Puspendra Nath Bora v. State of Assam — 1995 DIGILAW 177 (GAU)

In this application under Article 226 of the Constitution the petitioner has prayed for issuance of appropriate writ or direction. 2. The facts of the case as stated by the petitioner may be narrated as follows: The petitioner was appointed Assistant Teacher on 13.11.88 when the school was only a venture school. The petitioner continued to serve as such till the school was provincialised by Annexure C order dated 27.1.92 with effect from 19.11.91. At the time of provincialisation the petitioner and other teachers had been serving. At that time the school had 5 sections in 3 classes. As per Rule 4 of the Assam Secondary (Middle English Schools and High Schools) Provincialisation Rules, 1979 (for short, the Rules) the Government ought to have provincialised 5 teachers including the Headmaster and excluding the Hindi teacher. However, by Annexure Corder the services of the following teachers had been provincialised: Sri Upendra Nath Saikia, Head Master. Sri Nila Kanta Borah, Assistant Teacher. Smti Rina Devi, Assistant Teacher. Sri Ratneswar Borah, Hindi Teacher. Sri Kusal Chandra Kalita, Chowkidar. 3. In total 5 posts were provincialised. Though the petitioner had been working at the time of provincialisation his service had not been provincialised. In spite of representations and reminders the authorities have not considered the case of the petitioner. On the other hand, the authority, namely, the District Elementary Education Officer, Nagaon respondent No.3 by Annexure E order dated 11.3.94 appointed Smti Gita Borah respondent No.4 on ad hoc basis and her period of appointment expired in the month of June, 1994 i.e. after filing of the Civil Rule. Hence the present petition. 4. I have heard Mr.C. Baruah, learned counsel for the petitioner, Mr.B.Choudhury, learned Government Advocate, Assam and Mr.KK Mahanta, learned counsel appearing on behalf of respondent No.4. 5. Mr.'C.Baruah, learned counsel for the petitioner submits that though the petitioner had been working to the satisfaction of the authorities concerned, his case has not been considered for provincialisation. On the other hand, 4th respondent who was a stranger to Town Panigaon ME School was inducted in the said school. Mr.Baruah draws my attention to Rule 4 of the Rules and submits that services of minimum 5 teachers excluding the Hindi teacher ought to have been provincialised. But in the present case the services of 3 teachers were provincialised leaving 2. Mr.Baruah draws my attention to Rule 4 of the Rules and submits that services of minimum 5 teachers excluding the Hindi teacher ought to have been provincialised. But in the present case the services of 3 teachers were provincialised leaving 2. The petitioner had a legitimate expectation that his service would be provincialised in one of the remaining posts. But this was not done. On the other hand, without any reason 4th respondent was appointed. 6. Mr.B.Choudhury, learned Government Advocate, Assam, on the other hand, attempts to justify the action of the respondents. Mr.Choudhury submits that pursuant to the order of this Court respondent No.4's service has not been extended and now she is out of employment. 7. On hearing the counsel for parties it is to be seen whether the petitioner has a claim to provincialisation of his service. Rule 4 (iii) of the Rules reads thus : “ (iii) Every such school must have- (a) a Headmaster who is a Graduate relaxable up to Intermediate, PU (two years) by the Government in exceptional cases; (b) Assistant teachers who are either Normal Matric or Intermediate passed; (c) Minimum one teacher (including Headmaster) for each section; (d) One Hindi teacher having qualification in Hindi equivalent to Intermediate Examination. Provided that the Government may relax any of the minimum requirements in the public interest in the areas prescribed in the Sixth Schedule of the Constitution.” 8. As per the said Rule service of at least 5 teachers ought to have been provincialised. But this was not done. The petitioner having served the said school since 1988 definitely he has a legitimate expectation that his case would be considered. In the present case nothing has been shown that the petitioner was disqualified. From Annexure B Inspection Report submitted by the Additional Deputy Inspector, Nagaon, there were 5 sections as on 22.9.90. The sections by now might have increased. Under the provisions of Rule 4 at least one teacher for each section ought to have been provincialised. But in the instant case services of three teachers were provincialised excluding the Hind i teacher. Later one more post was provincialised in which petitioner was not taken in. On the other hand one Smti Gita Borah was appointed on ad hoc basis. However, after filing of the Civil Rule her services were not extended. Mr. But in the instant case services of three teachers were provincialised excluding the Hind i teacher. Later one more post was provincialised in which petitioner was not taken in. On the other hand one Smti Gita Borah was appointed on ad hoc basis. However, after filing of the Civil Rule her services were not extended. Mr. Baruah submits that later services of Nripen Chandra Kalita were also provincialised. The petitioner having served for such a long time definitely he had legitimate expectation that his services would be provincialised in accordance with the provisions of law if there was nothing against the petitioner. 