IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH) WP(C)No.5578 of 2009 Miss Roshmi Dey Daughter of Sri Dhirendra Dey, Resident of Netaji Road, Girish Lane, Ward No.9, P.O. & P.S. Lanka, District- Nagaon, Assam. ….Petitioner -Versus- 1. State of Assam, represented by Commissioner & Secretary, Education Department, Dispur, Guwahati-6. 2. Director of Secondary Education, Kahilipara, Guwahati-19, Assam. 3. Principal, Netaji Vidyaniketan Higher Secondary School, Lanka, Nagaon, Assam. 4. Commissioner for Person with Disabilities, Government of Assam, Dispur, Guwahati-6. 5. Sri Sumesh Paul, Son of late Anil Krishna Paul, Resident of Rupnagar, Ward No.2, P.O. & P.S. Lanka, District- Nagaon, Assam. ….Respondents BEFORE HON’BLE MR. JUSTICE MANOJIT BHUYAN For the petitioner : Mrs. R. S. Choudhury,Advocate Mr.D.P.Bora, Advocate. For the Respondent : Mr. P.Saikia, Advocate, No.1 and 2 Wpc 5578/09 1 For Respondent nos. : None appears 3 & 5 Date of hearing : 28.7.2015 Date of judgment : JUDGMENT & ORDER (CAV) Heard Ms. R. S. Choudhury, learned counsel representing the writ petitioner as well as Mr. P. Saikia, learned counsel representing respondent Nos. 1 & 2. Respondent nos. 3 and 5 is shown to be represented by a counsel, but none appeared on the dates of hearing. 2. An Advertisement dated 3.6.2007 came to be published in the ‘Assam Tribune’ daily inviting applications for filling up the existing vacant posts of Subject Teachers in Provincialised Higher Secondary Schools of the State. The total number of vacant posts was shown as 158 and the details of the vacancies i.e. district-wise, school-wise and subject-wise was indicated in the said Advertisement. The educational qualification/ criteria was laid down as minimum IInd Class Post Graduate degree in the concerned subject with further stipulation that candidates having B.Ed Degree would get preference. The intending candidates were required to submit their applications in the office of the Director of Secondary Education, Assam by mentioning the concerned post/school against which application was made. The selection was to be made as per the Assam Secondary Education (Provincialised) Service Rules, 2003 having regard to the reservation provision for appointment as per Rules. 3. In the instant case the issue involves selection and appointment to the post of Post Graduate Teacher in the subject of English at Netaji Vidyaniketan Higher Secondary School, Lanka, Nagaon. Wpc 5578/09 2 4. According to the petitioner, she being qualified in all respects responded to the said Advertisement dated 3.6.2007 by submitting application before the office of the Director of Secondary Education, Assam. She offered her candidature for appointment as Post Graduate Teacher in English at Netaji Vidyaniketan Higher Secondary School, claiming benefit of reservation as a physically handicapped person by enclosing therewith the Certificate issued by the competent authority certifying 60% disability in both the lower limbs. 5. In course of time Call Letter dated 16.8.2007 was issued, pursuant to which the petitioner appeared for interview before the School Selection Committee of Netaji Vidyaniketan Higher Secondary School on 29.8.2007. 6. It is the case of the petitioner that in the month of September, 2009 she came to learn that without considering her case as a physically handicapped candidate, the name of the respondent no.5 had been recommended and forwarded to the higher authority for appointment. Accordingly, on 16.9.2009 the petitioner submitted an application under the Right to Information Act, 2005 before the Public Information Officer, RTI Cell, DSE, Kahilipara seeking information as to whether any reservation was made for physically handicapped person in respect of making appointment pursuant to the Advertisement dated 3.6.2007. According to the petitioner, no information was provided to her. 7. The primary ground of challenge is that the selection process is vitiated, in as much as, the provision under Section 33 read with Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, had been ignored. On the basic facts and ground of challenge, prayer is made for quashing the selection/appointment process and for a direction to the respondents to reserve minimum 3% of the current vacancies as well as to compute Wpc 5578/09 3 further 3% of the backlog vacancies with effect from the year 1996-1997 and thereafter to re-advertise the same and to consider the case of the petitioner. It would be worthwhile to note that the writ petition was filed on 11.12.2009. 