PIL 14/2010 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. S. Shyam, learned Amicus Curiae. Also head Mr. M.R. Pa thak, learned Standing Counsel for the Education department. Submissions have al so been heard from the learned counsels representing the private respondents. 2. The petitioner a post graduate (M.Sc.) in Zoology offered her ca ndidature for the post of Subject Teacher in provincialized Higher Secondary Sch ool(s) in Assam in pursuant to the advertisement dated 22.6.1992. In the Select List dated 12.10.1995 prepared by the State Selection Board (S.S.B), the name of the petitioner was enlisted at Sl. No. 47 in order of merit whereas vacancies a dvertised in the subject of Zoology was 20 in number. 3.1 The petitioner having learnt that persons below her in merit and some whose names did not figure at all in the select list were appointed agains t the advertised vacancies, she initiated steps under the Right to Information A ct, 2005 (hereinafter referred to as the RTI Act ) to seek further informatio n on the matter. As requisite information were not supplied and concerned file w as stated to be missing, the matter was taken to the Assam State Information Com mission, which directed the officials of the Education Department to locate the missing file and to furnish the information sought by the petitioner. 3.2 Subsequently the petitioner was informed by communication dated 15.8.2007 by Shri M. Rahman, Deputy Secretary to the Government of Assam, Educat ion(S) Department that, the Government of Assam had not approved the select list submitted by the said State Selection Board for appointment of Subject Teacher of Zoology and hence nobody from the select list was given appointment by the Di rector of Secondary Education (DSE). The petitioner was further informed that as the relevant file is missing, the reason for non approval of the select list an d non-appointment therefrom could not be furnished. As the concerned file No. B( 3)S. 515/1995 was found to be missing since 15.12.1998 an F.I.R. was also lodged on the basis of which, the Dispur P.S. Case No. 1144/2007 was registered. 4. During the proceeding of the writ petition before the learned Si ngle Judge, considering the larger issues emanating from the case and the possib le consequences, on 8.9.2008 the writ proceeding was ordered to be entertained a s a Public Interest Litigation (PIL). 5. The Division Bench while proceeding with the PIL found that seve ral persons were actually appointed as Zoology Subject Teachers during the conce rned period. From the communication dated 13.3.2009 of the Director of Secondary Education, Assam addressed to the Commissioner and Secretary to the Government of Assam, Education Department it is on record that 6 persons who are placed bel ow the petitioner in the merit list and 8 persons who do not figure in the selec t list, were appointed as Subject Teacher in Zoology in different provincialized Secondary Schools. Having noticed this, the 14 appointees were ordered to be im pleaded as respondents in the proceeding and by order dated 16.3.2009 the Court directed the State to stop payments of salaries to the newly impleaded responden ts. 6. On 19.11.2009 from the materials produced by the department, the Court identified some of the officers (DSE’s) involved with the illegal appoint ment of Subject Teachers and accordingly notices were directed to be issued on t hose appointing authorities. 7. Since the relevant Government records pertaining to selection an d appointment were not being made available and it was perceived that those reco rds were being deliberately withheld from the Court, a search team was constitut ed and ordered to trace out the missing record. But this also failed to elicit t he desired results and since little progress was being made with the investigati on of the missing file case (Dispur P.S. Case No. 1144/2007), the Court ordered for constitution of a Special Investigation Team (S.I.T.) headed by Shri Shiva K umar, IPS and 2 others and directed the team by order dated 11.2.2010 to make al l efforts to trace out the missing records pertaining to the illegal appointment s of Zoology Subject Teachers besides verifying such facts pertaining to the app ointments in question as may be revealed in the course of investigation. In this regard it may be specifically noticed that on behalf of some of the Respondents impleaded subsequently (teachers who were appointed) a stand was taken that suc h appointments were not against the posts advertised but were regularisation of ad hoc / temporary appointments made earlier. 8.1 Thereafter the S.I.T. submitted its report on investigation whic h indicated that despite thorough search of the concerned office premises, the m issing files could not be recovered. However the team identified the official in the Directorate who last handled the concerned file and accordingly Shri Karuna Gogoi, now posted as Superintendent (Home-A Department) was identified as the p erson responsible for the file, which went missing since 15.12.1998 from the Gov ernment office. 