Gauhati High Court
Muktar Hussain vs The State Of Assam And 5 Ors on 17 July, 2023
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GAHC010110942022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/208/2022
MUKTAR HUSSAIN
S/O LATE JUBED ALI,
RESIDENT OF VILLAGE RAMPUR SATRA, PO KADAMONI, PS BATADRAVA,
DIST NAGAON, ASSAM 782122
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE PRINCIPAL SECRETARY, GOVT. OF ASSAM, DEPARTMENT OF
SECONDARY EDUCATION, DISPUR, GUWAHATI, ASSAM, GUWAHATI -6.
2:THE SECRETARY
GOVT. OF ASSAM
DEPARTMENT OF SECONDARY EDUCATION
DISPUR
GUWAHATI-6.
3:THE DIRECTOR OF SECONDARY EDUCATION
KAHILIPARA
GUWAHATI 19
4:THE DIRECTOR OF MADRASSA EDUCATION
KAHILIPARA
GUWAHATI 19
5:THE MEMBER SECRETARY
KADAMONI SENIOR MADRASSA
PO KADAMONI NAGAON
DIST NAGAON
ASSAM 782122
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6:THE MANAGING COMMITTEE
KADAMONI SENIOR MADRASSA
PO KADAMONI NAGAON
DIST NAGAON
ASSAM 78212
Advocate for the Petitioner : MR P K GOSWAMI
Advocate for the Respondent : SC, SEC. EDU.
Linked Case : WA/205/2022
HASSINA DILRUBA
W/O MD. AYUB ISLAM R/O VILL- KADAMONI PATHAR
P.O. KADAMONI
P.S. BATADRAVA
DIST. NAGAON
-782122
ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE PRINCIPAL SECRETARY
GOVT. OF ASSAM
DEPARTMENT OF SECONDARY EDUCATION
DISPUR
GUWAHATI
ASSAM
GUWAHATI -6.
2:THE SECRETARY
GOVT. OF ASSAM
DEPARTMENT OF SECONDARY EDUCATION
DISPUR
GUWAHATI-6.
3:THE DIRECTOR OF SECONDARY EDUCATION
KAHILIPARA
GUWAHATI 19
4:THE DIRECTOR OF MADRASSA EDUCATION
KAHILIPARA
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GUWAHATI 19
5:THE MEMBER SECRETARY
KADAMONI SENIOR MADRASSA
PO KADAMONI NAGAON
DIST NAGAON
ASSAM 782122
6:THE MANAGING COMMITTEE
KADAMONI SENIOR MADRASSA
PO KADAMONI NAGAON
DIST NAGAON
ASSAM 782122
------------
Advocate for : MR. P K GOSWAMI
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 5 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Appellant : Mr. A. Deka, Advocate.
For the Respondents : Mr. R. Mazumdar,
Standing Counsel,
Secondary Education Department.
Government of Assam.
Date of Hearing : 17.07.2023
Date of Judgment : 17.07.2023
JUDGMENT & ORDER (ORAL)
(A.D. Choudhury, J)
1. Heard Mr. A. Deka, learned counsel appearing for the appellants.
Also heard Mr. R. Mazumdar, learned Standing Counsel for the Education
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Department, Assam.
2. The two intra court appeals are directed against the common
judgment and order dated 05.05.2022 passed by the learned Single Judge
whereby, the writ petitions being WP(C) 4608/2016 (Hasina Dilruba
-Vs- State of Assam & Ors) and WP(C)/4838/2016 (Muktar Hussain
-Vs- The State of Assam & Ors ) preferred by the appellants were
dismissed.
3. By way of the aforesaid two writ petitions, the appellants
challenged the legality and validity of an order dated 22.07.2016, passed
by the Director, (in-charge) Madrassa Education, State of Assam, whereby,
the appointment of the appellants as Assistant Teacher were cancelled.
4. The reason for cancellation of the appointments of the
appellants were that the selection process by which the appellants were
appointed were anomalous and was vitiated by bias as the close relatives
of the appellants were Member Secretary and Member of the Selection
Committee.
