High Court of Meghalaya

Shri Ardwin Lyngdoh & Ors. vs . State Of Meghalaya & Ors. on 17 August, 2022

 Serial No. 01
 Supplementary List
                      HIGH COURT OF MEGHALAYA
                            AT SHILLONG

WP(C) No. 189 of 2021
                                         Date of Decision: 17.08.2022

Shri Ardwin Lyngdoh & Ors.            Vs. State of Meghalaya & Ors.

Coram:
              Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)           :       Mr. S. Khurshid, Sr. Adv. with
                                        Mr. P. Yobin, Adv.

For the Respondent(s)           :       Mr. A. Kumar, AG with

Ms. R. Colney, GA

i) Whether approved for reporting in Yes/No Law journals etc:

ii) Whether approved for publication Yes/No in press:

JUDGMENT AND ORDER

1. The saga involving the recruitment to the post of Assistant

Teachers in Government Lower Primary Schools is sought to be

continued and resurrected by way of the instant writ petition, wherein

a report dated 22.02.2021, submitted by a Three Member Committee,

pursuant to orders dated 22.09.2020 in WP(C) No. 195 of 2020, is

being assailed by 66 writ petitioners.

2. The challenge this time around is however, limited to the

findings of the Committee with regard to the age of the writ petitioners,

46 in number, who were declared by the Committee to be age barred

and the rest 20, who were found to not possess the requisite marks, out

of the total number of 66 writ petitioners.

3. It is to be noted that this issue, which has seen multiple

and protracted litigation before this Court and before the Supreme

Court, has its genesis in an advertisement dated 10.12.2008, whereby

applications were invited by the Deputy Inspector of Schools for

Recruitment to the post Assistant Teachers. The process of selection

culminated in the appointment of 749 candidates, which came to be

challenged by the unselected candidates by way of several writ

petitions before the erstwhile jurisdictional High Court i.e. Gauhati

High Court in the Shillong Bench, with the lead matter being WP(C)

No. 106 (SH)/2010. The said writ petitions were then disposed of by a

common judgment dated 21.10.2011, which apart for other findings,

inter alia, directed for a CBI inquiry with the report to be submitted

within a period of 3(three) months. This order came to be challenged

by way of a bunch of writ appeals, with the lead writ appeal being No.

WA No. 52 (SH) 2011 before a Division Bench of the Gauhati High

Court.

4. By a common judgment dated 16.08.2012, the Division

Bench, while disposing of the appeals, held that the enquiry by the CBI

was not requisite and the matter should have been left for scrutiny and

inquiry by the Government. The report of the CBI was however not

annulled, and it was directed that the records be reviewed and be re-

scrutinized by a Committee, which was to be constituted in the

Education Department, which could also take beneficial assistance and

guidance from the findings recorded in the said report. It was further

directed by the Division Bench, that the services of the tainted

candidates be terminated; the un-tainted candidates be retained and

those who otherwise found eligible be appointed. In pursuance thereto,

a High-Level Scrutiny Committee was constituted by the Government,

which then submitted its report on 29.07.2013, accompanied by a

finding on several tainted candidates together with the observations on

other aspects of the matter. As steps were then taken to terminate the

services of 246 candidates in the month of February 2014, as per the

recommendation of the report, some of the terminated candidates then

preferred Special Leave Petitions before the Hon'ble Supreme Court

challenging the termination orders along with the said judgment dated

16.08.2012, whereas other terminated candidates, filed writ petitions in

this Court challenging the orders of termination. Thereafter, the

Hon'ble Supreme Court after hearing the matter set aside the order

impugned and remitted the matters back to this Court vide order dated

24.03.2017, to be taken up afresh. This Court in the Division Bench,

then by order dated 02.11.2017, decided the said writ appeals by

passing a slew of directions prescribing the manner in which the

process of segregation between tainted and un-tainted/unblemished

was to be conducted and the consequential action to be taken thereon.

