Research › Search › Judgment

Gauhati High Court · body

2001 DIGILAW 173 (GAU)

Anna Mahanta v. State of Assam and Ors.

2001-06-19

A.K.PATNAIK

body2001
These two writ petitions under Article 226 of the Constitution have been filed by the petitioner challenging the orders of the Principal-in-charge of Darrang College, Tezpur, and the resolutions of the Special Governing Body of the said college by which her date of birth has been determined as 24.5.193 8 and she has been retired from service with effect from 31.5.1998 (AN). 2. The case of the petitioner in these two writ petitions is that she was selected and appointed as Lecturer in Economics in Darrang College and she joined the said post of Lecturer in Economics on 3.9.1962. Her Service Book was opened in 1962 wherein her date of birth was recorded as 18.7.1943. On c 31.6.1986, the Principal of Darrang College issued a certificate certifying that the date of birth of the petitioner was 18.7.1943 according to her Service Book. In her pass port issued by the Regional Pass Port Office, Guwahati, issued on 13.7.1989, her date of birth was also shown as 18.7.1943. A birth certificate was also issued by the Chief Registrar on 12.12.1992 certifying her date of birth to be on 18.7.1943. The Principal of the Govt Girls HS and MP school, Tezpur, also issued a certificate certifying that her date of birth as per her birth certificate was 18.7.1943. On 24.11.1995, by an advertisement applications were invited for selection to the post of Principal in Govt Aided Colleges under deficit system of the State. In pursuance of the said advertisement, the petitioner submitted application through the Principal of Darrang College, Tezpur, on 20.12.1995 and in her said application the petitioner indicated her age as on 1.1.1995 as 51 years £ 5 months 14 days taking her date of birth as 18.7.1943 and after proper verification and scrutiny, the Principal of Darrang College forwarded her application to the State Selection Board, Assam. The petitioner was interviewed for such selection on 7.10.1996 and she was selected and her name was placed against serial No.35 of the first select list for the post of Principal in Govt Aided Colleges under deficit system in the Govt notification dated 27.2.1997. In the meantime, the petitioner was appointed as Vice Principal of Darrang College on 1.4.97 by order dated 31.3.1997 of the Principal In-charge of Darrang College, Tezpur. In the meantime, the petitioner was appointed as Vice Principal of Darrang College on 1.4.97 by order dated 31.3.1997 of the Principal In-charge of Darrang College, Tezpur. Sri Girija Sankar Singh, the then Principal In-charge was the senior most teacher of the college and the petitioner was the second senior most teacher of the college. The petitioner's allegation in the writ petitions is that the question of the date of birth of the petitioner was reopened by said Sri Girija Sankar Singh only with a view to ensure that the petitioner may not become the Principal of Darrang College. The petitioner was served with a letter dated 20.8.96 of Sri Girija Sankar Singh, Principal In-charge of Darrang College requesting her to submit to his office a certificate of her date of birth. In reply to the said letter, the petitioner submitted a copy of the age certificate dated 30.8.96 issued by the Principal, Tezpur Govt Girls HS and MP School, Tezpur to the Principal of Darrang College along with her letter dated 1.8.1996. Thereafter, some correspondence took place between the petitioner and the Principal In-charge of Darrang College relating to date of birth of the petitioner. The petitioner was served with a communication dated 21.4.1998 by the President of Special Governing Body of Darrang College, Tezpur intimating her that she had been selected for interview for the post of Principal of the college, and requesting her to present herself before the Selection Committee with all certificates and mark sheets in original on 4.5.1998, and in response to the said communication, the petitioner appeared in the said interview, Besides the petitioner, Sri Girija Sankar Singh and Sri Abani Sarma were also called in the said interview. Results of the said interview were not published. But the petitioner was informed by letter dated 27.4.1998 of Sri Girija Sankar Singh, Principal In-charge of Darrang College that on perusal of the official records he had come to know that her date of birth was 24.5.1938 and that she would retire on 31.5-. 1988 (AN). The petitioner then submitted a representation dated 4.5.1998 to the Principal-cum-Secretary, Special Governing Body of Darrang College against the said letter dated 27.4.1998 retiring her from service with effect from 24.5.1998. 