Wp(C) 6403/2012

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

WP(C) NO.6403/2012

1. Dhubri Zila Anusuchit Jati Parishad Represented by its President, P.O- Dhubri, District- Dhubri.

2. Shri Ananta Kumar Mazumdar Secretary, Dhubri Zila Anusuchit Jati Parishad Village North Tokrer Chara, P.O- and P.S- Golakganj, Dist- Dhubri.

3. Ratan Kr. Barman, S/o- Lt Panch Kari Barman, Village & P.O- Asharikandi, P.S- Gauripur, District- Dhubri

4. Susanta Kr Mondal, S/o- Tarapada Mandal Village- South Tokrerchara, P.O- Golakganj, District- Dhubri

5. Surjya Kr. Goswami, S/0- Late Suresh Ch Goswami, Village- South Tokrerchara Village- South Tokrerchara, P.O- Golakganj, District- Dhubri

6. Sukumar Bagchi, S/o- Late Motilal Bagchi 2

Village- Kaldoba Part-I, P.O- Agomoni, P.S- Golakganj District- Dhubri

7. Sanjit Kr. Barman S/o- Late Indra Mohan Barman, Village & P.O- Asharikandi, P.S- Gauripur, District- Dhubri

8. Ratan Kr Barman, S/o- Late Goni Barman, Village & P.O- Asharikandi P.S- Gauripur, District- Dhubri

9. Manik Chandra Barman, S/o- Late Khirod Barman Village & P.O- Asharikandi P.S- Gauripur, District- Dhubri

10. Madan Mohan Sarkar, S/o- Gopeswar Sarkar, Village & P.O- Asharikandi P.S- Gauripur, District- Dhubri

11. Jayanti Sarkar, W/o- Late Gobinda Sarkar, Village & P.O- Asharikandi P.S- Gauripur, District- Dhubri

12. Nipendra Nath Sarkar, S/o- Late Digendra Nath Sarkar, Village – Madaikhali P.O- Asharikandi P.S- Gauripur, District- Dhubri

13. Hirendra Nath Barman S/o- Jitendra Nath Barman Village & P.O- Asharikandi P.S- Gauripur, District- Dhubri

14. Sankari Bara Das D/o- Late Jogesh Ch Das Village – Madaikhali P.O- Asharikandi P.S- Gauripur, District- Dhubri

15. Dijendra Nath Das S/o- Lt Upendra Nath Das Village- Kaimari P.O- Kaimari P.S- Golakganj District- Dhubri

16. Amullya Kr Sutradhar, S/o- Lt Krish Ch Sutradhar, Village- Kaimari P.O- Kaimari P.S- Golakganj Dist- Dhubri

17. Joygobinda Sarkar, S/o- Kandu Ram Sarkar Village- Lohajani P.O- Maragadadhar P.S- Golakganj Dist- Dhubri

18. Sonatan Bhowmik, S/o- Premdas Bhowmik, Village- Kaldoba Part-I P.O- Agomani, P.S- Golakganj District- Dhubri

19. Nilmoni Sarkar S/o- Trailakha Sarkar Village- Maisha Part-II P.O- Agomani P.S- Golakganj Dist- Dhubri

20. Raghunath Mazumdar, S/o- Lt Jitendra Mazumdar, Village- Kaldoba Part-I P.O- Agomani, P.S- Golakganj District- Dhubri

21. Sankar Kr Biswas S/o- Late Kartik Ch Biswas Village- Kaldoba Part-I P.O- Agomani, P.S- Golakganj District- Dhubri

22. Haren Ch Biswas S/o- Late Madhusudhan Biswas Village- Kaldoba Part-I P.O- Agomani, P.S- Golakganj District- Dhubri

23. Anil Ch Biswas S/o- Lt Madhusudhan Biswas Village- Kaldoba Part-I P.O- Agomani, P.S- Golakganj District- Dhubri

24. Sanat Kr. Bhowmik, S/o- Sadhan Ch. Bhowmik, Vill- North Tokarachara II P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

25. Sushil Kr. Sarkar, S/o- Late Phanindra Nath Sarkar Vill- S. Tokarchara Part-IV P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

26. Amullya Ch. Haldar, S/o- Pranbandhu Haldar, Vill- S. Tokarchara Part-IV P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

27. Ranjit Kr. Sarkar, S/o- Late Phanindra Nath Sarkar, Vill- S. Tokarchara Part-IV P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

28. Sukumar Sarkar, S/o- Surendra Nath Sarkar, Vill- West Tokarchara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

29. Saraswati Biswas, D/o- Banabasi Biswas, Vill- Tokarchara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

30. Prakash Ch Biswas, S/o- Jiban Krishna Biswas, Vill- South Tokarchara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam 6