By this judgment, it was also held that the selection process dated

10.12.2008 was vitiated in some centres, and a CBI inquiry was called

for, to segregate the tainted and un-tainted candidates and to submit the

report thereof, to the Chief Secretary.

5. This judgment dated 02.11.2017 too, came to be

challenged before the Hon'ble Supreme Court in several Special Leave

Petitions, which were filed by the State as well as other aggrieved

parties. The Hon'ble Supreme Court while dismissing most of the

SLPs, however, in SLP (C) No. 40348 of 2017, on the assertion that

the petitioners therein, had not been heard by the High Court, gave

them liberty to move the High Court, if they had not been heard earlier.

Pursuant to the order of the Hon'ble Supreme Court in SLP (C) No.

40348 of 2017, a review petition being Review Petition No. 3/2018

came to be filed before the Division Bench of this Court, which was

disposed by order dated 14.12.2018, allowing 50 un-tainted candidates

to continue in service and to be absorbed as per the terms and

conditions of their selection and appointment orders.

6. Yet another writ petition being WP(C) No. 195 of 2020

then came to be filed before this Court, pertaining to candidates from 8

centres, who in fact, already stood governed by the directions contained

in the judgment dated 24.11.2017 passed in WA No. 52 of 2011. The

ground taken in the writ application, was that the petitioners therein,

were entitled to similar treatment as was given to the tainted teachers

of 5 other centres, and that an opportunity ought to have been given to

them to file representations before the Chief Secretary. This Court then

by order dated 22.09.2020 disposed of the matter by directing as

follows: -

"14. In the above facts and circumstances, in my view, interest of justice would be sub served by passing following order:

(i) The petitioners are at liberty to file representation before the Committee headed by the Chief Secretary/Additional Chief Secretary, Government of Meghalaya. Such representation shall be filed within 30 days from today for considering them as untainted teachers. The Committee headed Chief Secretary/Additional Chief Secretary shall examine the petitioners representation as per

direction contained in para 2 of operative part of the order in WA No. 52/2011 and shall take decision on such representation within a period of 60 days from the date of receipt of the representation.

(ii) If the Committee accepts the representation and treat the candidates as untainted, the respondents shall revoke the termination of those teachers and they shall continue in their services as Assistant Teachers in terms of order dated 14-12-2018 passed by the Division Bench in Review Petition No. 3/2018. So far as petitioners/candidates whose tainted character is confirmed by the said Committee are concerned, the consequences as laid down in para 2 of the operative part of the order in WA No. 52/2011 shall follow."

7. In accordance with the order dated 22.09.2020 passed in

WP(C) No. 195 of 2020, 253 out of the 260 teachers who were found

to be tainted in the report of the CBI dated 13.11.2018, and

recommended for termination by the Committee, vide its report dated

03.01.2020, filed their representations. The Committee after examining

the said representations, then declared 187 candidates as not tainted.

The remaining 66 therefore, being aggrieved by the findings of the

Committee are before this Court by the instant writ petition assailing

the CBI report dated 13.11.2018 and the Committee's report and

recommendation dated 22.02.2021.

8. Mr. S. Khurshid, learned Senior counsel assisted by Mr.

P. Yobin, learned counsel for the petitioners submits that the

Committee while considering the representations as allowed by this

Court vide order dated 22.09.2020, failed to take into account the

Meghalaya Fundamental Rules and Subsidiary Rules, 1984 (hereinafter

referred to as FR & SR Rules). It is submitted that SR 6 (a) (iv) has

provided that 35 years is the limit in respect of candidates in employ in

Aided Schools for appointment to Meghalaya School service, provided

they are eligible for the same. It is contended that the respondents

ignored the said Rules which are available to candidates belonging to

the SC/ST category and the age of eligibility had been reduced in the

Notification and Advertisement dated 24.11.2008 and 10.12.2008. It

has also been contended that the Committee did not appreciate the fact

that in appointment of teachers in Government Aided Schools, SR 6 (a)

(iv) has been taken into consideration and 40 years is considered to the

upper limit as per a memo dated 24.05.2005, and thus there being

inconsistency or variability in the eligible age, the benefit should be

given to the candidates. Reference has been made to the Notification

and the advertisement dated 24.11.2008 and 10.12.2008 respectively to

demonstrate the discrepancy in the cutoff date prescribed therein.

