Research › Browse › Judgment

Gauhati High Court · body

1995 DIGILAW 205 (GAU)

Md. Abdul Quadir Khan v. State of Assam

1995-09-01

D.N.BARUAH

body1995
In this application under Article 226 of the Constitution the petitioner has challenged Annexure 3,4 and 6 orders dated 20.1.95,1.2.95 and 8.2.95 respectively issued by the 3rd respondent- Inspector of Schools, BDC, Barpeta and has prayed for issuance of writ or direction to allow the petitioner to work as Superintendent of the Khandakarpara Girls' High Madrassa. 2. The case of the petitioner, in brief, is that the petitioner passed High School Leaving Certificate Examination in the year of 1979 and thereafter in the year 1981 he passed Madrassa Final Examination from Gomaphalbari Senior Madrassa which according to the petitioner is equivalent to Degree qualification recognised by the Government of Assam. On 10.10.80 the petitioner was appointed Assistant Arabic Teacher by the Managing Committee of the Khandakarpara Girls' High Madrassa in the scale of Rs.325/- per month and in the year 1988 the said school was provincialised. The appointment of the petitioner was approved by the 3rd respondent in the scale of Rs.520/- per month by order dated 5.7.88. The 3rd respondent by yet another order (Annexure l)dated 13.1.95 asked the Superintendent of Khandrakarpara Girls' High Madrassa to realese the incumbent or hand over the charge of the school to the seniormost Assistant Teacher as per rules. The said order dated 13.1.95 contained an extract of WT message dated 31.12.94 whereby the Inspector of Schools were directed to allow the Assistant Teachers/Headmasters and Principals of provincialised High and Higher Secondary Schools in the State who had been continuing in service beyond 58 years in terms of the interim order passed by this Court to go on retirement with effect from 1.1.95. Pursuant to the aforesaid order dated 13.1.95 the then Superintendent of the aforesaid Madrassa handed over the charge of the school on 14.1.9 5 to the petitioner who was then the seniormost teacher of the said Madrassa and the petitioner took charge of the aforesaid Madrassa from the then Superintendent Mr. Abdus Rahman. After taking over charge of the Madrassa as aforesaid, the petitioner had been working as In-charge Superintendent of the said Madrassa with effect from 14.1.95. However, few days thereafter ie on 20.1.95 the 3rd respondent issued Annexure 3 order asking the petitioner to hand over charge of the school to one Mir Musharaf Hussain, seniormost Graduate Cadre Assistant Teacher of the school - 4th respondent. However, few days thereafter ie on 20.1.95 the 3rd respondent issued Annexure 3 order asking the petitioner to hand over charge of the school to one Mir Musharaf Hussain, seniormost Graduate Cadre Assistant Teacher of the school - 4th respondent. The contention of the petitioner is that the Managing Committee of the aforesaid Madrassa on 10.10.80 appointed the petitioner Assistant Teacher. On the otherhand, 4th respondent was appointed Assistant Teacher on 22.2.82 and, therefore, the 4th respondent was much junior to the petitioner. Later on 1.2.95 the 3rd respondent visited the aforesaid Madrassa and wrote a letter to the petitioner stating, inter alia, that the petitioner was found absent and he did not handover charge of the institution to the 4th respondent, seniormost graduate teacher disobeying the Annexure 3 order dated 20.1.94. The petitioner was also asked to show cause why disciplinary action would not be taken against him for violation of Government's order and for unauthorised absence from duty. The petitioner was informed that the charge of the Madrassa was handed over to the 4th respondent by the 3rd respondent on 1.2.95 and the petitioner was asked to hand over the documents of the said Madrassa. On receipt of the aforesaid order the petitioner submitted an application to the 3rd respondent on 3.2.95 stating, inter alia, that the petitioner had remained absent from his duty as he had been unwell. The petitioner also submitted Annexure 5 representation dated 6.2.95 to the 2nd respondent against the Annexure 3 order dated 20.1.95. In the said representation the petitioner stated that he was the seniormost teacher of the Madrassa and, as such, he was entitled to act the In-charge Superintendent of the said Madrassa. While the petitioner's said representation had been pending before the 2nd respondent, 3rd respondent again issued Annexure 6 order dated 8.2.95 directing the petitioner to hand over the Madrassa documents/records/ materials to the 4th repondent by 9.2.95 failing which necessary disciplinary action would be taken against him. The petitioner brought to the notice of the authorities concerned that he had passed the Madrassa Final Examination in the year 1981 which was equivalent to graduation. The petitioner brought to the notice of the authorities concerned that he had passed the Madrassa Final Examination in the year 1981 which was equivalent to graduation. The Joint Director, Secondary Examination, Government of Assam by Annexure 7 order dated23.8.90 informed the State Secretary, Assam