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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. KOTISWAR SINGH, NANI TAGIA, JJ.
Shri Dilip Kumar Sarma, S/O Sri Nagendra Nath Sarma – Appellant
VERSUS
The State Of Assam, Represented By The Commissioner And Secretary To The Govt. of Assam - Respondents
WRIT APPEAL No.130/2022
Decided on : 19-09-2022
Assam Secondary Education (Provincialisation) Service Rules, 2003 - Rule 12(2)(ii) & (iii) - Employment and Service matter - Advertisement - Applications - Post of Principal - An advertisement was issued by School Selection Committee of Singimari Higher Secondary School inviting applications from eligible candidates for filing up post of Principal of said School on regular basis - Candidate must have 15 (fifteen) years of teaching experience as a Post Graduate Teacher or 17 (seventeen) years as a Graduate Teacher in a provincialised Higher Secondary School - Other conditions may not be relevant for our purpose inasmuch as issue involved in this proceeding is about eligibility criteria of candidates on which basis writ petition - Whether such a plea based on disputed facts could be raised at the appellate stage
Finding of Court :
On basis of recommendation made by competent Selection Committee and as approved by State Government, present appellant, being most meritorious candidate was appointed as Principal of said School on regular basis vide order dated - Appellant, accordingly, joined post of Principal - It may be noted that (the writ petitioner) were placed at second and third positions respectively, in order of merit, after appellant - Court have also noted that though aforesaid Office Memorandum was already in existence when impugned judgment and order was passed said Office Memorandum was never brought to notice of learned Single Judge - In this appeal Court do not find this ground to be good enough to interfere with decision of learned Single Judge dated for reasons discussed above - Court hold that there is no infirmity in impugned judgment and order dated passed by learned Single Judge in WP(C) No. directing consideration of respondent No.6, for appointment to post of Principal of Singimari Higher Secondary School and accordingly, Court are not inclined to interfere with it.
Result : Present appeal stands dismissed
JUDGMENT :
N. KOTISWAR SINGH, J.
1. Heard Mr. K.N. Choudhury, learned Senior counsel assisted by Mr. R.M. Deka, learned counsel for the appellant. Also heard Mr. U. Sarma, learned Standing Counsel, Education (Secondary) Department appearing for the State respondents and Mr. D.K. Das, learned counsel appearing for respondent No.6.
2. The present appeal has been preferred against the order dated 23.03.2022 passed by the learned Single Judge in WP(C) No.5717/2017 directing the State respondents to consider the case of the present respondent No.6, who was the writ petitioner in the said writ petition for appointment to the post of Principal of Singimari Md. Ali Higher Secondary School by holding that the present appellant did not fulfill the eligibility criteria for appointment to the said post of Principal.
3. Before we proceed to examine the rival contentions of the parties, it may be apposite to refer to the background facts of the case briefly.
4. An advertisement was issued on 22.06.2016 by the School Selection Committee of Singimari Md. Ali Higher Secondary School inviting applications from the eligible candidates for filing up the post of Principal of the said School on regular basis.
As per the said advertisement, a candidate must have 15 (fifteen) years of teaching experience as a Post Graduate Teacher or 17 (seventeen) years as a Graduate Teacher in a provincialised Higher Secondary School. Other conditions may not be relevant for our purpose inasmuch as the issue involved in this proceeding is about the eligibility criteria of the candidates on which basis the writ petition, WP(C) No.5717/2017 was allowed and the present appeal, WA No.130/2022 has been preferred.
5. Pursuant to the said advertisement dated 22.06.2016, the present appellant, the respondent No.6 (Md. Ibrahim Ali), another candidate, namely, Md. Zakir Hussain [Writ petitioner in WP(C) 4004/2017] and others had applied for the said post of Principal. On the basis of the recommendation made by the competent Selection Committee and as approved by the State Government, the present appellant, Dilip Kr. Sarma being the most meritorious candidate was appointed as the Principal of the said School on regular basis vide order dated 22.06.2017. The appellant, accordingly, joined the post of Principal on 27.06.2017. It may be noted that Md. Zakir Hussain and Md. Ibrahim Ali (the writ petitioner) were placed at the second and third positions respectively, in order of merit, after the appellant Dilip Kumar Sarma.
6. Before the present respondent No.6 filed the writ petition, WP(C) No.5715/2017, the appointment order of the appellant was challenged by another candidate Md. Zakir Hussain, now deceased, by filing a writ petition, being WP(C) No.4004/2017 on the ground, amongst others, that the present appellant did not possess the requisite 17 (seventeen) years of teaching experience as a Graduate Teacher as on the last date of submission of application forms and as such, was not eligible for appointment as the Principal of the Higher Secondary School.
7. Learned Single Judge, in the aforesaid writ petition, WP(C) No.4004/2017 filed by Md. Zakir Hussain, passed an order on 30.06.2017 directing maintenance of status-quo.
8. According to the appellant, the said order of status-quo passed by the learned Single Judge in the aforesaid writ petition, WP(C) No.4004/2017, was misinterpreted by the respondent No.2 and kept the order of appointment of the appellant in abeyance vide order dated 17.07.2017 and allowed the writ petitioner in WP(C) No.4004/2017, Md. Zakir Hussain to continue as in-charge Principal of the said School.
9. Being aggrieved by the aforesaid order dated 17.07.2017 passed by the respondent No.2, the appellant challenged the said order dated 17.07.2017 by filing a writ petition, being WP(C) No.4437/2017.
10. In aforesaid writ petition, WP(C) No.4437/2017, the learned Single Judge vide order dated 28.07.2017 stayed the operation of the said order dated 17.07.2017 issued by
Point of Law : 34. Irregular appointees cannot claim seniority over regular appointee - If an order is bad in its inception, it does not get sanctified at a later stage.
Point of Law : Principle of estoppel or waiver will also not be attracted in the instant case as the challenge is on a ground which came to light after the recruitment process was over. In any case, ....
The 'year of recruitment' for determining age eligibility for a promotional post is the year in which the vacancy arises. Once eligibility is established, administrative allegations or disciplinary p....
Eligibility for the appointment of a principal must be assessed as of the vacancy date, and subsequent qualifications can establish entitlement to the position.
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