31. Bisweswar Biswas, S/o- Tarini Biswas, Vill- Gaikhowa Majhar Char, P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

32. Sushanta Kr. Mondal S/o- Kanailal Mondal, Vill- S. Tokarchara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

33. Mrs. Chhaya Bain (Mandal) D/o- Panchu Gopal Mondal, Resident of Dhubri Town Ward No.VI, P.O & PS- Dhubri Dist- Dhubri, Assam

34. Swapan Kr. Das, S/o- Makhan Lal Das, Resident of Dhubri Town Ward No.XI, P.O & PS- Dhubri Dist- Dhubri, Assam

35. Ashoma Mandal, D/o- Prankrishna Mandal Resident of Dhubri Town Ward No.VI, P.O & PS- Dhubri Dist- Dhubri, Assam

36. Ranen Das S/o- Late Makhan Lal Das Resident of Dhubri Town Ward No.XI, P.O & PS- Dhubri Dist- Dhubri, Assam 7

37. Swapan Kr Mandal S/o- Kalikrishna Mandal, Resident of Dhubri Town Ward No.XI, P.O & PS- Dhubri Dist- Dhubri, Assam

38. Khokan Ch Mandal S/o- Kalikrishna Mandal Resident of Dhubri Town Ward No.XI, P.O & PS- Dhubri Dist- Dhubri, Assam

39. Amal Kr Mazumdar S/o- Late Abhay Charan Mazumdar Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

40. Ashok Kr Mazumdar S/o- Late Abhay Charan Mazumdar Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

41. Bulu Mali, S/o- Late Rabindra Nath Das Vill- Baromara P.o- Agomani P.S- Golakganj Dist- Dhubri, Assam

42. Prodip Sarkar, S/o- Late Kalipada Sarkar Village & P.O- Asharikandi, P.S- Gauripur District- Dhubri, Assam

43. Harendra Nath Sarkar S/o- Late Kanchuram Sarkar Village- Lohajani, P.O- Maragadadhar, P.S- Golokganj District- Dhubri, Assam

44. Bimal Ch Biswas S/o- Kanailal Biswas Village- Lohajani P.O- Maragadadhar, P.S- Golokganj Dist- Dhubri, Assam

45. Sahadeb Ch Biswas S/o- Late Birbharsha Ch Biswas Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

46. Mathurlal Sarkar, S/o- Late Sarat Ch Sarkar, Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

47. Pran Krishna Mandal, S/o- Prafulla Kr Mandal, Vill- South Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

48. Gopen Ch Kirtonia, S/o- Khatra Mohan Kirtonia, Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

49. Sarat Kr Biswas, S/o- Satya Ranjan Biswas, Vill- North Tokarachara P.O- Golakganj, P.S- Golakganj, District- Dhubri, Assam

50. Subhas Ch Biswas S/o- Shoshilal Biswas, Village Kaldoba Part-I P.O- Agomoni, P.S- Golokganj Dist- Dhubri, Assam

51. Parimal Das, S/o- Late Monoranjan Das, Village Kaldoba Part-I P.O- Agomoni, P.S- Golokganj Dist- Dhubri, Assam

52. Ramhbabati Barman, D/o- Mukunda Ch Barman Vill & P.O- Asharikandi, P.S- Gauripur Dist- Dhubri, Assam

53. Paritosh Ch Sarkar, S/o- Late Photik Ch Sarkar, Vill & P.O- Asharikandi, P.S- Gauripur Dist- Dhubri, Assam

54. Gauranga Ch Roy S/o- Surendra Nath Roy, Vill & P.O- South Garamari, P.S- Gauripur Dist- Dhubri, Assam

55. Jamuna Biswas, D/o- Late Banalal Biswas, Vill & P.O- South Garamari, 10

P.S- Gauripur Dist- Dhubri, Assam

56. Ratnarani Barman, D/o- Jitendra Nath Barman Vill & P.O- Asharikandi, P.S- Gauripur Dist- Dhubri, Assam

………………………… Petitioners - Versus-

1. The State of Assam, represented by the Commissioner and Secretary, Govt. Of Assam, Education (Elementary) Department, Dispur, Guwahati-6.