5. It is not disputed by the appellants that their close relatives were
part of such Selection Committee, which selected and recommended them
for the appointments in question. The basic contention of the appellants
before the learned Single Judge as well as before this Court is that after
selection and appointment, the appellant became government servant and
therefore, before cancellation of their appointments, the principles of
natural justice ought to have been adhered to by giving them reasonable
opportunity of hearing.
6. The learned Single Judge, relying on the decision of the Hon'ble
Apex Court in the case of Aligarh Muslim University -VS- Monsur Ali
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Khan reported in (2000) 7 SCC 529, negated such contention and
concluded that, as it is an admitted position that the Member and Member
Secretary of the Selection Committee were close relatives of the
petitioners, the selection and recommendation of the petitioners were ex-
facie illegal and therefore, issuance of notice would not change such facts
and no prejudice shall be caused to the petitioners in absence of notice.
Accordingly, the learned Single Judge dismissed the writ petitions and
upheld the decision impugned in the writ petitions.
7. Mr. A. Deka, learned counsel representing the appellants argued
that principle of natural justice has not been followed while cancelling the
appointments of the appellants. According to Mr. Deka, learned counsel,
non adherence of the principles of natural justice has not only prejudiced
the appellants but also is having far reaching civil consequences upon the
appellants. Therefore, the order impugned in the writ petitions cancelling
the appointments of the appellants are liable to be interfered with,
concludes Mr. Deka, learned counsel.
8. We have given over thoughtful consideration to the arguments
advanced by Mr. Deka, learned counsel and also perused the materials
available on record.
9. In the case of Ashok Kumar Yadav -Vs- The State of
Haryana reported in 1985 4 SCC 417, the Hon'ble Apex Court held that
when a member of selection committee is closely related to a candidate
appearing in the selection process, the same would vitiate the entire
selection process on account of reasonable likelihood of bias affecting the
entire selection process.
10. In the case of A. K. Kraipak and Others -Vs- Union of
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Indian reported in 1969 2 SC 262 while dealing with the Rule against
bias affecting the process of selection, the Hon'ble Apex Court concluded
that it is not necessary to establish bias and it is sufficient to invalidate the
selection process, if it is shown that there is reasonable likelihood of bias.
11. It is well settled that the principles of natural justice mandates
that a reasonable opportunity must be given to a person before taking any
adverse action against him. The adjudicating authority must disclose all
the materials placed before it and must give reasonable opportunity to the
affected, to submit his case. A reasonable hearing means, that a person
against whom an adverse order is passed, should be informed of the
charges against him giving him an opportunity to submit his explanation
to the charges and the person is also have a right to know the material on
the basis of which, the allegation is proposed to be decided.
12. In the case of Aligarh Muslim University (supra), the Hon'ble
Apex Court culled out two exceptions to the aforesaid principles of natural
justice. Firstly, when on the basis of admitted/undisputed facts, only one
conclusion is possible, the principles of natural justice would not apply and
secondly, even if a prejudice is pleaded such prejudice is required to be
proved.
13. The aforesaid settle proposition of law and the facts of the
present case, lead this Court to an unhesitant conclusion that the selection
of the appellants were vitiated by likelihood of bias inasmuch as the father
and brother of the appellants were members of the Selection Committee.
As such fact of close relative of the appellants being members of the
Selection Committee, being not disputed by the appellants, no prejudice
shall be caused to the appellants, if the principles of natural justice is not
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adhered and no reply to any notice if issued can change the position and
conclusion that the selection of the appellants have been vitiated by bias.
14. In view of the aforesaid discussion and reasons, this Court do not
find any infirmity in the impugned common judgment and order dated
05.05.2022 passed by the learned Single Judge in writ petition being
WP(C) 4608/2016 (Hasina Dilruba -Vs- State of Assam & Ors ) and
WP(C)/4838/2016 (Muktar Hussain -Vs- The State of Assam & Ors).
15. Accordingly, such decision of the leaned Single Judge is upheld.
Consequently the present writ appeals fail. Parties to bear their own cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