8.2 The S.I.T. report significantly revealed that contrary to the in formation given to the petitioner on 14.8.2007 by the Deputy Secretary Shri M. R ahman, Government approval was in fact granted to the Select List by communicati on dated 3.1.1996 sent by Shri R. Ahmed, ACS the Deputy Secretary to the Governm ent of Assam. 8.3 It was also reported by the S.I.T. that of the 20 persons appoin ted since 1995 as Subject Teachers in Zoology, 7 persons were appointed before 1 5.12.1998 i.e. the date, when the Government record went missing. These 7 appoin tees were (i) Gitimoni Hatikakoti, (ii) Lini Baruah, (iii) Archana Sarma Sonar i, (iv) Monimala Kakoti, (v) Banti Talukdar, (vi) Subhesh Bhattacharjee and (vii ) Pradip Das. The remaining 14 Subject Teachers were appointed after the loss of the file (post 15.12.1998) and they are (i) Gitanjali Deka, (ii) Nili Kalita, (iii) Amulya Goswami, (iv) Bijuli Chakraborty, (v) Nurul Huda, (vi) Madhumita Das Bor a, (vii) Jyotimoni Hazarika, (viii) Gitanjali Talukdar, (ix) Tirangajyoti Handiq ue, (x) Madhumita Sen, (xi) Dipali Bora and (xii) Anjali Pator. The S.I.T. noted that since Dispur P.S. Case No. 1147/2007 was lodged with the information that the concerned files were missing since 15.12.1998 and if the files were actually lost since that date, how appointment to the 14 post s could be given by the department, in the absence of the files. The names of th e 20 appointees between 1995 to 2001, could be gathered by the S.I.T. on the bas is of Memo. No. GB.EST/DSE/CC/125/ 2008/153 dated 13.3.2009 issued from the offi ce of the DSE wherein it was also recorded that, the select list submitted by th e State Selection Board during 1995 was approved by the Deputy Secretary to the Government of Assam on 3.1.1996. 8.4 The S.I.T. also collected the marks scored by the candidates in the interview held by the S.S.B. which revealed that 9 persons were appointed on the basis of the interview/selection of the S.S.B. However 7 others were found to have been appointed to regular vacancies on the basis of a screening process conducted, in pursuant to a Government order No. B(3)S.21/93/PT/50 dated 16.10.1 998. That apart, the services of 3 temporary appointees were also regularized. T he details of these 3 categories of appointees are reflected under separate head s i.e in Group-A, Group-B and Group-C in the said report. 8.5 GROUP - A Name of the Teacher Name of the School Smti. Gitimoni Hatikakoti (Appeared marks - 61/ Rank - 48th ) HS School, Nazir a, Sivasagar. Smti. Lini Baruah (Appeared marks - 60/ Rank - 56th ) Margherita Public HS Sch ool, Tinsukia. Smti. Archana Sarma (Appeared marks - 60/ Rank - 64th) Dinjoy Hazarimol HS Scho ol, Chabua, Dibrugarh. Smti. Manimala Kakoti (Appeared marks - 64/ Rank - 29th ) Ulubari HS Schoo l, Barpeta. Smti. Banti Talukdar (Appeared marks - 63/ Rank - 35th ) Barpeta HS Schoo l, Barpeta. Sri Subesh Bhattacharjee (Appeared marks - 69/ Rank - 11th ) MMMC Girls HS S chool, Karimganj. Sri Pradip Das (Appeared marks - 60/ Rank - 55th ) Jalukbari HS School, Kam rup. Smti. Gitanjali Deka (Appeared marks - 62/ Rank - 41st ) Mandia HS Schoo l, Barpeta. Smti. Nili Kalita (Appeared marks - 60/ Rank - 57th ) Machkhowa HS School, Dh emaji. GROUP - B Name of the Teacher Name of the School Shri Amulya Goswami Appeared in the SSB interview 1995, but secured only 54 mark s so his name was not incorporated in the select list of SSB-95. Mondia H S School, Barpeta. Smti. Bijuli Chakraborty (Not appeared in the SSB interview 1995 ) Lakhipur HS School, Goalpara. Md. Nurul Huda (Not appeared in the SSB interview 1995 ) Joleswar HS Scho ol, Goalpara. Smti. Madhumita Das Borah (Not appeared in the SSB interview 1995 ) Arjya Bi dyapith HS School, Kamrup. Smti. Jyotimoni Hazarika (Not appeared in the SSB interview 1995 ) Nazira H S School, Savasagar. Smti. Gitanjali Talukdar (Not appeared in the SSB interview 1995 ) Kamrup A cademy HS School, Kamrup. Sri Tirangajyoti Handique (Not appeared in the SSB interview 1995 ) Rajgarh HS School, Dibrugarh. GROUP - C Name of the Teacher Name of the School Smti. Madhumita Sen (appeared in SSB-1995 marks obtained -68, Rank 13th ) RN Vidyapith MD School, Ramkrishna Nagar, Karimganj. Smti. Dipali Bora (appeared in SSB-1995 marks obtained -62, Rank 44th ) Rajdhar Bora HS School, Azara, Kamrup. Smti. Anjali Pator (not appeared in SSB-1995 Dolguma HS School, Goalpara. 8.6 The part of the report extracted above reveal that of the 7 in Group -A (appointed on the basis of selection), barring Shri Subhesh Bhattacharjee, th e appointment of others was unjustified considering their merit position. In so far as the Group-B appointees, no documents could be furnished by the department on the alleged screening test conducted in the year 1998 and the Department failed to justify as to why appointments were made through an allege d screening process instead of from the duly prepared select list. In respect of the Group-C appointees, the S.I.T. found that only Madhum ita Sen having secured 13th position in the merit list, deserves regularization of her temporary service and the other 2 persons whose services were regularized , were undeserving of such regularization. 