Case of Assam - Recruitment of Teachers Through Old Advertisement
Case of Assam - An advertisement for posts of teacher issued on 27.02.2003 , Fresh advertisement for the same posts issued on 25.8.2007.
Highcourt quashed the advertisement dated 25.8.2007, and direct -
we direct the State to conduct the recruitment process for the above mentioned 254 posts for which the authorities of the State had issued advertisement dated 8.2.2003 by subjecting only those candidates,
who responded to the above mentioned advertisement
(i.e they include only those who applied for advertisement dated 08.02.2003 )
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If you people have any better interpretation, then you can put your views through comment. So that I can correct interpretation
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;
MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL PRADESH)
WA No.358 of 2007
APPELLANTS:
1. Abdul Hai Ahmed,
S/o Aftab Uddin Ahmed
Vill & PO Begribari
Dist Dhubri, Assam.
2. Smti.Mumtaz Begum
D/o Late Rustam Ali
Vill. Kokila Uttarpara
PO Chakla-783392
Dist Bongaigaon, Assam
3. Dilnur Rahman
Vill. Balagaon
PO Dhudrakuchi
Dist Barpeta, Assam
4. Md. Anzarul Azam Fakir (S/L No.99)
(Economics), S/o Hafizur Rahman,
Vill Samdhara,PO Dagaon,
District Nagaon(Assam)
5. Md.Azmal Khan (S/L No.86)(Economics)
S/o Khurshed Ali Khan,Vill & PO Dagaon
District Nagaon,Assam
6. Binoy Kumar Sarmah (S/L No.33) (Assamese)
Vill & PO Borigaon,Dist Darrang,Assam
7. Gagan Ch. Kalita(S/L No.97) (Economics)
Vill & PO Baranghati,Dist Kamrup,Assam.