8. In the affidavit-in-opposition filed on behalf of the Education (Secondary) Department, Assam, it is indicated that selection was made by the respective School Selection Committee, which prepared the select list based on the academic performance and marks secured in the interview. In the said affidavit there is no indication that reservation provision for appointment under the law had been followed, particularly with regard to the provisions under the aforesaid Act of 1995. The justification projected is that as per available records and as received from the Principal-cum-Member Secretary of the School Selection Committee of Netaji Vidyaniketan Higher Secondary School, nowhere it was recorded that the petitioner is a physically handicapped person. Further, on the basis of the selection made, the first position holder i.e. the respondent no.5 was appointed, having secured the highest aggregate marks in academic performance and interview. In the said affidavit it is also indicated that with regard to the information sought under the RTI Act by the petitioner, such information was provided to the petitioner vide letter No. AAP/RTI/110/09/2 dated 12.13.2009 (sic) as per official records. 9. In the affidavit filed by the private respondent no. 5, Sri Somesh Paul, it is stated that he passed M.A. Examination from the Assam University. However, in the same paragraph it is indicated that “he passed M.A. in English securing first division from Institute of Advanced Studies in Education Deemed University”. The Respondent No.5 also states that he passed B. Ed examination securing Second Class from Gauhati Wpc 5578/09 4 University and on the date of filing the counter affidavit he was pursuing M. Phil Course in English under Vinayak Missions University, Tamil Nadu. 10. According to Respondent No.5, the post in question was not a reserved post for physically handicapped candidate and neither was he selected under the quota of retired school teacher. According to him, his selection and eventual appointment was based solely on merits. In fact, appointment letter was issued to him vide order contained in letter No.GB-EST/Apptt/St/2008/196 dated 3.9.2009, issued under the hand of the Director of Secondary Education, Assam, to the post of Post Graduate Teacher in the subject of English at Netaji Vidyaniketan Higher Secondary School, to which post he joined on 5.9.2009. The respondent no.5 has also made statement to the effect that the petitioner does not have B.Ed degree and therefore cannot claim preference. It is also argued that the petitioner having participated in the selection process cannot now turn around to challenge the same. 11. This case was extensively heard on 17.6.2015 and in the course of hearing it appeared that for just adjudication of the case, the records would be necessary to be looked into. This Court was of the view that the records pertaining to the selection made in respect of Netaji Vidyaniketan Higher Secondary School would be required to be perused, at least to the extent as to whether the candidature of the petitioner was considered having regard to the fact that she is a physically handicapped person and as to whether the reservation provision for appointment had been followed. Accordingly, the case was heard in part and refixed on 16.7.2015 with direction that the counsel representing the Education Department shall produce the records. On 16.7.2015 an incomplete set of records was made available, on account of which the case was refixed on 21.7.2015. Even on 21.7.2015 as well as on the next date i.e. 28.7.2015 the relevant records were not produced, as a result of which, this Court Wpc 5578/09 5 had no option but to record conclusion of the hearing and reserving the case for judgment. 12. With regard to the procedure adopted for selection and appointment pursuant to the Advertisement dated 3.6.2007 and as to whether or not the reservation provision for appointment had been followed, reliance can be had from W.P.(C) 4351/2009 (Smti Queen Sarma -vs- State of Assam & ors), reported in 2014 (2) GLR 552. The subject matter in the said reported case is similar, in that, the petitioner therein who claimed benefit of reservation on account of being physically handicapped, had also been denied appointment in the school in question. The said reported case also had its genesis in the Advertisement dated 3.6.2007 published in the ‘Assam Tribune’ daily for filling up existing vacant posts of 158 numbers of Subject Teacher in the provincialised Higher Secondary Schools of Assam. In the said case the contention of the petitioner therein was duly taken note of to the extent that in the list of 127 candidates who had been selected for appointment by the respective School Selection Committees, a NOTE had appeared indicating that due to non-availability of ST(H), ST(P), SC and physically handicapped candidates, the office of the Director of Secondary Education, Assam could not fill up the Roster points and as such the vacant posts were being filled up by general candidates.