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1995 DIGILAW 221 (GAU)

Kamal Chandra Bora v. State of Assam

1995-09-20

D.N.BARUAH

body1995
In this application under Article 226 of the Constitution the petitioner has challenged the Annexure K order dated 3.4.95 and also for issuance of appropriate writ or direction. 2. The facts of the case for the purpose of disposal of this Civil Rule may be stated as follows: The petitioner has passed BA Part I Examination from Ananda Ram Dhekial Phukan College, Nagaon. In the year 1974, he was appointed Assistant Teacher in Singia Potani MV School, Nagaon and he was serving in that capacity till March, 1992. On 31.3.92 the then Heaadmaster Loknath Sharma retired from the school. The petitioner being the seniormost trained qualified teacher was entrusted with the charge and responsibility of Headmaster on 3.4.92. On 28.4.92 he was further directed to be the Headmaster-in-charge of the said school and the petitioner discharged his duties in that capacity. On 17.11.92 a Gradation List (Annexure C) of teachers of MV and Senior Basic School of Nagaon Sub-Division was prepared and the petitioner's name appeared in serial No.62. However, the name of Bhola Baruah did not appear in the said list. The petitioner states that Dhaniram Saikia and Bholaram Baruah made several attempts to oust the petitioner from the post of Headmaster and in that regard applications had been filed before the various authorities including the 3rd respondent requesting him to appoint one of them Headmaster of the said school. The 3rd respondent by Annexure A submitted a report to the Director of Elementary Education - the 2nd respondent intimating inter alia that as per Annexure B Government Circular dated 20.9.90 the Assistant Teachers having minimum qualification of at least Matric/HSLC Normal or at least Inremediate or its equivalent would only be considered for promotion to the post of Headmaster. Therefore, Dhaniram Saikia as well as Bholaram Baruah could not be considered for promotion to the post of Headmaster inasmuch as both of them did not have the requisite qualification. The petitioner also states that he is the only qualified teacher among the seniormost teachers of the said school. On 2.2.93 the 3rd respondent directed all the Block Elementary Education Officers under him to prepare provisional gradation list as per the existing norms. The provisional gradation list was thereafter published on 23.5.94 in which the petitioner's name appeared in serial No.59. Dhaniram Saikia's name did not appear. On 2.2.93 the 3rd respondent directed all the Block Elementary Education Officers under him to prepare provisional gradation list as per the existing norms. The provisional gradation list was thereafter published on 23.5.94 in which the petitioner's name appeared in serial No.59. Dhaniram Saikia's name did not appear. The said Bholaram Baruah approached this Court by filing a writ application (Civil Rule No. 1908 of 1993) praying for a direction to fill up the post of Headmaster by a regularly selected candidate and to quash the temporary appointment. The said Civil Rule was disposed of. An appeal was preferred. Ultimately this Court passed order refusing to interfere with the appointment of the petitioner as Headmaster of the said school and also directed the respondents to fill up the post of Headmaster on permanent basis in accordance with the provisions of the rules. 3. The petitioner also states that the respondents did not comply with the direction given by this Court in the aforesaid Civil Rule. On the other hand, the petitioner was removed from the post of Headmaster and Dhaniram Saikia was allowed to hold charge. Being aggrieved, the petitioner filed writ application (Civil Rule No. 1135 of 1995). The petitioner prayed for stay of the order. However, this Court refused to grant interim order of stay. Being aggrieved, the petitioner preferred an appeal before the Division Bench of this Court (Writ Appeal No.82 of 1995). The Division Bench directed the respondent No.3 to be present on 7.4.95 alongwith the original record to explain as to what steps be had taken till then for filling up the post of Headmaster in question. On 28.3.95 the petitioner served certified copy before the 3rd respondent who was very much annoyed with the petitioner for approaching this Court. 4. By yet another order one Nani Keot - Headmaster of Kamar Panigaon MV School was transferred to the said school to act as Headmaster. The petitioner was also asked by respondent No.3 to show cause as to why action should not be taken against him for not handing over charge. The petitioner was taking steps to reply to the show cause. However, he was told that no, reply would be necessary as respondent No.3 had already transferred Nani Keot to hold the post of Headmaster of the petitioner's school. Thereafter the petitioner was served with an order of suspension pending drawal of disciplinary proceeding. The petitioner was taking steps to reply to the show cause. However, he was told that no, reply would be necessary as respondent No.3 had already transferred Nani Keot to hold the post of Headmaster of the petitioner's school. Thereafter the petitioner was served with an order of suspension pending drawal of disciplinary proceeding. Further by Annexure K order dated 3.4.95 the petitioner was directed to hand over charge to Dhaniram Saikia. The petitioner filed a Misc Case (Misc Case No.389 of 1995 in Writ Appeal No.82 of 1995) on the ground of malafide. On 26.4.95 the Division Bench of this Court did not interfere with the order dated 3.4.95 as the same was hot the subject matter of the writ appeal; but granted liberty to the petitioner to challenge the said order independently. Hence the present petition. 5. I heard both sides. 6. Mr. C. Baruah, learned counsel for the petitioner submitted that the Annexure K order dated 3.4.95 by which the petitioner was suspended pending drawal of the departmental proceeding was illegal and without jurisdiction. Besides the action of the respondent in suspending the petitioner was actuated by malafide intention. Learned counsel further submitted that the petitioner having allowed to show cause, action should not be taken for not handing over charge and the impugned Annexure K order ought not to have been passed. Learned counsel for the petitioner further submitted that so that Dhaniram Saikia may be allowed to continue as In-charge Headmaster. In the present petition the petitioner has prayed for quashing the order dated 3.4.95 by which he was suspended. The ground of challenge by the petitioner was the malafide action. The allegation of malafide means want of good faith, personal bias, grudge improper or ulterior motive. The determination of a plea of malafide involves two questions, namely whether there is-a personal bias or oblique motive and whether the administrative action is contrary to the objects, requirement and conditions of a valid exercise of administrative power; mere assertion or vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and the circumstances obtainable in a given case if it is established that the administrative action has been taken malafide for any such consideration or by fraud or power or colourable exercise of power it cannot be allowed to , stand. It must be demonstrated either by admitted or proved facts and the circumstances obtainable in a given case if it is established that the administrative action has been taken malafide for any such consideration or by fraud or power or colourable exercise of power it cannot be allowed to , stand. But then it has to be proved in a proper way. In the present case the allegation has been made regarding malafide action. These are all vague and not proved to enable the Court to strike down such action. Therefore, I do not find -any merit on the submission of the learned counsel for the petitioner. 7. In view of the above there is no merit in the petition. Accordingly, the petition is dismissed. 8. In the facts and circumstances of the case I make no order as to costs.