8. Sri Pranjal Bhuyan(S/L No.170)(History)
vill Chowdhapunia PO Panbari,
Dist. N. Lakhimpur, Assam
9. Jibon Khanikar (S/L No.112) (English)
C/o Mineswar Kanikar,Vill Charing Agnibor,
Dist Sivasagar,Assam
10. Ganesh Ch. Deka (S/L No.224)(Pol. Science) Mangaldoi,Assam
11. Mrs. Rulee Konwar Gogoi (S/L No.18)(Assamese)
W/o Sidheswar Konwar
Vill Bania Phukuri Gaon
PO Dopdar Dist Sivasagar Assam
12. Sri Raju Kr. Kakoti (S/L No.169) (History)
Vill Hatibat PO Nagabonda
Dist Morigaon,Assam
13. Sri Anil Deka (S/L No.234)(Pol. Science)2
Vill Gomura PO Sarthebari
Dist Barpeta,Assam
14. Sri Diganta Hazarika (S/L No.81) (Chemestry)
Bahakabari, Kampur,Nagaon,Assam
15. Sri Kamal Kr. Barman (S/L No.181) (History)
Aminkata,Kokrajhar,Assam
16. Sri Pabon Deka (S/L No.212) (Math)
Athera, Puthimari,Kamrup,Assam
17. Nazemish Sakib (S/L No.21)(Assamese) Barpeta,Assam.
18. Debojit Boruwa (S/L No.155)(Geography)
Vill Khamikargaon PO Missamaria,
Golaghat,Assam
19. Bhupen Kalita (S/L No.238) (Pol.Science)
Vill & PO Japia,Assam
20. Akhil Joti Laskar (S/L No.186)(History)
Niz Narikari,Nagaon,Assam
21. Atik Ullah Khan (S/L No.121)(English)
Marigaon Town,Assam
22. Sri Jitumoni Saikia (S/L No.163)(History)
Milanpur,Biswanath Chariali,
Sonitpur,Assam
23. Mrs. Rini Saud,(S/L No.31) (Assamese)
Vill Uriamguri PO Bamuni bill,Dibrugarh
24. Bhoben Doley (S/L No.174) (History)
Jorhat,Assam
25. Mrs. Jeuty Gohain(S/L No.6) (Assamese)
Kaka Pathar,District Tinsukia
26. Motiur Rahman (S/L No.71) (Botany)
Vill & PO Mancachar,Dhubri,Assam
27. Suren Dutta (Sl No.227)(Pol Science) Sonitpur,Assam
28. Rijumoni Gohain (S/L No.101) (Math)
District Tinsukia,Assam
29. Surjit Das( S/L No.210)(Math)
Dist Dhubri,Assam
30. Amalendu Das (S/L No.222) (Physics),
Dhubri,Assam
31. Inamul Hoque (S/L No.153)(English)
Vill Selmari,PO Magurimari
32. Binita Rajkhowa (S/L No.131)(English)
Vill Silikhaguri,Majuli3
33. Aminul Hoque (S/L No.78) (Chemistry)
34. Bibha Devi (S/L No.64)(Botany)
Nalbari,Assam
35. Madusmita Saikia (S/L No.115) (English)
Namti Pather,Assam
36. Navajyoti Hazarika (S/L No.200) (Math)
Vill Solalgaon PO Chatia
37. Dhrubajyoti Tamuly (S/L No.191)(History)
Vill Basudeobari PO Jakhalabanda,
Nagaon,Assam
38. Anindita Baruah (S/L No.154)(Geography)
Amolapatty,Sivsagar,Assam
39. Minu Borah (S/L No.32) (Assamese)
40. Jawahira Tabbasum (S/L No.251)(Zoology) Mangoldoi,Ward
No.2,Assam
41. Sri Mukul Ch. Kalita (S/L No.206)(Math)
Vill Boreri,PO Deomornoi,Darrang,Assam
42. Santanu Nath (S/L No.176)(History)
Mongoldoi, Ward No.4, Darrang, Assam
BY ADVOCATES:
Mr. A Sarma
Mrs. S Sarma
Ms. R Deori
Ms. NM Deka
RESPONDENTS:
1. The State of Assam, represented by the Commissioner &
Secretary,
Education (Secondary) Department,
Govt. of Assam, Dispur, Assam
2. The Director of Secondary Education,
Government of Assam, Kahilipara,
Guwahati-19.
BY ADVOCATES:
Mr. VM Thomas,SC Education Deptt.4
WA No.389 of 2007
APPELLANTS:
1. Mahmuda Begam,
W/o Joynal Abedin Ahmed,
R/o South Salmara part I
PO South Salmara
District Dhubri,Assam.
2. Md.Zahidur Rahman Shah,
S/o Abul Kasem Shah
R/o Village Howrar Par
PO Piazbari
District Dhubri,Assam
3. Md.Aktar Hussain Sheikh,
S/o Sakim Uddin Ahmed
R/o Village Uzan Bazra
PO Hazirhat
District Dhubri,Assam
BY ADVOCATES:
Mr. SC Biswas
Mr. AK Hussain
Mr. SH Hussain
RESPONDENTS:
1. The State of Assam,
Represented by the Commissioner
and Secretary to the Govt. of Assam,
Education (Secondary) Department,
Dispur, Guwahati-6, Assam
2. The Director of Secondary Education,
Government of Assam, Kahilipara,
Guwahati-19.
BY ADVOCATES:
Mr. VM Thomas,
Standing Counsel,Education Deptt.
WA No.238 of 2005
APPELLANTS:
1. Md. Momin Ali,
S/o Late Taib Ali
R/o Vill Nader Kuti,PO Barbanda
Dist. Dhubri5
2. Anowar Hussain Ahmed
S/o Late Basiruddin Bepari
R/o Vill Thaksal PO Thaskal
Dist Dhubri.
3. Sri Proshanta Kr. Dutta,
S/o Sri Jitendra Nath Dutta
R/o Subashpally,Ward No.2
PO Gauripur,Dist Dhubri
4. Md. Mazahar Ali
S/o Md. Jashamatulla Bepari
R/o Vill Gharialdanga,Pt.II
PO Mahamayahat,Dist Dhubri
5. Md. Anisur Rahman
S/o Md. Abdul Ahad Sk
R/o Vill Shyamcharaner Kuti, Pt.I
PO Shilair par, Dist Dhubri
6. Mahbub Azharul Islam Mahazeria
S/o Mokbul Hussain Mahazerin
R/o Vill Nayapathowa PO Cirakuti,
Dist Dhubri
7. Azizul Haque Sarkar
S/o Haji Abdul Wahad Sarkar
R/o Vill Bhamandanga Pt.I
PO Jhapurabari(Agomoni)
Dist Dhubri
8. Samir Sen,
S/o Subal Ch. Sen
R/o Vill Sheunagen, PO Agomoni
Dist Dhubri
9. Md. Mizanur Rahman Bhuyan
S/o Haji Md. Amzad Ali Bhuyan
R/o Vill & PO Piradhara
PS Abhayapuri,Dist Bongaigaon
10. Miss Hafiza Zirmat Sarkar
D/o Hadi Hussain
R/o Vill Chandargaon,
PO Seramuri
Dist Dhubri
11. Safiquel Hoque
son of Alhaj Samser Ali
resident of vill Muslimghopa
PO Sipajhar, Dist Darrang
12. Mrs. Anjali Devi
wife of Mukul Ch. Sarma
resident of vill and PO Hazarikapara
PS Sipajhar,Dist Darrang.6
13. Smti Rowshan Ara Khanam
w/o Shajahan Bhuyan
resident of vill Padmapara
Dist Barpeta
14. Sri Hannanur Rahman
son of
Resident of vill
District
15. Sri Mukul Kalita
S/o Bhumidhar Kalita
Resident of vill Deomornoi
Dist Darrang
16. Abdul Hai Ahmed
s/o Aftab Uddin Ahmed
Vill Bagribari Dist Dhubri
BY ADVOCATES:
Mr. AS Choudhury, Sr. Adv.