High School Association and others about the Government's decision dated 3.8.90 regarding inclusion of classical teacher of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo, etc having degree qualification in the cadre of General Teacher for promotion to higher posts. According to the petitioner by virtue of the aforesaid order dated 3.8.90 the petitioner having degree qualification in Arabic had become the graduate cadre Assistant Teacher and he had been receiving the same graduate scale of pay of Rs.1,375/-. Petitioner's further contention is that the 3rd respondent at the behest of the 4th respondent and on extraneous consideration issued the impugned Annexure 3, 4 and 6 orders dated 20.1.95, 1.2.95 and 8.2.95 respectively most illegally directing the petitioner to hand over the charge of the said Madrassa to the 4th respondent. According to the petitioner the 4th respondent was junior to him and, therefore, directing to hand over charge of the said Madrassa to the 4th respondent ignoring his claim was illegal, without jurisdiction and arbitrary. Hence the present petition. 3. Heard Mr. AM Mazumder, learned counsel for the petitioner, Mr. KC Mahanta, learned Government Advocate, Assam and Mr. DC Mahanta, learned counsel appearing on behalf of 4th respondent. 4. The contention of Mr. Mazumder, learned counsel appearing on behalf of the petitioner was that the petitioner joined about 2 years before the date of joining ofthe4th respondent. The petitioner passed the final Madrassa Examination which according to the Government circular was equivalent to graduation. This had also been recognised by the Government. In spite of that the 3rd respondent at the instance of 4th respondent had directed the petitioner to hand over charge. According to Mr. Mazumder this was absolutely illegal, arbitrary and contrary to the provisions of rule. Mr. DC Mahanta, learned counsel appearing on behalf of the 4th respondent, on the other hand, supported the action taken by the 3rd respondent. According to him, as per the rules the 4th respondent was actually entitled to take charge in view of the fact he was a graduate teacher. Mr. Mr. DC Mahanta, learned counsel appearing on behalf of the 4th respondent, on the other hand, supported the action taken by the 3rd respondent. According to him, as per the rules the 4th respondent was actually entitled to take charge in view of the fact he was a graduate teacher. Mr. Mahanta though admired that as per the Government decision Madrassa Final Examination was equivalent to graduation and the petitioner had been drawing the graduate scale, the petitioner could not be said to be a graduate teacher and, therefore, under the provisions of rules the petitioner was not entitled to take charge of the Madrassa. Mr. KC Mahanta, learned Government Advocate also supported the action of the respondents. 5. On the contentions of the learned counsel of the parties it is to be seen whether the action of the 3rd respondent can sustain in law. 6. It is true that seniormost teacher should be allowed to take charge of Headmaster when the post of Headmaster falls vacant and a graduate teacher normally gets preference in appointment. Now the question is whether a person having a degree in Madrassa, which according to the petitioner is equivalent to graduation, can be said to be a graduate teacher of the general category. In this connection learned counsel for the petitioner has drawn my attention to Annexure 7 forwarding letter written by the Joint Director of Secondary Education, Assam to the State Secretary, Assam High School Association and others by which Government of Assam, Education (Personal) Department's Letter No.EPG.890/ 87/29 dated 3.8.90 regarding inclusion of classical teachers of Hindi, Sanskrit, Arabic, Persi, Assamese, Bodo, ets was forwarded to all the adressees for information and necessary action. In order to appreciate the meaning of “having degree qualification in the cadre of general teacher” it is necessary for this Court to look into the aforesaid letter No.EPG.890/87/29 dated 3.8.90. This letter has not been annexed to this petition. Learned counsel for the parties were requested to furnish a copy of the aforesaid letter, but they failed to furnish the same. In the absence of the aforesaid letter, it is not possible for this Court to hold that a person having degree in Madrassa Final Examination is placed at par with graduate teacher for all purposes. Annexure 7 may indicate that those teachers have been included along with graduate teachers. 7. In the absence of the aforesaid letter, it is not possible for this Court to hold that a person having degree in Madrassa Final Examination is placed at par with graduate teacher for all purposes. Annexure 7 may indicate that those teachers have been included along with graduate teachers. 7. In view of the above, it cannot be said that petitioner is the seniormost teacher having right to hold the charge of Superintendent of Khandakarpara Girls' High Madrassa. Accordingly, the petition is dismissed. However, in the facts and circumstances of the case I make no order as to costs.