9. On the question of res judicata it has been argued by the

learned Senior counsel that the same will not apply as fresh grounds

have arisen and the subject matter is not the same. He submits that in

the case of Shimla College Education vs. National Council for

Teacher Education & Anr. reported in (2017) SCC Online Del. 8821,

the petitioner had filed a 12th case on the same ground and the Court

held that in the teeth of illegality, it would be unjust to relegate the

petitioner to the remedy of appeal and the writ petition was allowed.

He submits that similarly in the present case for the sake of justice, the

Committee is liable to be directed to take a fresh look keeping in mind

the inconsistencies of the upper age limit and the cutoff age.

10. The learned Senior counsel then submits that persons

having common and joint interest in the subject matter of controversy

may be joined as petitioners in one writ petition, and as such the writ

petitioners have filed a single writ petition as they have joint interest in

the subject matter. In this context, reliance has been placed on a

judgment of the Karnataka High Court reported in (1964) SCC Online

Kar. 67 in the case of M/s Mount Corporation & Ors. vs. Director of

Industries and Commerce, Mysore Bangalore & Ors. The learned

Senior counsel has also sought to obviate the binding nature of the

judgment dated 02.11.2017 passed in WA No. 52 of 2011, by

submitting that the ratio decidendi in the judgment, was holding the

notification and advertisement dated 24.11.2008 and 10.12.2008, to be

vitiated, whereas the rest of directions given in the said judgment are

obiter dicta. To fortify this contention, learned Senior counsel has

referred to the proposition of the 'Inversion Test' as used by the

Hon'ble Supreme Court in the case of State of Gujarat & Ors. vs.

Utility Users Welfare reported in (2018) 6 SCC 21, wherein he quotes

para 114 which is reproduced hereinbelow: -

"114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey, "it must be an opinion, the formation of which, is necessary for the decision of a particular case".

Learned Senior counsel submits that in the present case, if

the proposition in the order dated 02.11.2017 is removed wherein, it

had been directed that if the tainted character of a candidate was

confirmed by the Committee, he/she shall stand permanently debarred

from seeking any Government employment, the advertisement and

notification dated 10.12.2008 and 24.11.2008 would still be vitiated.

Thus, he submits the remarks of the Court amount to obiter dicta and

not ratio decidendi.

11. It is also to be noted that the learned Senior counsel while

advancing his arguments, had at the bar submitted that only the cases

of the 46 candidates who were declared over-aged was being

canvassed.

12. Mr. A. Kumar, learned Advocate General assisted by Ms.

R. Colney, learned GA for the respondents in reply to the submissions

has raised the following contentions:

(a) The prayer as made out in the writ petition is defective and the

arguments are not based on the pleadings made therein.

(b) Petitioners have distinct cause of action which cannot be clubbed

into one petition.

(c) The issues raised are barred by the principles of res judicata as

all the issues raised in the instant writ petition have been decided

by judgment and order dated 02.11.2017 in WA No. 52 of 2011

and judgment and order dated 22.09.2020 in WP(C) No. 195 of

2020.

(d) The Three Member Committee has considered the

representations made by the petitioners and decided the same

finally and as such, the same having been considered, the

petitioners are not entitled and cannot be allowed further liberty

to challenge the report.