Mr. R Mazumdar
Mr.I Hussain
Mr.A Malique, Mr.R Ali &
Mrs. NN Ahmed
MAIN RESPONDENTS/
WRIT PETITIONERS:
1. All Assam Post Graduate School Teachers Association,
represented by its General SecretarySri Dwijen Chandra Das,
Rangia Higher Secondary School,
Rangia,District Kamrup.
2. Shri Dwijen Chandra Das
Assistant Teacher,
Rangia Higher Secondary School
Rangia,District Kamrup
PROFORMA RESPONDENTS/
RESPONDENTS:
3. The State of Assam,
represented by the Chief Secretary
to the Govt. of Assam,
Dispur, Guwahati-6
4. The Commissioner and Secretary
to the Government of Assam,
Finance Department,
Dispur, Guwahati-6
5. The Secretary to the Government of Assam, Education
Department,
Dispur,Guwahati-67
6. The Director of Secondary Education,
Assam, kahilipara,Guwahati-19.
BY ADVOCATES:
Mr. VM Thomas,
Standing Counsel,Education Deptt.
Mr. AK Goswami,Sr. Adv. for Private Respondents.
Date of hearing
& Judgment : 11th December,2008
BEFORE
HON’BLE THE CHIEF JUSTICE MR. J.CHELAMESWAR
HON’BLE SMTI. JUSTICE A. HAZARIKA
JUDGMENT AND ORDER(ORAL)
(J. Chelameswar, CJ)
These three appeals are interconnected. WA No.238/05 is preferred aggrieved by the judgment and order dated 4.1.2005 in WP(C) Nos.7933/03 & 8319/03. WA Nos.358/07 & 389/07 are preferred
aggrieved by the judgment and order dated 31.7.2007 in a batch of writ petitions, one of such writ petition is WP(C) 908/07. The appellants in WA No.358/07 are the petitioners in the abovementioned writ petition
i.e., WP(C) 908/07. The appellants in WA No.389/07 are the petitioners in writ petition i.e., WP(C) 1975/07.
2. By an advertisement dated 8.2.2003, the Director of Secondary Education, Assam, invited applications for filling up of posts of Post Graduate Teachers in the various provincialised Higher Secondary Schools of Assam. According to the said advertisement, the applications were required to be submitted in the respective Schools, where vacancies existed, as confirmed by the Inspector of Schools concerned. It may be mentioned that on the above date of the advertisement, the recruitment process was governed by the Rules 8
framed by the State of Assam known as “The Assam Secondary Education (Provincialised) Service Rules, 1982 framed under Article 309 of the Constitution of India. The appellants in WA Nos. 358/07 &
389/07 are some of the candidates, who applied in response to the abovementioned advertisement.
3. Soon after the abovementioned advertisement, writ petition being WP(C) 7933/03 and 8319/03 came to be filed in this Court. WP(C) 7933/03 was filed by an unregistered Association of Assistant Teachers in the High and Higher Secondary Schools of Assam having Post Graduate Degrees whereas the WP(C) 8319/07 was by one such teacher.
A few days after the above mentioned advertisement came to be issued, the above mentioned Rules of 1982 was repealed and a fresh set of Rules known as “The Assam Secondary Education (Provincialised) Service Rules, 2003” framed under Article 309 of the Constitution of
India came into force on the 12th August,2003.
