Md. Inam Ali vs The State of Assam, & Ors.

The present appeal is directed against the common Judgment & Order dated 25.04.2017 passed in a bunch of writ petitions where the appellant was the petitioner in one of the writ petitions i.e. WP(C) 3218/2011. Prayer is made for giving him an opportunity to place his case before the learned Single Judge as his case is distinct and different from the rest of the writ petitions. Although the Judgment & Order dated 25.04.2017 records consent of the petitioners to the proposal made by the Advocate General, Assam for disposal of individual cases by a High Powered Committee by passing individual speaking orders, Mr. Islam submits that no consent has been given on behalf of the petitioner. To this end, he makes reference to the ground taken in the appeal memo which reads as under:

"2. For that the appellant humbly states that the points raised before the court in his writ petition have not been addressed nor considered on merit and on a wrong and forcible assumption disposed of the writ petition on the alleged consent given by the counsel of the petitioner."

The facts on which the case of the appellant are stated to be distinct and different, it is submitted that the appointment of the appellant has nothing to do with the Advertisement dated 03.09.1991 or for that matter the Select List dated 04.01.1995. The appellant''s case falls into a different category, inasmuch as, he was appointed as Assistant Teacher in Graduate scale on 26.05.1994 against a post created on 16.11.1991. Mr. Islam submits that this fact was taken note of in Writ Appeal 529/1997, arising out of order passed in Civil Rule No. 5216/1996 whereby a learned Single Judge had ordered cancellation of appointments of those beyond the Select List dated 04.01.1995 and those not entitled to on the basis of their merit position in the said Select List. As the order passed in Civil Rule No. 5216/1996 had the consequence of affecting the appellant''s appointment and since he was not impleaded as a party respondent in the said Civil Rule, the Writ Appeal 529/1997 was instituted, which was disposed of by a Division Bench of this Court on 12.05.2000 together with a bunch of writ appeals. In the said judgment of the Division Bench, a finding was recorded that vacancies coming into existence after issuance of the Advertisement dated 03.09.1991, that is, in respect of the posts sanctioned or created or upgraded after the date of the advertisement, such vacancies would not be covered by the Advertisement dated 03.09.1991 as those are clearly future vacancies and not existing or anticipated vacancies. In the said Division Bench judgement it was also held that the posts occurring after the date of Advertisement dated 03.09.1991, being future vacancies, would not be affected by the judgment in Civil Rule No. 5216/1996. Having held thus, the Division Bench observed that facts stated would require verification and if such facts are found to be correct, then appropriate orders have to be passed by the authorities in individual cases regarding the notices of cancellation of appointments served on the appellants, which would mean the appellants whose cases were similar to the present appellant.

According to Mr. Islam, in terms of the directions of the Division Bench he was made to appear before the Commissioner & Secretary to the Govt. of Assam, Education (Secondary) Department vide notice dated 26.04.2011. According to him, he made an effective reply to the Show Cause letter. However, by Order dated 27.05.2011, the Commissioner & Secretary, held that the appellant cannot be treated as a legal appointee and in that regard instructed the Director of Secondary Education, Assam as well the Inspector of Schools, Nalbari to complete the process of terminating the services in pursuance of the order passed in Civil Rule 5216/1996 and other connected Civil Rules. Aggrieved, the appellant filed WP(C) 3218/2011. Other writ petitions were also filed, which were heard together and disposed of by the aforesaid common Judgment & Order dated 25.04.2017.

On the facts above, Mr. Islam submits that the appellant could not have been relegated to the forum of a High Powered Committee. Instead, on the very fact that the order of the Commissioner & Secretary was not in terms of the findings recorded in the Division Bench judgment, the said impugned order ought to have been interfered with holding it as illegal and non est in law. On these counts, a limited prayer is made for setting aside the common Judgment & Order dated 25.04.2017 in so far as the appellant is concerned and for fresh hearing of WP(C) 3218/2011.

Having given our anxious consideration on the facts stated in the appeal and the limited prayer so made, we find that the order of the Commissioner & Secretary to the Govt. of Assam, Education (Secondary) Department dated 27.05.2011 is required to be tested in the light of the findings of the Division Bench in WA 529/1997 and other connected writ appeals, which were heard and disposed of by the Division Bench on 12.05.2000. We refrain from entering into the merits of the case, leaving it open to the appellant to place his case afresh before the learned Single Judge on the legality and validity of the impugned Order dated 27.05.2011.

WP(C) 3218/2011 stands restored to file for fresh hearing on merits. We hope and expect that WP(C) 3218/2011 is heard at the earliest convenience, being mindful of the fact that the appellant has just about 1 year to go on retirement on attaining the age of superannuation. The present appeal stands disposed of accordingly. The directions made by the learned Single Judge for consideration of individual cases by a High Powered Committee shall not apply to the appellant until final disposal of WP(C) 3218/2011. Needless to say, the fate of the appellant shall follow the decision on merits of the said WP(C) 3218/2011.