Sankar Ranjan Paul vs The State Of Assam & Ors.

Heard Mr. M.P. Sarma, learned counsel for the petitioner. Also heard Mr. P.P. Dutta, learned standing counsel, Secondary Education Department, for the respondent Nos. 1 to 4; Mr. M.K. Choudhury, learned Senior Counsel, assisted by Mr. K. Uddin, learned counsel for the respondent No. 5; and Mr. I. Alam, learned standing counsel, NCTE, for the respondent No. 8.

In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Sankar Ranjan Paul has challenged the appointment order, dated 08.03.2019 (Annexure-11), issued in favour of the respondent No. 5, by appointing him as regular Principal of Abdul Hasib Higher Secondary School, Hojai; and also for issuing direction to the respondent authorities to appoint him as regular Principal of Abdul Hasib Higher Secondary School, Hojai by reviewing the decision of the State Selection Board, by comparing the seniority, teaching experience and date of birth of both the candidates.

The background facts, leading to filing of the present petition, are briefly stated as under:

The respondent No. 5 has filed affidavit-in-opposition denying the statements and averments made by the petitioner in the writ petition, wherein he has taken a stand that the petitioner has been recommended for being appointed as Principal of National High School, Lumding, vide recommendation dated 12.02.2019. His further stand is that the petitioner had joined on 03.06.1997 as Subject Teacher (Mathematics) and that the petitioner had obtained his B.Ed degree from an institute, which was not recognized by the NCTE, and which was recognized only from the academic session 2003-04, vide order dated 09.09.2004, and that in view of the guidelines dated 23.06.2016, and the order dated 01.11.2019, passed in WP(C) No. 4674/2017, the petitioner is not eligible for the appointment to the post of Principal. It is also stated that the State Selection Board had empanelled the candidates and recommended the name of the respondent No. 5, for being appointed as regular Principal of Abdul Hasib H.S. School, who secured second position, as the candidate who secured first position had been recommended for being appointed in his own school i.e. Nilbagan H.S. School as principal.

It is further stated that there was a mismatch in the pass percentage of the result of the school and therefore, the Joint Director of Secondary Education, Assam had conducted an enquiry and in the said enquiry report, it is stated that the actual pass percentage of the said school was taken note of in respect of Science stream only i.e. 43.33%, instead of 56.5%, as it occurred due to wrong information provided by the In-charge Principal of the said school with mala fide intention to continue as In-charge Principal of the said school. As per the enquiry report, the petitioner and the respondent No. 5 had secured equal marks, however, the enquiry report is incorrect as the Enquiry Officer had considered the pass percentage of marks of H.S. (Science stream) only, whereas as per the guidelines, the pass percentage of both Science and Arts streams is to be considered, and that the Enquiry Officer had travelled beyond her jurisdiction by offering/giving marks to the candidates, which could only be done by the School Selection Committee or the State Selection Board.

It is also stated that the State Selection Board reviewed the entire matter and passed the Order, bearing No. DSE/SSB/Principal/27/2017/pt-1/84, dated 12.02.2019, and recommended the name of the respondent No. 5 for appointment to the post of Principal of Abdul Hasib H.S. School and considering the pass percentage of both Science and Arts stream for the year 2015 and 2016 as per the guidelines, had awarded 11.1 marks to the respondent No. 5 and 11 marks to the present petitioner, and thereafter, the name of the respondent No. 5, who secured second position in the list, was recommended for being appointed to the post of Principal of Abdul Hasib H.S. School, and that he is also senior to the petitioner and under such circumstances, he has contended to dismiss the petition.

The respondent No. 3, in the affidavit-in-opposition, has taken a stand that on recommendation of the State Selection Board and subsequent Government approval thereof, vide letter dated 19.06.2017, the respondent No. 5 was appointed as regular Principal of Abdul Hasib H.S. School, vide order dated 21.06.2017. It is also stated that due to mismatch in the result statement of Abdul Hasib H.S. School, the respondent No. 1, vide letter dated 28.06.2017, had requested the Director of Secondary Education to enquire into the matter, and thereafter, the said enquiry was conducted by Smt. Mamata Hojai, Joint Director, Secondary Education and till then, appointment of the respondent No. 5, as regular Principal was kept abeyance. Thereafter, the respondent No. 5 had preferred WP(C) No 4304/2017, wherein the order dated 28.06.2017, was stayed, vide order dated 21.07.2017, and subsequently, one I.A.(C) No 2704/2017, was filed and then the interim order dated 21.07.2017, was vacated.

It is also stated that the Joint Director, Secondary Education Department conducted an enquiry on the matter and submitted report to the Government, dated 28.07.2017, and thereafter, the State Selection Board had reviewed the matter and passed the order dated 12.02.2019, by recommending the name of the respondent No. 5 for appointment to the post of regular Principal of Abdul Hasib H.S. School, as he secured 11.1 marks, out of 15 marks and the petitioner secured 11 marks out of 15 marks.