2. The Director of Elementary Education, Assam, Kahilipara, Guwahati-19.

3. The District Elementary Education Officer, Dhubri, Assam.

4. The Deputy Inspector of Schools, Dhubri, Assam.

…………………… Respondents

BEFORE HON’BLE MR. JUSTICE B.K. SHARMA

For the petitioners : Mr. M.K. Choudhury, Adv. Mr. N. Baruah, Adv

For the respondents : Mr. J. Abedin, Standing Counsel,

Date of hearing : 13.05.2014 Date of Judgment : 13.05.2014

JUDGMENT AND ORDER (ORAL)

1. By means of this writ petition the petitioners have challenged the Annexure-J order dated 31.08.2012 of the

Commissioner and Secretary to the Government of Assam in the

Education (Elementary) Department declining to appoint the petitioners said to be involved in the writ petitions being CR

No.2035/1993 and CR No. 1938/1997, which were disposed of vide judgments and orders dated 09.12.1994 and 22.02.2002. As will be evident from the said judgments and orders, the direction of this

Court was to implement the provisions of the Assam Scheduled

Castes (SC) and Scheduled Tribes (ST) (Reservation of

Vacancies and Service and posts) Act, 1 978 and the Rules framed there under in 1983. For a ready reference, the operative part of the directions contained in both the judgments are reproduced below:-

In CR No.2035/1993 :-

In the circumstances, I dispose of this Civil Rule with

the following directions: -

(i) The Respondents shall examine the matter thoroughly in consultation with the relevant records and come to a finding as to whether the provisions of “the Act” and “the

Rules” have been complied with;

(ii) If the Respondents find that requirement of provisions of the Act and Rules have not been followed the respondents shall take adequate steps for speedy implementation of the direction of the Act and Rules; 12

(iii) The Respondents shall make all endeavour to appoint members of Scheduled Castes and Scheduled Tribes in accordance with the provisions of Act and Rules by selecting the candidates among the members of the said classes and if there is backlog the respondents shall also endeavour to exhaust the backlog, as early as possible, in strict compliance with the provisions of law; and

(iv) The Respondents shall complete all these process within a period of six months from the date of receipt of this order.

In CR No. 1938/1997 :-

On perusal of the facts and circumstances of the case and also on examination of the materials available on record, this writ petition is disposed of with a direction to the State-

Respondents to implement, in strict terms, the provisions of

Scheduled Caste/Scheduled Tribes (Reservation of vacancies and services and posts) Act, 1 978 along with all the relevant circulars issued from time to time for the benefit of Scheduled

Caste/Scheduled Tribes in making appointment in public employment.

2. Pursuant to the said two directions of this Court, another departmental correspondence have been made signifying by

Annexure-F letter dated 27.10.2008, one Sri N.C. Taye, Deputy

Secretary to the Government of Assam, WPT & BC Department, requested the Commissioner and Secretary to the Government of

Assam in the Elementary Education Department to fill up the backlog vacancies as per the aforesaid two judgments of this

Court. In the said communication, he also referred to the 13

purported advertisement of 1991 and 1995 and the purported response to the same of the petitioners. However, the letter did not disclose as to who were the persons concerned inasmuch as both the writ petitions had been filed in the name of the particular

Association (Dhubri Zila Anusuchit Jati Parishad).

3. When the matter rested thus and after elapse of long 17 years and 9 years from the delivery of the aforesaid two judgments, the Government in the Education (Elementary)

Department vide its notification dated 14.02.2011 constituted a

Committee to prepare the “relevant select list” for publication towards compliance of the directions contained in the said two judgments. Pursuant to the said notification, the Committee held its meeting on 02.07.2011 and prepared select list from amongst the purported petitioners in the aforesaid two writ petitions, although there was no indication of the members of the

Association who had filed the writ petitions.

4. When the recommendation made by the Committee for appointment of the candidates, said to the petitioners now involved in this writ petition from Sl. No.3 to 56 was placed before the

Government for consideration, it passed the Annexure-J order dated 31.08.2012 declining to accept the select list for the reasons contained in the said order. Being aggrieved, the petitioners represented by the aforesaid Dhubri Zila Anusuchit

Jati Parishad along with the purported selected candidates have again approached this Court challenging the said order. Their further prayer in the writ petition is to fill up the backlog vacancies of Assistant Teachers in LP/UP/ME/MV Schools of

Assam on the basis of the selection purportedly conducted in 1991 and 1997. If the prayer for appointing the petitioners from Sl 14

No.3 to 56 is accepted, then they will have to be appointed after

23 years and 18 years of the selection.

5. Mr. M.K. Choudhury, learned senior counsel assisted by

Mr. N. Baruah, learned counsel for the petitioners has strenuously argued that in view of the prayers made in the earlier writ petitions and the above quoted directions of this Court, the authority rightly constituted the Committee to find out the selected candidates who were entitled to get appointment against backlog vacancies meant for reserved candidates. He submits that pursuant to the exercise carried out by the particular Committee, there being recommendation in favour of the selected candidates who incidentally are the petitioners at Sl No.3 to 56 of the writ petitions, they are required to be appointed.