13. Expanding the points of contention, firstly on the ground

of res judicata, it is submitted that the writ petition is barred, as the

entire matter has already been examined by this Court and directions

issued. The learned AG submits that, vide the judgment dated

02.11.2017 in WA No. 52 of 2011, the CBI was directed to carry out

inquiry in centres other than Shillong Sadar, Jowai, Amlarem, Tura and

Dadenggre, and for a Committee to be headed by the Chief Secretary,

after examination of the said report, to carry out further inquiry if

deemed necessary, and make final recommendations thereon. It is

submitted that the State Government is thus bound by the

recommendations so made and no further liberty was allowed to the

petitioners thereafter, to challenge the basis of them being held tainted,

or the consequent orders of termination.

14. The learned Advocate General submits that this Court by

order dated 22.09.2020 in WP(C) No. 195 of 2020 allowed the tainted

teachers to file a representation before a Committee headed by the

Chief Secretary in terms of direction No. 2 of the judgment dated

02.11.2017. This having been done and concluded by the Committee,

wherein out of 253 candidates, 187 candidates from 8 Sub-Divisions

were found to be not tainted and 66 candidates found to be tainted, the

same had brought a final conclusion to the representations and is

enough to conclude the litigation. It is submitted that no further liberty

has been accorded to the petitioners to re-agitate the matter. Learned

AG has taken this Court to the relevant parts of the recommendation of

the Committee and submits that in the face of the categorical finding

by the Committee in respect of the 66 candidates and the clear

directions of this Court vide order dated 22.09.2020, to proceed in

terms of direction No. 2, contained in order dated 02.11.2017 in WA

No. 52 of 2011, there is no scope for further litigation. In support of his

submissions reliance has been placed on the following cases: -

(i) Daryao v. State of U.P., (1962) 1 SCR 574 : AIR 1961 SC

1457:

(ii) GulabchandChhotalal Parikh v. State of Gujarat, (1965) 2

SCR 547 : AIR 1965 SC 1153

(iii) State of Karnataka v. All India Manufacturers

Organisation, (2006) 4 SCC 683 at page 699

15. On the other contentions as raised, the learned AG submits

that the petitioners have different causes of action and the case of each

petitioner/candidate contains distinct set of facts, which cannot be

clubbed into one writ petition and the petitioners do not have a common

interest, inasmuch as, the reasons for challenging the actions of holding

them tainted differed from one case to another. Reference has been

made to the following judgments:

(i) Binod Kumar v. State of Jharkhand, 2022 SCC OnlineJhar

107:

(ii) P. Radhakrishna Naidu v. Govt. of A.P., (1977) 1 SCC 561:

(iii) Mota Singh v. State of Haryana, 1980 Supp SCC 600

16. The learned Advocate General in continuation then

submits that even otherwise, the entire merits of the matter have been

dealt with adequately by the Committee and that the present writ

petition is nothing but an attempt to rekindle an issue which should

stand closed. It is submitted that the Committee has recorded the

explanations given by each candidate and the observations thereto, has

been given in the detailed table annexed to the report dated 22.02.2021.

He submits that the petitioners at this stage cannot say that they were

denied natural justice, or attempt to go behind the order of the Division

Bench, or question the eligible age as prescribed in the advertisement

and notification dated 10.12.2008 and 24.11.2008, as they had

participated in the selection process had accepted the terms and clauses

contained therein, and are therefore barred from raising any plea on this

issue.

17. It is lastly submitted that adequate opportunity has already

been afforded to the petitioners and nothing remains to merit any fresh

consideration and the issue having been subject to multiple

investigations and litigations over the last decade, deserves to be set at

rest by rejecting the instant writ petition.