4. The grievance of the petitioners in the abovementioned two writ petitions i.e., (WP(C) Nos.7933/03 & 8319/03 is that under 1982 Rules, the petitioners in WP(C) No.8319/03 and the candidates, who were similarly situated are entitled for some weightage in the matter of recruitment of teachers contemplated under the aforementioned advertisement and that the petitioners apprehended that in the view of
the repeal of 1982 Rules the authorities of the State would follow the procedure contemplated under the
new Rules of 2003 referred to above, which do not provide for such a weightage.
The
petitioners, therefore, prayed that the respondents be directed to conduct the recruitment process in accordance with the procedure as contemplated under Rules 9 of 1982 by giving due weightage to such teachers, who were similarly situated as the petitioner in WP(C) No.8319/03.
5. By the judgment dated 4.1.2005, the learned Judge of this Court held that the recruitment pursuant to the Notification dated 8.2.2003 must be made strictly in accordance with the Rules of 1982 referred to above. The learned Judge further directed that the members of the Association referred to above or any other similarly situated teachers but not responded to the advertisement also be permitted to participate in the selection process.
6. While the abovementioned writ petition was pending in this Court, the authorities of the State proceeded with the recruitment process. From the materials on record, it appears that such recruitment process was conducted in accordance with the scheme of Rules, 2003 referred to above. As a matter of fact, by the judgment under appeal in the other two writ appeals i.e., WA Nos. 389/07 & 358/07, a learned Judge of this Court recorded a categorical finding in this regard that the recruitment process had been conducted under the
scheme of Rules,2003. In the purported exercise of power under the Rules of 2003, the Commissioner and
Secretary to the Govt. of Assam by a communication dated 27.2.2006 ordered the Director of Secondary
Education, Assam to issue necessary appointment letters in favour of 254 candidates, whose names were listed in the annexure to the said document.
The communication dated 27.2.2006 reads as follows:
“I am directed to forward herewith the list of selected candidates for the post of Subject Teachers in Provincialised Higher Secondary Schools recommended by the Selection Committee and duly approved by the Government for appointment of the candidates as per vacancies notified earlier as per recommendation of the Selection Committee and approval of the Government. The names of the candidates considers for appointment against various subject as per vacancies notified and places of their posting are shown of Annexure-I enclosed herewith for your necessary action and issue of necessary appointment letters immediately considering the fact that the Provincialised Higher Secondary Schools are suffering badly due
to non availability of Subject Teachers.
The appointments will however, be subject to necessary police verification and observance of the formalities required as per rule.
Further, there shall be a clear direction in the appointment letters for furnishing the written undertaking as required vide Finance Department’s Letter No.BW.3/2003/Pt-II/1 dated 125/1/2005 by the appointees at the time of joining their respective posts. No joining report should be accepted without furnishing
this undertaking as per prescribed format of Finance Department.
The Original select list of the Selection Committee mentioned above along with detail statements of candidates received are returned herewith. Appointment letters please be issued within three days and necessary proposal may be submitted for moving Finance (SIU) Department in prescribed format for ex-post-facto approval.”
7. Notwithstanding such a communication, none of the 254 candidates, whose names were found in the list annexed to the said communication, came to be appointed. Therefore, some of the candidates, whose names found in the abovementioned list, approached this Court by way of writ petition being WP(C) 908/07 and 1975/07 praying that the State be compelled to make appointment pursuant to the abovementioned communication dated 27.2.2006. By the judgment under appeal in these two appeals i.e., WA 358/07 & 389/07, the learned Judge of this Court dismissed the writ petitions on the ground that though the communication dated 27.2.2006 was issued by the Commissioner and Secretary to the Govt. of Assam, Education (S&E) Department, it was later realized by the State of Assam that the selection of the candidates as per the list annexed to the said communication was not in conformity with the requirement of law i.e.,
Rules of 1982 and, therefore, appointment orders were not issued and the State took a decision not to act upon the said communication.
Further, it appears from the material on record that a fresh advertisement dated 25.8.2007 was issued by the State proposing to fill up the above mentioned 254 posts consequently inviting applications from eligible candidates.