6. Mr. J. Abedin, learned Standing Counsel, Education

Department on the other hand supporting the impugned order dated 31.08.2012 and referring to the stand of the respondents in their counter affidavits, submits that in the given facts and circumstances, there could not have been any recommendation for appointment of the purported selected candidates. He submits that the impugned order dated 31.08.2012 has been passed taking note of all the relevant facts and requires no interference of this

Court.

7. I have given my anxious consideration to the submissions made by the learned counsels for the parties and have also perused the entire materials on record. My findings and conclusions are as follows.

8. As to what were the directions in the earlier round of litigations instituted by the Dhubri Zila Anusuchit Jati Parishad 15

has been noted above. Although the learned counsels for the petitioners by producing the copy of the writ petition in CR

No.2035/1993 has contended that there were definite pleas in the writ petition referring to the selection of 1991, but the same will have to be understood in the context of the eventual direction of this Court. Regarding the prayers made in the writ petition, the eventual direction of this Court was to find out as to whether the provisions of the Act and the Rules had been complied with or not.

Further direction was to comply with the same, if not already complied with, with further direction to make endeavour to appoint members of the reserved categories in accordance with the provisions of the said Act and the Rules.

9. Alleging violation of the said direction, the petitioners i.e.

the Dhubri Zila Anusuchit Jati Parishad had filed a Contempt

Petition being Cop(C) No.336/1995, which as per the own showing

of the petitioners in the writ petition had been dismissed.

Thereafter the said petitioners approached this Court by filing

the writ petition being CR No.1938/1997, which was disposed of

directing the said respondents to implement the provisions of the

said Act and the Rules. There was no whisper, not to speak of any

direction to appoint the members of the petitioner Association

and for that matter to implement any select list in respect of

reserved category candidates in reference to backlog vacancies.

10. Pursuant to the aforesaid directions and as noted above,

departmental communications had been made including the

aforementioned communication dated 27.10.2008 and thereafter a

Committee was constituted vide the notification dated 14.02.2011.

The said Committee without refers to any select list made

recommendation for appointment of the purported petitioners in 16

CR No.2035/1993 and Cr No.1938/1997, although the said two

writ petitions had been filed in the name of the Association i.e.

the Dhubri Zila Anusuchit Jati Parishad. However, now in the

third writ petition (the present one), the purported petitioners

have identified themselves as the petitioners No.3 to 56.

11. When the matter was placed before the Government for consideration, the recommendation of the Committee has been rejected by the impugned order dated 31.08.2012. In the order, it has been rightly held that there was no direction of this Court to appoint the petitioners, rather, direction was issued to implement the provisions of the aforesaid Act and the Rules. The impugned order has also referred to the communication dated 08.07.2008 of the Deputy Inspector of Schools, Dhubri, by which it was disclosed that in the year 1997, no select list had been published and that only the names of some purported petitioners had been found in the interview sheet only. By another communication dated

01.08.2008, the District Elementary Education Officer, Dhubri, it was communicated that there was no anomaly in the selection and interview sheet of 1991-1992. Again the DEEO, Dhubri vide its letter dated 26.10.2005, clearly stated that the provisions of the

Act and the Rules had been implemented and there was no violation of the same.

12. Although the learned counsel for the petitioners by referring to the observations made in the impugned order regarding the advertisement of 1995 and filling up of some posts by OBB teachers has argued that but for the said illegal appointments, the petitioners could have been accommodated against the backlog vacancies, but apart from the fact that the said OBB teachers are not made party respondents in this 17

proceeding and thus no order can be passed against them, the said aspect of the matter also does not help the petitioners in view of the aforesaid facts and circumstances involved in the case.

13. In the counter affidavit filed by the respondents, it has been stated that the Government has been taking steps to clear the backlog vacancies from time to time. In this connection, the affidavit has referred to the Government order dated 03.01.2006 in connection with the Special Drive for clearing the backlog vacancies. Pursuant to the said direction, some backlog vacancies were filled up as indicated in paragraph 8 of the counter affidavit.

14. Above being the position, the claim of the petitioners for their appointments on the basis of the purported selections conducted in 1991 and 1996-97 cannot be granted and that too at this distant date after expiry of more than 23 years and 18 years, respectively. I do not find any infirmity in the impugned order dated 31.08.2012 (Annexure-J). The reasons assigned therein cannot be said to be arbitrary and illegal.

15. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed without, however, any order as to costs.

16. However, before parting with the case record, the respondents are reminded of their constitutional duties to implement the provisions of the aforesaid Act and the Rules, so as to attain the goal sought to be achieved by legislating the said Act and the Rules in the matter of conducting selections in future.

17. It will always be open for the petitioners to participate in such selection process and needless to say that their cases will be considered by the respondents strictly in accordance with the recruitment Rules.

JUDGE

Alam