18. I have heard the learned Counsel for the parties and

carefully examined the materials on record, As observed earlier this

issue has been dealt with in detail by the order dated 02.11.2017 in

W.A. 52 of 2011, and the latitude given by order dated 22.09.2020 in

WP(C) No. 195 of 2020, whereby the instant petitioners were allowed

to prefer representations can be said to emanate from the order dated

02.11.2017, more particularly Para 2 of the said judgment. For the sake

of convenience, the relevant part of the judgment is reproduced herein

below:

"Conclusion and Directions:

Accordingly, and in view of the above:

             (a)    The whole of selection process under the
                    advertisement       dated 10-12-2008, as issued by

the Deputy Inspector of Schools in pursuance of Notification dated 24-11-2008, is held vitiated in relation to Shillong Sardar, Jowai, Amlarem, Tura and Dadenggre Centres: and is annulled subject to the proviso that only the candidates who have been treated as untainted/unblemished both in the reports of CBI and HLSC and are in service, may be allowed to continue as stop-gap arrangement until fresh selection takes place.

(b) The prayer of other untainted/unblemished candidates of the said five Centres for induction in service stands rejected.

(c) However, all the untainted/unblemished candidates of the said five Centres, whether in service or not, shall be allowed to participate in the fresh selection process, if otherwise eligible in accordance with the presently applicable Rules/Guidelines, without necessity of their applying afresh. In this regard it is also provided that none of such untainted/ unblemished candidates shall be treated as age-barred if he/she was within the age prescribed by the notification dated 24-11-2008.

(d) None of the candidates who has been found tainted/blemished, whether in the report of CBI or in the report of HLSC or both as also none of the candidates who had been recommended by the public representative shall be taken or retained in service even in stop-gap arrangement and the service of every such candidate, who is yet continuing, whether by way of regular appointment or in ad hoc arrangement, shall stand terminated with immediate effect.

2. For the candidates who have been found tainted/blemished in the CBI report and/or HLSC report for Shillong Sadar, Jowai, Amlarem, Tura and Dadenggre, it is provided that any such candidate, if so desires, may make a representation, within 30 days from today, to the Chief Secretary to the Government of Meghalaya for consideration as untainted candidate. The Chief Secretary shall get such representation/s examined by a three-member Committee, comprising of himself; and one member from the State Civil Services having unblemished service record and of impeccable integrity; and one independent member from any Central or State Educational Institution or University. The said Committee shall take decision on such representation/s within 60 days of making; and if the Committee would accept the representation and treat the

candidate as untainted, he/she shall be entitled to the right of participation in the fresh selection process at par with other untainted candidates. It is, however, made clear that if the Committee would confirm the tainted character of any such candidate, he/she shall stand permanently debarred from seeking any Government employment and shall also be liable for penalty quantified in the sum of Rs. 50,000/- (fifty thousand) that shall be deposited in the State Disaster Management Fund.

3. So far the Centres other than Shillong Sadar, Jowai, Amlarem, Tura and Dadengre are concerned, it is directed that:

a) CBI shall carry out similar nature inquiry, as carried out earlier in pursuance of the order date 21.10.2011 and shall similarly segregate the tainted and untainted candidates and submit its report to the Chief Secretary within six months from today. For this purpose, the State Government shall, within two weeks from today, hand over the entire record relating to all the Centres to the CBI without fail.

b) As soon as the report is submitted by the CBI, it shall be required of the Chief Secretary to act on such report of CBI through the same Committee as ordered hereinabove. In this regard, it is provided that:

i) The said Committee headed by the Chief Secretary shall examine the report of CBI and shall carry out such further inquiry as deemed fit and necessary but shall make final recommendation to the State Government within 3 months of receipt of the report from CBI.

ii) If large scale manipulations and/or interference of public representative or any other person are found, the Committee may recommend scrapping of whole of the selection process of that Centre too; and the State Government shall act accordingly. In such an eventuality, the directions in the foregoing paragraphs 1 and 2 shall apply.

iii) If no illegalities and manipulations are found in any Centre or if the extent of irregularities in any particular Centre are not of higher magnitude and no case of interference by any public representative or any other person is found, the selection process of such Centre may be approved by the Committee subject to appropriate orders relating to the tainted or blameworthy candidate, if any; and the State Government shall act accordingly.