9. The concept of legitimate expectation operates and provides locus standi for judicial review. Its denial is a ground for challenging the action. But denial can be justified by showing some overriding public interest. It is also true a mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render a decision arbitrary and this is how the requirement of due consideration of a legitimate expectation form s part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. It appears from the record that there were 5 sections in 3 classes and on the date of provincialisation i.e. on 27.1.92 6 teachers had been serving. Petitioner's position was fifth and Nripen Chandra Kalita whose date of appointment was 10.4.87 was in the fourth position. Admittedly Nripen Chandra Kalita is senior to the petitioner. He is also better qualified. Therefore, before provincialisation of the services of the petitioner, the services of Nripen Chandra Kalita should be provincialised. Mr.Baruah submits that services of Nripen Chandra Kalita have already been provincialised. If that be so, the case of the petitioner definitely requires consideration. 10. In view of the above, I dispose of this petition with a direction to the 3rd respondent i.e. District Elementary Education Officer, Nagaon to examine the entire matter keeping in mind the provisions of Rule and if on enquiry it is found that Shri Nripen Chandra Kalita's service has already been provincialised, services of petitioner shall be provincialised within a period of 2 (two) months from the date of receipt of this order. If it is found that service of Nripen Chandra Kalita is yet to be provincialised, he shall make arrangement to provincialise the services of Nripen Chandra Kalita if Nripen Kalita so desieres, Thereafter, provincialisation of the services of the petitioner may also be considered within the period mentioned above. The case of respondent No.4 may be considered after consideration of the case of the petitioner. 1995 (2) Gauhati Law Journal 100 (Before Smtim. Sharma, J) Smtinurumahal Nessa Appellant, Versus Abdul Hakim Dr. Respondent. Second Appeal No.96 of 1985 decided on 16-6-95. Mahomedan Law-Gift-To be a valid gift, three essential requirements to be existed are - (a) declaration of the gift by the donor; (b) acceptance of the gift, express or emplied, by or on behalf of the donee; and (c) delivery of possession of the subject of the gift-Writing is not essential to the validity of a gift either of movable or immovable property. Para 7 The donor of the appellant had given the house standing on 7/8 lechas of land for her maintenance. PW 1, the husband of the appellant, admitted that the rent has been collected from the said house by the appellant. It is also the evidence of the PW 1, as already stated, that there was vacant land adj acent to the said house. From the nature of the collection of the rent, apparently it was absolute as the rent realised was meant for maintenance of the wife with their children. It was an oral transfer in the nature of gift with an intention, i.e., to maintain his family from his third wife and possession was given by allowing'exclusively to realise the profit from that property. There is no evidence on record that the rent was allowed to collect for the life time of the wife only. All the three essential ingredients are present in the transfer and therefore it is a gift under section 150 of the Mahomedan Law. Para 8 Advocates appeared in the case-Mr. D.C.Mahanta, Mr. A.Mannan for the appellant; Mr. A.B.Choudhury, Mr. K.Basar, Mr. M.H.R.Barbhuiya for the respondent. JUDGMENT This second appeal has been arisen against the judgment and decree dated 7.1.85 passed by the Assistant District Judge, Dhubri in Title Appeal No.68 of 1984 reversing the judgment and decree passed on 24.2.84 and 8.3.84 respectively by Munsiff No.2, Dhubri dismissing the Title SuitNo.282 of 1981. 2. A.B.Choudhury, Mr. K.Basar, Mr. M.H.R.Barbhuiya for the respondent. JUDGMENT This second appeal has been arisen against the judgment and decree dated 7.1.85 passed by the Assistant District Judge, Dhubri in Title Appeal No.68 of 1984 reversing the judgment and decree passed on 24.2.84 and 8.3.84 respectively by Munsiff No.2, Dhubri dismissing the Title SuitNo.282 of 1981. 2. The respondent as plaintiff filed the above mentioned suit for declaration that the plaintiff has right, title and interest over the suit land specifically described in Schedule A and also for declaration decree of permanent injuction on the defendants restraining them from interfering with the plaintiff s possession and construction of building on the said land and from realising rents from two tenants with costs. The claim of plaintiff said to be on the basis of two deeds of gifts executed by his father Bazlur Rahman who had been in exclusive possession of the said land and who became the absolute owner of the property, gifted in the year 1977. That plaintiffs father gifted to him the suit land by registered deed dated 30.1.81 and 12.3.81 and delivered vacant possession to the plaintiff and having accepted the gift took possession of the same and started earth filling and constructed structure of an Assam Type house to which defendants created obstruction. Hence the suit. 3. The defence stand in the written statement was that the suit property was gifted to her, she being the second wife of the farther of the plaintiff in the year 1971 without execution of any written instrument but made verbally. 