8. Learned senior counsel, Mr. A Sarma appearing for the appellants in WA 358/07 argued that the conclusion of the learned Single Judge in the judgment dated 4.1.2005 that the selection pursuant to the advertisement dated 8.2.2003 ought to have been conducted only under the scheme of Rules,1982 and not under Rules of 2003, which, in turn, form the basis for rejecting the prayer of the appellants in the aforementioned two appeals is itself erroneous. He further submitted that the learned Judges while deciding the issues in the writ petitions, which are the subject matter of appeal in these appeals, failed to take into consideration the effect of the proviso to Rule 32 of the Rules, 2003 which stipulates that the action taken under the Rules of 1982 shall be deemed to have been taken corresponding with the 2000 Rules. According to Mr Sharma the purpose of the said proviso is to enable the State to conduct the action, originally initiated
under the 1982 Rules, in accordance with the Rules of 2003 Rule 32 reads as follows:
“32. Repeal and savings – The rules corresponding to these rules and in force immediately before commencement of these rules are hereby repealed.
Provided that all orders made or action taken under the rules so repealed or under any general orders ancillary thereto shall be deemed to have been validly made or taken under the corresponding provisions of these rules.”
9. We regret our inability to accept the submission of the learned senior counsel Mr. A Sarma in view of the fact that under true and proper construction of the proviso to Rule 32 of the Rules 2003, we are of the opinion that all that the provisio to Rule 32 of the Rules 2003 seeks to stipulate is that notwithstanding with repeal of the earlier set of Rules i.e., 1982 Rules all action taken under the said Rules is by legal fiction to be treated as action taken under the corresponding provisions of the later Rules. This is a time tested device adopted by the
Draftsman in framing legislation. General Clauses Act, 1897 made specific provisions dealing with the consequences of the repeal of enactment. Section 6 of the Assam General Clauses Act, 1915 which is
substantially similar to Section 6 of General Clauses Act, 1897 declares as follows:-
“6. Effect of repeal.- Where any Act repeals any enactment hitherto made, or hereafter to be made, then unless a different intention appears, the repeal shall not –
(a) revive anything not in force or existing at the time at which the repeal takes
effect; or
(b) alter the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;
10. As the Rules of 2003 referred to earlier or rules framed under Article 309, which repealed the 1982 Rules, also made in exercise of Article 309 the effect of such repeal is to be decided in accordance
with the provisions of the Assam General Clauses Act, 1915. It can be seen that Section 6 seeks to protect the legality of the orders and also the rights and privileges acquired during the subsistence of the repealed
enactment. It also preserves the obligations or liabilities accrued during such subsistence. It also declares that any legal proceeding or remedy etc. initiated during the subsistence of the repealed enactment would
continue to be prosecuted as if the repeal never took place. The true import of the proviso to Rule 32, in our opinion, is not to affect the operation of Section 6 of the General Clauses Act, 1897 or Section 6 of
the Assam General Clauses Act, 1915, which is substantially similar to Sec 6 of the General Clauses Act, 1897. The effect of Section 6 of the Assam General Clauses Act, in our view, is similar to the effect of
Section 6 of the General Clauses Act, 1897. No doubt, the Legislature while repealing any law and replacing it by a new law can stipulate such consequences as the Legislature deems fit shall follow such a
repeal. If the Legislature is silent about the consequences of the repeal the provisions of the General Clauses Act, 1897 or the Assam Act, 1915automatically apply by virtue of the declaration contained in
Section 6. If any provision is made by the repealing enactment declaring the consequences of the repeal the language of such a declaration should be examined in juxtaposition with the language of Section 6 of
the General Clauses Act, 1897/ Assam Act, 1915. Unless the language of the repealing enactment is found to be plainly and expressly contrary to the scheme of Section 6 of the General Clauses Act, 1915 this court
is not to infer a departure from the principles enshrined under the General Clauses Act. Having regard to the language of the proviso of Rule 3 we are not able to perceive any intention of the Legislature (in
the present case the Governor acting under Article 309) to depart from the scheme of Section 6 of the General Clauses Act. In our view, the proviso is more akin to the provisions under Section 24 of the General
Clauses Act, 1897 or Section 26* of the Assam General Clauses Act, 1915.