1988 (AN). The petitioner then submitted a representation dated 4.5.1998 to the Principal-cum-Secretary, Special Governing Body of Darrang College against the said letter dated 27.4.1998 retiring her from service with effect from 24.5.1998. In reply to the said representation, the Principal In-charge of Darrang College, Sri Girija Sankar Singh, informed the petitioner by his letter dated 5.5.1998 that fixation of her date of birth had been referred to the Govt by the Director of Higher Education, Assam, and that the superannuation notice issued to her may be treated as pending receipt of communication from the Govt side. When no final decision was communicated to the petitioner regarding her date of birth and date of retirement, she filed Civil Rule No. 2547 of 1998 for quashing the letter dated 27.4.1998 of the Principal In-charge of Darrang College, Tezpur, and for a declaration that me petitioner was legally entitled to continue in service in Darrang College upto 18.7.2003. 3. During the pendency of the aforesaid Civil Rule No. 2547 of 1998, the Joint Secretary to the Govt of Assam, Education (Higher) Department intimated the Director of Higher Education, Assam, by his letter dated 31.10.1998 that the resolution adopted by the Governing Body of Darrang College with respect to change of date of birth of the petitioner did not appear to be in order and her date of birth may be accepted as 18.7.1943. The Director of Higher Education, Assam, by his letter dated 25.11.1998 intimated the aforesaid decision of me Govt to the Principal, Darrang College requesting him to correct the date of birth of the petitioner in accordance with the aforesaid Govt instruction. On receipt of the aforesaid communication dated 25.11.1998 from the Director of Higher Education, Assam, the Principal of Darrang College, intimated the petitioner by his letter dated 1.12.1998 that she was allowed to rejoin her duty as Vice Principal of the college with effect from 30.11.1998 (FN) subject to approval of the Governing Body. The petitioner accordingly resumed her duty with effect from 30.11.1998. But on 26.2.1999, the Special Governing Body of Darrang College, Tezpur, did not approve the action of the Principal allowing the petitioner to rejoin the college as per request of the Director of Higher Education Assam, and resolved not to approve it, and released her with immediate effect requesting her to hand over charge to Dr. Prabin Kumar Sarma on 27.2.1999. Prabin Kumar Sarma on 27.2.1999. Pursuant to the said resolution dated 26.2.1999 of the Special Governing Body of Darrang College, the Principal In-charge, by his letter dated 27.2.1999 addressed to the petitioner released her on 27.2.1999 and requested her to hand over charge of the post of Vice Principal to Dr. Prabin Kumar Sarma on 27.2.1999. Aggrieved by the said resolution dated 26.2.1999 of the Special Governing Body of Darrang College, and the said letter dated 27.2.1999 of the Principal of Darrang College, the petitioner has filed Writ Petition (Civil) No.3240 of 1999 for quashing the said resolution dated 26.2.1999 and the letter dated 27.2.1999 and for directing the respondents to allow the petitioner to continue in service in Darrang College till her due date of retirement i.e. 18.7.2003 and to grant her all consequential service benefits. 4. Affidavit-in-opposition have been filed on behalf of the Special Governing Body and the Principal In-charge of Darrang College in both the writ petitions and the case of the Special Governing Body and the Principal In-charge of Darrang College in para 5 of the affidavit-in-opposition filed in Writ Petition (Civil) No.3240 of 1999 briefly is that in the application for appointment of Lecturer in Darrang College submitted on 18.8.1962, the petitioner did not mention her date of birth, but in the Service Book she wrote her date of birth as 18.7.1943. But this fact was never verified by the then Principal of the college. In 1992, the then Principal of the college, Sri SN Sarma asked the petitioner to submit her birth certificate and thereafter the successor of Sri SN Sarma also issued notice to the petitioner for furnishing her birth certificate but she failed to submit the j same till 1996. the Governing Body of the college in its meeting held on 8.8.1996 resolved to enquire about the date of birth of the petitioner from the Principal of the Govt Girls' HS and MP School. Tezpur, from where the petitioner had passed her matriculation examination in 1955. The principal of the Govt Girls' HS and MP School, Tezpur, issued a certificate stating the date of birth of the petitioner -as 24.5.1938 and sent the same to the Principal of Darrang College. Tezpur, from where the petitioner had passed her matriculation examination in 1955. The principal of the Govt Girls' HS and MP School, Tezpur, issued a certificate stating the date of birth of the petitioner -as 24.5.1938 and sent the same to the Principal of Darrang College. In the said e ^certificate it was stated that the certificate had been issued on the basis of the admission register which indicated the date of birth of the petitioner as 24.5.193 8. On receipt of the said information, the Governing Body of the Darrang College in its meeting held on 20.9.1996 decided to request the Inspector of Schools, Sonitpur, Tezpur, to inspect the records in Tezpur Govt Girls' HS and MP School as earlier