WP(C) 3740/2010 BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY Heard Mr. A.M. Mazumdar, learned senior counsel appearing for the petitioners in WP(C) No. 4228/2010 and WP(C) No. 3740/2010(hereinafter referred to as the fir st cases . The official respondents are represented by Mr. UK Goswami, learned s tanding counsel. Mr. B. Bhuyan, learned standing counsel is also heard in the ma tter. Mr. AR Bhuyan, learned counsel appears for the petitioners in WP(C) No. 96 6/2010 (hereinafter to be referred to as the 3rd case) and also the private re spondents in the first two writ petitions. 2. These cases pertain to appointment and selection to the post(s) of Superinten dent and Principal in the Senior Masdrassa/Title Madrassa/Arabic Colleges in the State. The petitioners in the 3rd case are serving in their respective Institu tions as In-charge Superintendent on the basis of their seniority. They seek pro motion as regular Superintendent in their respective Institutions. Whereas the w rit petitioners in the first cases were regularly appointed as Principal and Sup erintendent in pursuant to the advertisement dated 30.11.08 and the select list dated 30.12.08. The appointment of the selected candidates was declared to be in valid by the impugned order dated 9.6.2010 (Annexure-14) of the Chief Secretary of the State and this order is under challenge in the first cases. 3. The Government by its communication dated 19.4.08 (Annexure-6) accorded approval to the process of recruitment to, inter alia, 7 posts of Principal and 30 posts of Superintendent in Madrassas/Arabic Colleges. The said communication was issued with that approval of the Finance (SIU) Department. Thereafter an adv ertisement was issued on 30.11.08 inviting applications. The selections were hel d on 28.12.208 and 22.12.2008 and the select list was published on 30.12.2008 (A nnexure-10), notifying the names of the successful candidates. Thereafter the ap pointment to the selected candidates were given by separate appointment orders i ssued by the Director of Madrassa Education, Assam on 31.12.2001. 4. The petitioners in the 3rd case challenged the selection and the appoint ments by filing writ petitions, i.e., WP(C) No.113/09, WP(C) No.364/09 and WP(C) No.396/09 and the said cases were disposed of on 14.12.2009. In its judgment, t he Court found anomalies in the process of recruitment and recorded that no rese rvation for women, Physically handicapped, SC/ST was made. It was also found tha t the appointment could not have been made by direct recruitment and promotion i s also envisaged for appointment to the available vacancies. By referring to the challenge(s) made by the writ petitioners on the constitution of the selection board and other issues pertaining to both vertical and horizontal reservation, t he learned Judge ordered for examination of the sanctity of the recruitment in l ight of the discussion made in the Court’s judgment dated 14.12.2009. 5.1 In pursuant to the Court’s order, the Chief Secretary consulted all the stake holders and recorded the following infirmities in the selection (Annexure- 14) :- a. The Selection Board has treated the posts to be direct recruitment posts and has carried out the process accordingly. The Provincialisation Act does not spe cify that the posts are to be filled by direct recruitment. Though the Act is si lent on the issue, in the absence of Rules, there should have been clear instruc tions from the Government to this effect. The Selection Board has acted contrary to Government approval accorded for filling up the posts by promotion. The meth odology adopted by the Selection Board being without jurisdiction and without Go vernment approval makes it bad in law. b. Section 3 of the Provincialisation Act states that all employees of the Madra ssas covered by the deficit scheme of grants-in-aid shall be deemed to have beco me the employees of the Government. Section 3(a) further states that all rules i ncluding service rules and rules of conduct and discipline which are applicable to Government servants of the corresponding grade similarly placed shall be appl icable to all employees of the Madrassas. All provisions of reservations applica ble in Government are thus clearly applicable to the Madrassas unless exemption is granted under the relevant provisions of the statute governing such reservati ons. No such exemption had been granted. In view of the non-application of the r eservations to the selection process, the same is bad in law. 5.2 Accordingly the selection was declared as invalid and direction was issu ed for cancellation of the appointments. The Director of Madrassa Education (res pondent No.5) then passed orders on 29.6.2010 (Annexure-16) cancelling the appoi ntments given to the petitioners in the first cases. 6.1 It is contended on behalf of regularly recruited petitioners that the pr ocess of selection was initiated after approval was accorded for direct recruitm ent and vacancies of Principals/Superintendent need not be filled up through pro motion. 6.2 It is also contended by Mr. AM Mazumdar, learned senior counsel that the re is no tradition of reservation of posts in the State’s Madrassas/Arabic Colle ges and accordingly the Chief Secretary could not have declared the recruitment to be invalid on the ground of absence of reservation. 6.3 The learned senior counsel further contends that although the Assam Madr assa Education (Provincialisation) Act, 1995 (hereinafter referred to as the Ma drassa Act ) was enacted, no corresponding Rules have been framed so far and acc ordingly it cannot be said, in the absence of any specific Rule, that the posts of Principals/Superintendent should be filled up through promotion and cannot be filled up through direct recruitment. 6.4 He further submits that the petitioners in the 3rd case who are serving as In-charge Superintendent also participated in the process of regular selectio n and having failed to select themselves, they cannot challenge the selection an d appointment of the petitioners in the first cases. 7.1 Appearing for the Education Department it is conceded by Mr. UK Goswami that corresponding Service Rules have not been framed under the Madrassa Act bu t he submits that Service Rules under Section 8 of the Madrassa Act have been d rafted and is being currently processed. 7.2 The learned standing counsel further submits that prior approval was obt ained from the State Government on 19.4.2008 before initiating the recruitment p rocess and the selection was made through the duly constituted State Selection B oard. However, it could not be pointed out by the learned standing counsel that approval was granted by the Government to the recommendation of the Selection Bo ard. 8. The learned standing counsel for the Finance Department by referring to the Govt. communication dated 19.4.2008 submits that approval for filling up the vacancies, inter alia, of Superintendent/Principal was granted by requiring the recruiting authorities to comply with the Reservation Act for all deserving ca tegories and recruitment could not have been made by ignoring the claims of the reserved category persons to be considered for selection against their share of available vacancies. 