It is further stated that the petitioner was also selected for being appointed to the post of Principal, National High School, Lumding, and under such circumstances, it is contended to dismiss the petition.

The respondent No. 8 has also filed an affidavit-in-opposition, wherein it has been stated that Patharkandi College of Education, Patharkandi, Karimganj was granted recognition for B.Ed. Course for 60 intakes, vide order dated 24.01.2001. This contention of the respondent No.8, however, nullified the stand of the respondent No.5 in respect of the B.Ed. Degree of the petitioner.

The petitioner has filed an affidavit-in-reply to the affidavit-in-opposition filed by the respondent Nos. 3 and 5, denying the statements and averments made therein. According to him, the recommendation made by the State Selection Board, vide appointment order dated 08.03.2019, is bad in law and as such, the same is liable to be interfered with. It is also stated that the respondent No. 5 has not obtained a B.Ed. degree after obtaining permission from the competent authority and that power to review is vested in the School Selection Committee, under Rule 13(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (‘Rules of 2003’, for short), and that the State Selection Board has no such authority to review and therefore, he has contended to allow the petition.

Mr. Sarma, learned counsel for the petitioner submits that the actual merit of the candidates in the selection process has not properly been assessed and had the School Selection Committee awarded marks strictly in accordance with law and without bias; the petitioner would have definitely stood above the respondent No. 5. Mr. Sarma also submits that the entire selection process was carried out, to select the candidates of their own choice in violation of the guidelines and the established procedure and norms, and the purpose behind the same is to ensure the appointment of the respondent No. 5.

Mr. Sarma further submits that the State Selection Board, without scrutiny and proper verification of the record, had earlier approved the panel list, and in violation of the Rules of 2003, and that there is a requirement for reviewing the entire selection process by for calling the selection record, as the same has illegally been carried out.

Mr. Sarma also submits that the appointment of the respondent No. 5 has caused serious prejudice to the petitioner and deprived him of legitimate claim and as such, the appointment of respondent No. 5 is illegal, bad in law and mala fide, and as per the enquiry report, the respondent No. 5 and the petitioner secured 11 marks each and in that view of the matter, reviewing in the marks by the State Selection Board is illegal and as such, the recommendation of the respondent No. 5 to the post of Principal is also illegal.

Mr. Sarma further submits that since, as per the enquiry report, the respondent No. 5 and the petitioner secured 11 marks each and the petitioner being senior in age and in experience, is entitled to be recommended for the post of regular Principal of Abdul Hasib H.S. School, and under such circumstances, he has contended to allow the petition.

Per contra, Mr. Choudhury, learned Senior Counsel for the respondent No. 5, submits that there is no illegality in the recommendation made by the State Selection Board and the Board has reviewed the report submitted by the Enquiry Officer, who has awarded 11 marks each to the petitioner and the respondent No. 5. However, he submits that as per the Rules, the result of students of both Science and Arts streams are required to be considered, but in the instant case, the Enquiry Officer had only taken the pass percentage of students in Science stream, and as such, the State Selection Board has considered the same and thereafter, awarded 0.5 marks to the respondent No. 5 and thereafter, recommended his name.

Mr. Choudhury also submits that the State Selection Board has the authority to award such marks under the proviso to Section 13(5) of the ‘Rules of 2003’, and moreover, the authority of the Board has not been challenged in this petition by the petitioner.

Mr. Choudhury has also pointed out that the name of the petitioner has been recommended for being appointed as Principal of National High School, Lumding and there is no provision to recommend the petitioner for two schools simultaneously. And on this count also, the petition is not maintainable.

Under such circumstances, Mr. Choudhury submits that there is no illegality or irregularity in the appointment of the respondent No. 5 as the Principal of Abdul Hasib H.S. School and therefore, he has contended to dismiss this petition.

Mr. Dutta, learned standing counsel for the Secondary Education Department, being respondent Nos. 1 to 4, submits that the State Selection Board has rightly recommended the name of the respondent No. 5 and there is no illegality or irregularity in the same and therefore, he has contended to dismiss the petition.

Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record.

In view of the contentions being made and the pleadings by the parties, and also in view of the statements made by the respective counsel at the time of hearing, the points for determination, to be addressed by this Court, are as under:

The basic facts, herein this case, are not in dispute. Pursuant to the advertisement dated 18.06.2016, both the petitioner and the respondent No. 5 had applied for the post of regular Principal of Abdul Hasib H.S. School and accordingly, as many as 11 candidates applied for the same and appeared in the interview held on 11.12.2016. Thereafter, the School Selection Committee had prepared a panel of three candidates, namely, Faiz Md. Barbhuiyan who secured 13 marks, Abdul Rob/respondent No. 5 who secured 11.5 marks and Sankar Ranjan Paul/the petitioner who secured 11 marks, and accordingly, the name of respondent No. 5 was recommended for the post of regular Principal of Abdul Hasib H.S. School and he joined the said post.

