record of any selection. Apparently the selection process was initiated in the year 2002 and the appointment orders were issued on 03.08.2016 and the same Director who had issued the appointment orders is now taking a stand that there was no extension of the select list beyond the year 2002. Therefore, in view of the change of stand by the Director of Education, BTC, the Court is inclined to put the State including the Elementary Education Department, Govt. of Assam, Home Department to the Govt. of Assam, Director of Education, BTC and all the authorities under his administrative control as well as Principal Secretary, BTC to show-cause as to why the Court should not direct the investigation to be taken up by the CBI because loss of original records has not been reported to the police or the competent authority, perhaps to shield someone, and why the competent authorities in the Education (Elementary) Department and Bodoland Territorial Council should also not be directed to initiate departmental enquiry to find out the persons who are responsible for whatever that has happened.

10. It is pertinent to mention that the records produced before the Court by the learned standing counsel for the BTC is without any note sheet and without continuous page marking of the contents. The manner in which the files are maintained by the Director of Education, BTC, apparently leaves scope for manipulation and alteration/substitution of documents in the file. Therefore, the Principal Secretary, BTC is directed to show-cause why he should not be directed to cause inspection of the records of Director of Education, BTC and take Page No.# 17/17

remedial measures to ensure that files in the said department be properly maintained.

11. Registry shall separately register an interlocutory application for the purpose of passing further orders in respect of this show-cause notice. The said interlocutory application shall proceed notwithstanding the disposal of the writ petition.

12. Let a copy of this order be provided to the learned Additional Senior Govt. Advocate as well as the learned standing counsel for the Elementary Education Department and learned standing counsel for the BTC for onward communication to the concerned authorities.

13. The records and attendance register produced by the learned standing counsel for the BTC is returned.

JUDGE

Comparing Assistant