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2022 Supreme(Gau) 327
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Hassina Dilruba W/o Md. Ayub Islam and D/o Jainul Abedin – Appellant
Versus
The State Of Assam And 2 Ors – Respondents
WP(C) 4608, 4838, 4835 of 2016
Decided on : 05-05-2022
Advocate Appeared:
For the Appellant : MR.K.N. CHOUDHURY
Point of Law : There are two exceptions to the principles of natural justice, namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply.
Headnote:
Constitution of India, 1950 - Article 30(1), 226 - Assam Madrassa Education (Provincialised) Act, 1995 - Section 5(1) - Challenged termination by a common order - There are two exceptions to the principles of natural justice, namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply (Para 13).
Findings of the Court : It would be seen that Selection Committee which recommended Petitioners consisted of the Member and Member Secretary who were close relatives of Petitioners and as such said recommendations made by the Selection Committee were on the face of it illegal insofar as the Petitioners are concerned - Issuance of a notice would not change facts and as such, the same could come within one of the exceptions to the requirement of principles of natural justice - Now let this Court take into consideration, the question of prejudice - The facts would show that after the initial order which was passed, Petitioners had submitted a joint appeal and in pursuance to the appeal again an enquiry was conducted through the Joint Secretary to the Government of Assam and on the basis thereof a report has been submitted to the effect that the Member and the Member Secretary were close relatives to the Petitioners and as such the question of prejudice also does not arise, as in pursuance to the appeal a fresh enquiry was again conducted in that regard.
Result : Writ petitions dismissed
JUDGMENT :
Heard Mr. R. Dubey, the learned counsel for the Petitioner and Mr.R. Majumdar, the learned Standing Counsel appearing on behalf of the Secondary Education Department.
2. All the three writ petitions are taken up together taking into consideration that the Petitioners in all the three writ petitions have been challenged the termination by a common order dated 17/2/2016; the order dated 10/12/2015 passed by the Secretary to the Government of Assam, Education Department by which the Petitioners appointments were cancelled with immediate effect as well as also the order dated 22/7/2016, and the dismissal of the joint appeal filed by the Petitioners by the Director of Madrassa, Education, Assam.
3. The facts of the instant case is that in the year 1995, the State Government enacted the Assam Madrassa Education (Provincialised) Act, 1995 (for short ‘the Act of 1995’) by which the services of teaching and non teaching staff of 74 Madrassas were provincialised, however, the property of the said Madrassa remained with the Managing Committee of the said concerned Madrassas. Thereupon the State Government took steps for filling up various posts of teaching and non teaching staff of 74 provincialised Madrassas under the Act of 1995 and for that purpose all required approval including approval from the Finance Department was taken. Initially there was approval of 323 posts which was later increased to 470 posts, which would be evident from the letter dated 19/4/2008 as well as from the list annexed with the letter dated 21/6/2012 issued by the Director of Madrassa Education, Assam.
4. The Director of the Madrassa Education, Assam vide Office Letter dated 13/9/2012 communicated the Notification dated 12/9/2012 to all the institutions directing the concerned heads of the Institutions to issue advertisements as per the Notification and draft advertisement enclosed therewith and further instructed to complete the selection process.
5. At this stage, it may be relevant herein to mention that in terms with the Notification dated 12/9/2012 the Government of Assam, Education Secondary Department in contemplation for quite some time, the decentralization of the process of selection of candidates for filling up of essential unreserved sanctioned vacant posts and procedure for selection and appointment of candidates in Senior/Title Madrassas and Arabic Colleges in the State had issued the said Notification. It was decided by the Government in exercise of the power conferred under the provision of Article 30(1) of the Constitution and Sub-Section (1) of Section 5 of the Act of 1995 to adopt a particular procedure stipulated in the notification for filling up of the unreserved vacant posts in Senior/Title Madrassas and Arabic Colleges except the posts of Principals/Superintendence and Grade –IV under the Director of Madrassas Education, Assam.
6. In terms with the a communication dated 13/9/2012 advertisements were issued for filling up of 470 Nos. of vacant posts. The respective details stated in the writ petitions are not relevant but it is pertinent to mention that all the three petitioners participated in the selection process and their names were recommended by the Selection Committee of the Respondent No. 4 i.e. Kadamoni Senior Madrassa. Thereupon the Respondent No. 4 i.e. Kadamoni Senior Madrassa sent the results of selection to the Respondent No. 3 vide a Communication dated 17/5/2013 for appointment to the post of Assistant Teacher/Librarian/Junior Assistant of Kadamoni Senior Madrassa to the Commissioner and Secretary to the Government of Assam Education (S) Department. In the said Communication the Petitioner’s name in W.P.(C) No. 4608/2016 appears at Serial No. 5; the Petitioner’s name in W.P.(C) No. 4835/2016 appears at Serial No. 11 and the Petitioner’s name in W.P.(C) No. 4838/2016 appears at Serial No.12. The said approved list which was forwarded to the Respondent No. 2 was also published in the newspaper by the Respondent No. 3 a