It is also not in dispute that in view of the public complaint, the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, vide order dated 28.06.2017, had stayed the appointment order and directed to conduct an enquiry to the Director of Secondary Education. Accordingly, the Joint Director, Secondary Education Department had conducted an enquiry and submitted a report dated 28.07.2017, wherein, the Joint Director had found that the petitioner and the respondent No. 5 secured equal marks i.e. 11 marks.

Thereafter, the matter was considered by the State Selection Board and the said Board had found that as per the guidelines, bearing No. GB-EST/Guideline/Principal/3/2013/117, dated 23.06.2016, issued by the Director of Secondary Education, Assam, under leadership skill, 5 marks are earmarked, which is based on the result of HSLC/AHM/HSSLC of the current year 2016 and last year 2015 of the school in which the person is working at present, which implies that one has to take note of the result of both Arts and Science stream of the school, in which the person is working.

Thereafter, the Board had considered the results of both Arts and Science stream examination for the years 2015 and 2016 and thereafter, assessed the marks of the respondent No. 5 as 11.1 and the petitioner as 11. Since the respondent No. 5 had secured 11.1 marks, which is higher than the marks secured by the petitioner, his name was recommended for being appointed to the post of Principal, Abdul Hasib H.S. School.

It is the categorical contention of Mr. Sharma, learned counsel for the petitioner that the Board has no authority to award the marks as the said authority is vested in the School Selection Board and since School Selection Board has carried out its exercise by awarding marks to the petitioner and the respondent No.5, the Board has no authority to award mark. The counter submission of Mr. Choudhury is that the State Selection Board has the authority to award such mark under the proviso to Rule 13(5) of the ‘Rules of 2003’.

This Court, in order to appreciate the rival submissions of both the parties, has carefully gone through the relevant provision, which is extracted herein under:-

Since the proviso to Rule 13(5) has mandated the Board to make the selection of Principals and prepare the names of eligible candidates, when the Committee has failed to prepare the penal of names, it cannot be said that the Board has no power to award marks if any mistake is committed by the Committee. The Board cannot act like a post office and merely forward the penal prepared by the Committee to the Government.

In the instant case, the School Selection Committee has committed mistake in awarding marks to the candidates. The Committee had prepared a panel of three candidates, namely, Faiz Md. Barbhuiyan who secured 13 marks, Abdul Rob/respondent No. 5 who secured 11.5 marks and Sankar Ranjan Paul/the petitioner who secured 11 marks, and accordingly, the name of respondent No. 5 was recommended for the post of regular Principal of Abdul Hasib H.S. School. He was accordingly appointed to the said post. However, in view of the public complaint, the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, vide order dated 28.06.2017, had stayed the appointment order and directed to conduct an enquiry to the Director of Secondary Education. Accordingly, the Joint Director, Secondary Education Department had conducted an enquiry and submitted a report dated 28.07.2017, wherein, the Joint Director had found that the petitioner and the respondent No. 5 secured equal marks i.e. 11 marks. When the matter reached the State Selection Board, it had found that as per the guidelines, bearing No. GB-EST/Guideline/Principal/3/2013/117, dated 23.06.2016, issued by the Director of Secondary Education, Assam, under leadership skill, 5 marks is earmarked, which is based on the result of HSLC/AHM/HSSLC of the current year 2016 and last year 2015 of the school in which the person is working at present, which implies that one has to take note of the results of both Arts and Science stream of the school, in which the person is working. And then the Board, having considered the results of both Arts and Science stream examination for the years 2015 and 2016, assessed the marks of the respondent No. 5 as 11.1 and the petitioner as 11. And thereafter, the Board vide Order dated 19.06.2019, recommended the name of the respondent No. 5, and accordingly, he was appointed as Principal of Abdul Hasib H.S. School.

Having carefully perused the relevant proviso to Rule 13(5) of the ‘Rules of 2003’, and also considering the given factual matrix, this Court finds that the recommendation made by the State Selection Board dated 19.02.2019, suffers from any irregularity or illegality requiring any interference of this Court. And in that view of the matter, it cannot be said that the impugned appointment order of the respondent No. 5 as the Principal of Abdul Hasib H.S. School is illegal or arbitrary. The Issue No. (i) and (ii) formulated above has to be answered in negative and accordingly, the same stands answered.

Moving forward to the Issue No.(iii), this Court finds that the petitioner has admittedly not challenged the said order of the State Selection Board. Since the order of the State Selection Board, dated 19.06.2019, on the basis of which the respondent No. 5 was recommended and appointed as Principal of Abdul Hasib H.S. School, has not been challenged in this petition, this Court is of the view that the petitioner cannot successfully challenge the impugned order of appointment of the respondent No.5 as the Principal of Abdul Hasib H.S. School. Mr. Choudhury, learned counsel for the respondent No. 5 has rightly pointed it out during arguments and this Court finds sufficient force in his submission and is inclined to record concurrence to the same. The Issue No. (iii) has to be answered in negative and accordingly the same stands answered.

In the result, this Court finds no merit in this petition and accordingly, the same stands dismissed leaving the parties to bear their own costs.