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26. Continuation of orders etc, issued under enactments repealed and re-enacted. Where any 14
11. In the matter of recruitment in public service, it is settled law of this Country that “Rules of the game cannot be changed in the midstream”. [(2008) 3SCC 512, K Manjusree vs. State of Andhra
Pradesh & Anr]. This is a principle enunciated by the Supreme Court in the background of the requirements of Articles 14 and 16 of the Constitution of India as permitting the change of the Rules of recruitment midstream would enable the State to arbitrarily eliminate some of the candidates who were otherwise eligible to compete for the post for which the recruitment process is undertaken or alternatively arbitrarily enable the State to enable some of the candidates who were not otherwise eligible to compete in accordance with the law as it existed on the date when the recruitment process was initiated. It is a principle which is consistent with the general scheme of the consequences of repeal of a law as envisaged under the provisions of the
General Clauses Act discussed above. In our view in the realm of public law and more particularly in the context of employment under the State the above referred judgments only declare that notwithstanding the ability of the Legislature in general to alter the scheme of Section 6 of the General Clauses Act such an ability in the context of recruitment in public employment is liable to be restricted in view of the demands of
Articles 14 and 16 of the Constitution of India. Therefore the submission of Mr Sharma is set aside.
12. It is further submitted by Mr. Sarma, learned senior counsel that assuming that his first submission as discussed above enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly
provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the
repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force,
and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is
superseded by any appointment, notification, order, scheme, rule, form, bye-law made or issued under the
provisions so re-enacted.15 fails by virtue of a mistake committed by the officers of the Sate in not
following the appropriate procedure prescribed by law, the appellants not only lost their opportunity of employment for a considerable period of time but also exposed to heavier competition
in view of the fresh advertisement issued by the authorities of the State inviting applications for the abovementioned 254 posts. It is also submitted by Mr. Sarma, learned senior counsel that during the course of the last six years some of the petitioners were also become age barred for being considered for appointment to the abovementioned posts and as such,
it would be unjust on the part of the State to deprive them of the appointment pursuant to the communication dated 27.2.2006. The fact that the entire selection process came to be vitiated and lapses on the part of the officers of the State cannot be disputed. It is also not the case of the State that the appellants or any one of the applicants is responsible for such wrong procedure being followed by the authorities of the State pursuant to the advertisement dated 8.2.2003. In the background of the above facts, we do see force to the submission made by Mr. Sarma, learned senior counsel that the appellants are for that
matter or any one of the candidates, who applied in response to the advertisement dated 8.2.2003, should neither be debarred from the participation of the selection process for 254 posts sought to be filled up
by advertisement or be exposed to a competition higher than the one which they would have faced had the government completed the selection process pursuant to the abovementioned advertisement in accordance with law.
13. In the circumstances, we are of the opinion that though the State cannot be compelled to appoint the appellants herein pursuant to the
communication dated 27.2.2006, yet,
we direct the State to conduct the recruitment process for the above mentioned 254 posts for which the authorities of the State had issued advertisement dated 8.2.2003 by subjecting only those candidates,
who responded to the above mentioned advertisement, within the stipulated time and also who satisfied all other eligible criteria in terms of the said advertisement.
14. With the above directions, these two appeals stand disposed of.
15. Coming to the WA No.238/05, the appellants herein are the respondents in WP (C) 7933/03 & 8319/03. Mr. AS Choudhury, learned senior counsel appearing for the appellants herein submitted
that the decision in the abovementioned two appeals i.e. WA Nos.358/07 & 389/07 substantially covers the dispute in the present appeal; except one aspect of the matter i.e., the writ petition being WP(C) 7933/03 was filed by an unregistered Association and therefore, the actual membership of such Association is not verifiable w.r.t. any public record and consequently, their writ petition is not maintainable.
This submission of Mr. AS Choudhury, learned senior counsel, in our view, though technically right, is unacceptable in view of the fact that one of such teachers, who claimed to belong to the particular class,
whose cause was espoused by the abovementioned unregistered Association, was the petitioner in WP(C) No.8319/03. In the circumstances, we do not propose to interfere with the decision on
technical ground that it is not maintainable.
16. In the circumstances, we direct that apart from the applicants, who responded to the advertisement dated 8.2.2003, admittedly the cases of the 101 teachers, who arer eligible to apply in terms of the original notification but not applied within the time stipulated by the notification, were considered while preparing the list dated 27-2-2006 pursuant to the directions in WP(C) No.8139/03 and 7933/03, should also be considered while conducting the recruitment for the above mentioned 254 posts pursuant to the advertisement dated 8.2.2003.
17. All the writ appeals are disposed of. But, in the circumstances, without costs.
The entire exercise should be completed within a period of 4(four) months from today.
JUDGE CHIEF JUSTICE
Choudhury/-
Source :
http://www.ghconline.nic.in/Judgment/WA3582007.pdf