9.1 Mr. AR Bhuyan, learned counsel appearing for the private respondents and the serving In-charge Superintendents submits that in the absence of any Rules framed under the Madrassa Act, the corresponding Rules, i.e. the Assam Secondary Education (Provincialised) Service Rules, 2003 (hereinafter referred to as the Secondary Rules ) would govern the process of recruitment. The learned counsel refers to the provisions of Rule 13 to show that the recommended select list is required to be approved under Sub-rule (iv) of Rule 13 by the Govt. and distric twise select list was to be prepared for the post of Principal. Rule 14 of the Secondary Rules is also referred to by Mr. Bhuyan to show that the post of Super intendent is to be filled up through promotion on the basis of schoolwise senior ity list and cannot be filled up through a process of direct recruitment as the serving seniormost MM Assistant Teachers/Seniormost MM Lecturers will be deprive d through a process of direct recruitment. 9.2 Mr. Bhuyan further submits that those who are serving as In-charge Super intendent in the different Madrassas should not be ousted from their respective position by persons whose selection is declared to be invalid and the In-charge functionaries should be allowed to continue in their respective Institutions. 10. I have given my anxious consideration to the submissions made by the riv al counsels. The Court by its judgment and order dated 14.12.2009 in the earlier round directed that Chief Secretary to consider the specific plea pertaining to both vertical and horizontal reservation, validity of selection board; whether the posts are to be filled up by promotion and not by direct recruitment etc. de cision was ordered to be taken by considering all these parameters, on the valid ity or otherwise of the selection. The said judgment has attained finality as it has not been challenged by any one till date. Therefore, while examining the le gality of the selection, the parameters mentioned in the judgment could not have been ignored. 11. Even though no Rules are yet to be framed under the Madrassa Act, the re cruiting authorities cannot give a go bye to the various Act(s) requiring reserv ation of vacancies to be made for women, handicapped category as well as SC/ST c ategory persons and since admittedly none of the advertised vacancies was earmar ked for reserved category persons, the impugned finding, on this aspect at least , has to be sustained by this Court. 12. Insofar as the finding on the methodology of the process of selection, t he Secondary Rules provide for appointment to the posts of Superintendents only through promotion and direct recruitment is not envisaged as a mode of appointm ent for Superintendent.. For the posts of Principals, although there is no speci fic requirement to fill up the posts through promotion, it is provided under Rul e 13 (iv) that, approval of the Govt. must be obtained for the recommended candi dates and selection is to be district wise. The Chief Secretary in his impugned order has declared that in the absence of Rules under the Madrassa Act, clear in structions should have been obtained from the Govt. to make the process of recru itment conform to the norms but it appears that soon after the recruitment go ah ead was given on 19.4.2008, the advertisement was issued on 30.11.2008 and on th e basis of selection made in December, 2008, appointments were hastily given on 31.12.2008. 13. From the above narratives it becomes clear that the recruitment was made by ignoring the reservation criteria and through a direct recruitment procedure whereas, in the absence of the Madrassa Rules the Secondary Rules provides for appointment to the posts of Superintendents on promotion basis. Additionally, th e process of recruitment to the posts of Principals under Rule 13 of the Seconda ry Rules is to be made district wise and in the present case the recruitments we re made centrally for all the vacancies located in different Arabic Colleges of the State. 14. When specific Rules have not been framed under the Madrassa Act, and if the recruiting authorities considered the Secondary Rules to be inapplicable fo r appointment of the Lecturers of Madrassas/ Arabic Colleges, appropriate norms should have been formulated before initiating the recruitment for such category of vacancies and the criteria could not have been left to the ipse dixit of the recruitment authorities. 15. For the foregoing, I am of the considered opinion that no interference i s required to be made with the impugned findings that the selection of the Princ ipals/Superintendents is vitiated in law. It is declared accordingly. 16. In consequence of the above declaration, the State is now required to ma ke recruitment to the posts of Principal/Superintendent in the Arabic Colleges a nd Madrassas by initiating a fresh recruitment process. This can be done by fram ing appropriate Service Rules under the Madrassa Act or by specifying the approp riate norms for recruitment. Necessary exercise for fresh selection be completed expeditiously and preferably in 6 months time by 12.9.2011. The persons who are functioning in the posts of Superintendent/Principal must give way for the pers ons who are selected regularly in the fresh process ordered by the Court. In the interregnum, the functioning of the incumbents in the respective positions shal l be maintained and they shall continue in service till regular appointment/supe rannuation-whichever is earlier. The respondents would ensure payment of due sal aries including arrear salaries to the serving appointees. 17. It appears from the submissions made by the rival counsels that the writ petitioners No.4 and 5 in WP(C) No.3740/2010, who were selected for the posts o f Superintendent as per the select list dated 30.12.2008 and who are posted at t he Matla-Ul-Ulum Senior Madrassa, and Simaluguri Senior Madrassa could not take over charge in their appointed posts and those posts are currently occupied by the incumbents on In-charge basis. The other selected persons, however, are func tioning in their appointed posts. It may also be recorded that the name of the p etitioner No.13 Md Shafique Ahmed has been struck off on the basis of the order passed on 23.11.2010 by this Court in MC No.3629/2010. 18. The three writ petitions stand disposed of with the above order. Consequ ently, the Misc Case Nos.2419/2010, 619/2010, 2382/2010, 2205/2010 also are disp osed of.