Violation of legal right to be appointed and the provision of notional appointment for pensionary benefit in cases of denial of appointment by following due procedure of law.

JUDGMENT & ORDER :

Heard Mr. K.A Mazumder, learned counsel for the petitioner, Mr. B Gogoi, learned counsel for the respondents in the Finance Department, Government of Assam and Mr. R Mazumdar, learned counsel for the respondents in the School Education Department, Government of Assam.

2. The petitioner participated in a selection process for appointment of LP School Teachers as per the advertisement dated 16.01.1986. As the appointments were not forthcoming and the petitioner along with others who had participated in the said selection process were of the view that they have a legal right to be appointed, had instituted Title Suit No. 55/1990 in the Court of the learned Assistant District Judge, Hailakandi which was decreed by the judgment dated 07.09.1993, by which there was a declaration that the plaintiffs therein are entitled to get appointment against vacant posts on the basis of the panel and the defendants are bound to make the appointments strictly maintaining serial position of the panel prepared by the Elementary Education Advisory Board of Hailakandi. The said judgment and decree in the Title Suit resulted in the communication dated 07.05.1997 of the Director of Elementary Education, Assam, the relevant portion of which is extracted as below:-

“With reference to the above I am to direct you to comply with the orders passed by the court by appointing the following petitioners as L.P School teachers against following available vacancies at your disposal since limitation for filing review application has already expired long back as stated in your letter and the contempt proceeding has been pending in the Hon’ble High Court regarding the same matter. This is also as per advice of Govt. Pleader, Hailakandi as enclosed with your letter dated 5.5.1997.

Action taken may please be intimated to this office.

1. Shamsuddin Laskar

2. Taimus Uddin Mazumder

3. Imdadulla Laskar

4. Abdul Rejaque Barbhuiya

5. Taj Uddin Laskar

6. Khudeja Khatun Choudhury”

3. A reading of the communication makes it discernible that in execution of the decree in Title Suit No. 55/1990, the authorities had processed the claim for appointment of the petitioner and her name was included along with five other persons as mentioned therein for appointment. But, in a later communication dated 30.03.2001, resulted in the name of the petitioner Khudeja Khatun Choudhury being deleted from Serial No. 6 as reflected in the earlier communication dated 07.05.1997 and the name of another person Ajmat Ali Choudhury was substituted in her place.

4. No material is available as to why the name of Ajmat Ali Choudhury was included although it is the petitioner who was processed for appointment pursuant to the judgment and decree of the civil Court. In the circumstance, the other five persons who were processed along with the petitioner in the communication dated 07.05.1997 and the other person Ajmat Ali Choudhury whose name was included in the communication of 30.03.2001 were appointed.

5. The aforesaid inconsistency ultimately led to Writ Appeal No. 169/2022 instituted by the petitioner Khudeja Khatun Choudhury which was given a final consideration by the order dated 13.05.2022, wherein there was a direction to the State respondents to consider the application of Khudeja Khatun Choudhury for grant of SIU approval as per a letter dated 31.05.2017 as well as based upon the statements made by the State authorities in their affidavit in opposition filed on 20.11.2020.

6. Accordingly, we understand that as per the writ appellate order dated 13.05.2022, a legal right had accrued to the petitioner for an appointment by considering grant of SIU approval in her favour. As the school Education Department had rejected the claim of the petitioner, being aggrieved, the present writ petition is instituted.

7. Having gone through the materials on record, it is discernible that firstly a legal right to be appointed crystallized in favour of the petitioner as per the judgment and decree in Title Suit