4(a) Laitumkhrah P.S. Case No. 62(7) of 2011 stands withdrawn from the State Police and stands transferred to the CBI for appropriate investigation and submission of its result within six months from today.

(b) The Case Diary of Laitumkhrah P.S. Case No. 62(7) of 2011 as submitted by the State Government, shall be handed over to the learned counsel for CBI for onward transmission to the Superintendent of Police, CBI, Shillong.

(c) The other records of CBI pertaining to the inquiry proceedings in PE2(A)/2011-SHG shall also be handed over to the learned counsel for CBI for onward transmission to the Superintendent of Police, CBI, Shillong.

5. The disciplinary proceedings against the then Director, Elementary and Mass Education shall continue and the case file of disciplinary proceedings be returned to the learned Advocate General for appropriate transmission. The other certified copies and the documents in relation to the proceedings of the HLSC as also appointment orders be handed over to the learned Advocate General.

6. All the appeals and writ petition in this group stand disposed of accordingly with no order as to costs."

19. The order dated 02.11.2017 in WA No. 52 of 2011, had

allowed the candidates who had been found tainted/blemished in the

CBI report and/or the High-Level Scrutiny Committee report in five

centres, to make representations within 30 days before the Chief

Secretary for consideration as untainted candidate. As the pointed case

of the petitioners, was that they had not been able to file their

representations within 30 days, as stipulated in Para-2 of the operative

part of the order dated 02.11.2017 in WA No. 52 of 2011, this Court

by order dated 22.09.2020 in WP(C) No. 195 of 2020 in consideration

thereof on the reasons as shown, allowed the same liberty to the

petitioners. The liberty so given was on the ground that the petitioners

could not file the representations earlier, as a copy of the CBI report

was not made available to them.

20. In the considered view of this Court, with the grant of the

liberty and the subsequent proceedings before the Committee, wherein

the representations were examined and recommendations made

thereon, no further cause of action has accrued to the petitioners, to re-

agitate for re-examination of the matter on the contentions as raised. It

is pertinent to note herein, that on the question of the age criteria, which

has been put forth as the main ground to impugn the findings of the

Committee, apart from the fact that no challenge had ever been put to

the notification and advertisement dated 10.12.2008 and 24.11.2008,

the Committee had considered and also addressed this issue and the

same is reproduced hereinbelow:-

"XV. Age relaxation claimed under Order dated 24/05/2005:

1. The Committee, while scrutinizing the representations, noticed another claim for age relaxation by some candidates. Some candidates have claimed age relaxation under Govt. Order No. 196/2003/31 dated 24/05/2005. Education Department, Govt. of Meghalaya. As per this Order, the upper age limit for the employment of SC / ST candidates in Govt. Aided schools may be considered up to 40 years as per the provisions of S.R. 6(a) (iv) of the Meghalaya F.R. & S.R. 1984. (ANNEXURE-VIII).

2. Order No. 196/2003/31 dated 24/05/2005, from the Education Department, Govt. of Meghalaya, is related to the SC/ST candidates' employment in Government Aided Schools. This Order has no relevance to the recruitment of Asst. Teachers through Notification dated 24/11/2008. The C.B.I. rightly did not consider these claims. Such claims have been rejected by this Committee also."

21. This Court is also inclined to accept the submissions of the

respondents that there exist distinct causes of action and clubbing of

the petitioners in one petition and further seeking to make a distinction

of 46 petitioners who are age barred, from the total 66 petitioners,

without indicating the names of those petitioners, has surely disabled

the writ petition.

22. As observed earlier there is nothing left for consideration

by this Court as all the issues have already been discussed and dealt

with. To reconsider the matter on the pleadings of the writ petitioners

herein would therefore, amount to going behind the orders of the

Division Bench which is impermissible, as the liberty so granted to the

petitioners is circumscribed by the orders dated 02.11.2017 and