4. The issue for consideration posed before this Court is whether the gift in question created in 1981 in favour of the plaintiff was valid within the meaning of section 123 of Transfer of Property Act and under the Mahomedan Law as the parties in the suit is governed by their personal law. 5. The creation of the gift in favour of the plaintiff was not disputed, only objection of the defendant was that the gift was not effective as it has not accompanied by delivery of possession as provided under the provisions of Mahomedan Law. 6. The creation of the gift in favour of the plaintiff is an admitted fact. Defence claim is that the said gifted land has already been verbally gifted away to the appellant No. 1 by her husband for the maintenance of her children. 6. The creation of the gift in favour of the plaintiff is an admitted fact. Defence claim is that the said gifted land has already been verbally gifted away to the appellant No. 1 by her husband for the maintenance of her children. Apparently there was no written gift deed in favour of the appellant No. 1. The oral gift made in favour of the appellant No. 1 caused as the third wife Nurmahal Nessa filed a maintenance suit against her husband. The maintenance was awarded and appeal was preferred by the husband, but in a village 'challsa', her husband agreed to give the suit property to maintain her children. At the time of taking evidence, as it is seen in record, the youngest son of the appellant was minor of 17/18 years, while the other sons were major. Further evidence on record is that the appellant No. 1 was a school teacher; that initially one of her sons occupied the house (shed) as their tea stall and afterwards rented out to one Nripen Mahanta and rent was collected by the appellant through her sons. The fact emerges from the stand of the appellant that rent of the said house was given to her as maintenance allowance in 1971. In absence of any written document it cannot be ascertained whether the house with the land, as claimed by the appellant No. l, was given to her. PW 1 the husband of the appellant denied any transfer of land by way of gift to his third wife. His further evidence on record is that the suit land on which temporary 'Chalis' (sheds) were standing comprises only 7/8 lechas and this was in his possession; that the remaining land was vacant and this, he gifted to the plaintiff by registered deed. Taking the entire evidence on record, it emerges that the plaintiff did allow his third wife appellant to get the rent amount received from the house as her maintenance. It is his evidence the rent has been collected by his third wife till then (time of giving evidence). Taking the entire evidence on record, it emerges that the plaintiff did allow his third wife appellant to get the rent amount received from the house as her maintenance. It is his evidence the rent has been collected by his third wife till then (time of giving evidence). His categorical stand was that there was no oral gift to his third wife and whatever was given to her was her maintenance allowance, collected from the house which was situated on the land measuring 7/8 lechas; that there was vacant land adjacent to it and the said vacant land was gifted away to his son plaintiff by registered deed. 7. Under Mahomedan Law, to be a valid gift, three essentials required to be existed are - (a) declaration of gift by the donor; (b) an acceptance of the gift, express or implied, by or on behalf of the donee; and (c) delivery of possession of the subject of gift. Another characteristic of Mahomedan Law is that writing is not essential to the validity of a gift either of movable or immovable property. 8. In this case, the donor of the appellant had given the house standing on 7/8 lechas of land for her maintenance. PW 1, the husband of the appellant, admitted that the rent was been collected from the said house by the appellant. It is also the evidence of the PW 1, as already stated, that there was vacant land adjacent to the said house. From the nature of the collection of the rent, apparently it was absolute as the rent realised was meant for maintenance of the wife with their children. It was an oral transfer in the nature of gift with an intention, i.e., to maintain his family from his third wife and possession was given by allowing exclusively to realise the profit from that property. There is no evidence on record that the rent was allowed to collect for the life time of the wife only. All the three essential ingredients are present in the transfer and therefore it is a gift under section 150 of the Mahomedan Law. The gift created to the plaintiff respondent by the donor, as evident on record, cannot include the land measuring 8 lechas whereon the house gifted to the appellant stands. All the three essential ingredients are present in the transfer and therefore it is a gift under section 150 of the Mahomedan Law. The gift created to the plaintiff respondent by the donor, as evident on record, cannot include the land measuring 8 lechas whereon the house gifted to the appellant stands. That portion of the land has not been delivered as that portion with the house was under the exclusive possession of the appellants. 9. In view of my above discussion I hold that the land measuring 8 lechas with the house thereon has been gifted out to the appellant No. 1 by the donor, her husband, which was under exclusive possession of the appellants at the time of creation of the subsequent deed of gift in favour of the plaintiff respondent and the portion under the possession of the appellants was not delivered by the said second gift. 10. In the result the appeal is allowed in part. Respondent is directed to pay cost of Rs.1,000/- to the appellants.