8.7. The different Higher Secondary Schools where the vacancies were available on the date when the advertisement was issued on 22.6.1992 advertising the 20 posts of Subject Teachers were identified in the S.I.T. report. The pers ons who ought to have been appointed on the basis of their performances in the s election process were also named in the report of the S.I.T. (A) General Candidates (unserved category) Rank Name of the Candidate Rank Name of the Candidate 1 Miss Anku Ghosh 9 Miss Jeena Devi Boarah 2. Mrs. Kalpana Dhar 10 Miss Susmita Saha 3. Sufiara Begam 11 Sri Subhash Bhattacharjee 4. Sri Poritush Bhattacharjee 12 Mrs. Malabika Das Chakraborty 5. Miss Manjulata Thakuria 13 Madhumita Sen 6. Miss Manjushree Dutta 14 Miss Neeta Baishya 7 Mrs. Nanda Devi Kumar 15 Mrs. Nizara Bhuyan Baruah 8 Mrs. Nirupama Banik Saikia (B) Scheduled Caste RANK NAME OF THE CANDIDATE 1. Miss Jhumur Sutrahdar 2 Mrs. Arpana Hazarika (C) Scheduled Tribe (Plains) RANK NAME OF THE CANDIDATE 1. Miss Pritilekha Rabha 2 Miss. Rupjyoti Boro. (B) Scheduled Tribe (Hills) RANK NAME OF THE CANDIDATE 1. Will remain vacant as no suitable candidate is appeared. 9. From the report of the S.I.T., it is, therefore crystal clear th at several undeserving persons were given appointments on regular basis. The rel evant records pertaining to such appointments as well as the proceeding of the Screening Committee could not however be made available for Court’s own scrutin y. It also appears that incorrect and false information was furnished to the pet itioner, wrongly informing her that the select list, where the name of the petit ioner figures at Sl. No. 47 was not approved. In fact to the prejudice of the pe titioner, the proceeding before the State Information Commission was ordered to be closed on 7.9.2007 on the basis of the incorrect information furnished on 14. 8.2007 to the petitioner. 10. In this case it has become quite apparent that undeserving candi dates were appointed during 1995-2001 to the 20 posts of Zoology Subject Teacher s in different provincialized Higher Secondary Schools in Assam. When such illeg al appointments are found to have been made appropriate judicial order(s) for te rmination of such illegal appointment has to follow. In the present case however all such appointees are not before the Court i.e. Smti. Manimala Kakoti, Smti. Banti Talukdar, Smti. Gitanjali Deka (from Group-A); Smti. Bijuli Chakraborty (f rom Group-B) and Smti. Dipali Bora (from Group-C). All the relevant facts i.e. c ircumstances in which the 7 regularisation under Group-B and 3 regularisation un der Group-C were made are not before the Court. Whether such regularisation was against the advertised posts and if not what had happened to the advertised pos ts is also not known with certainty. In such circumstances it may not be appropr iate for the Court to pass any order for cancellation of the appointments. But c onsidering the information gathered by the S.I.T., we deem it appropriate to dir ect the State to take into account the report of the S.I.T. and thereafter take appropriate steps to discontinue the services of such appointees who got undeser ved appointments. Of course if any adverse action is to be taken against any app ointee, they ought to be given an opportunity before termination orders are issu ed. 11. Since relevant Government records pertaining to appointment in p ublic offices have gone missing and were consequently withheld from scrutiny of the Court, necessary steps be taken by the State to unearth the missing records. Departmental action be taken against the persons identified by the S.I.T. as r esponsible for the above. The State must also fix responsibility and proceed aga inst the errant officials who may be found to be responsible for the appointment s that may be eventually set aside by the State. 12. In so far as the relief claimed by the petitioner, considering t hat she is at merit position No.47 in the select list, she can claim appointment only as per her turn. If vacancies become available through termination of ille gal appointees and if appointment is refused by those who are in higher merit po sition than the petitioner, only then the petitioner can be offered appointment. Accordingly if the petitioner’s turn comes in order of merit she may then be ap pointed to the post of Subject Teacher of Zoology by virtue of her selection. H owever, considering the fact that the petitioner had largely conducted the prese nt proceeding on her own and her painstaking efforts and perseverance have had s ame impact on attempts at cleansing public life the Court directs that the petit ioner should be suitably compensated for the efforts by payment of cost of Rs.25 ,000/- (Rupees twenty five thousands) only which will be paid to her by the Stat e Government in the Education Department within 30 days from today. 13. The writ petition is disposed of with the above direction(s).