the Principal of the said school had issued a certificate in 1992 certifying the date of birth of the petitioner as 18.7.1943. The Inspector of Schools, Sonitpur, Tezpur, then inspected the school records and reported that the Principal of the said school had altered the date of birth of the petitioner on the basis of birth certificate issued to her by the Tezpur Municipal Board in 1992. The Governing Body of Darrang College then resolved in its meeting held on 11.12.1996 to accept the date of birth of the petitioner as 24.5.193 8 after having found that the later certificate issued by the Principal of the Govt Girls' HS and MP School, Tezpur was based on admission register. True copies of the extracts of the proceedings of the Governing Body of Darrang College held on 8.8.1996,20.9. 1996,11.12.1996, etc have been annexed to the additional affidavit-in-opposition filed by the respondents 3,4 and 5 in the aforesaid writ petition on 26.7.2000. 5. At the hearing, Mr. U. Bhuyan, learned counsel for the petitioner, submitted that the date of birth of the petitioner as recorded in the Service Book cannot be altered by the college authorities without giving due opportunity to the petitioner to state her case against the proposed alteration. 5. At the hearing, Mr. U. Bhuyan, learned counsel for the petitioner, submitted that the date of birth of the petitioner as recorded in the Service Book cannot be altered by the college authorities without giving due opportunity to the petitioner to state her case against the proposed alteration. He cited the decision of the Supreme Court in State of Orissa vs. Binapani Dei, AIR 1967 SC 1269 , in which it was held that even an administrative order which involved civil consequences must be made consistently with the rules of natural justice after informing the party who was likely to be affected by the administrative order the case of the State, the evidence in support thereof and after giving an opportunity to the party of being heard and meeting or explaining the evidence. Mr. Bhuyan submitted that in that case, the Supreme Court upheld the order of the High Court setting aside the order of the State Govt superannuating Dr. Binapani Dei on the basis of the date of birth determined by the Govt on some materials earlier than she was to superannuate on the basis of the date of birth as recorded in the Service Book. Mr. Bhuyan also argued that under Rule 18 of the Assam Aided College Management Rules, 1976, no final decision regarding termination/removal/dismissal of a teaching staff of an Aided College under deficit system of grant-in-aid can be taken without prior approval of the Director of Higher Education, but no such prior approval of the Director of Higher Education has been taken before terminating the services of the petitioner. On the other hand, he pointed out that both the Director of Higher Education, Assam, and the Govt have conveyed their decisions to the college authorities that the date of birth of the petitioner may be accepted as 18.7.1943 and she be allowed to continue till the date of her superannuation on the basis of the said date of birth. According to Mr. Bhuyan, this is therefore a fit case in which this Court should quash the impugned resolutions of the Governing Body of Darrang College and the impugned letters of the Principal In-charge of the said college, and direct the respondents to allow the petitioner to continue in service in Darrang College till her date of retirement on 18.7.2003 and grant her all consequential service benefits. 6. Mr. 6. Mr. AR Banerjee, learned counsel appearing for the Principal and the Special Governing Body of Darrang College, on the other hand, submitted that the facts of the present case are such that the High Court should not interfere with the impugned resolutions of the Governing Body of Darrang College and the impugned letters of the Principal In-charge of Darrang College. He submitted that Rule 18 of the Assam Aided College Management Rules, 1976, does not apply to a case of superannuation of a teaching or non-teaching staff of an Aided College under deficit system of grant-in-aid. He submitted that Rule 11 of the Assam Aided College Employees Rules, 1960, provides that an employee of an Aided College shall retire on attaining the age of 60 years. According to Mr. Banerjee, the Governing Body of an Aided College has the power to determine the date of birth of an employee of the Aided College and on the basis of such determination, superannuate the service of the said employee at the age of 60 years. Mr. Banerjee submitted that if any employee is aggrieved by any resolution of the Governing Body determining his/her date of birth and the date of his/her superannuation, he/she can prefer an appeal to the Director of Higher Education under sub-rule (2) of Rule 12 of the Assam Aided College Employees Rules, 1960. But the petitioner has not preferred any such appeal against the resolutions of the Governing Body determining her date of birth as 24.5.1938 and superannuating her from service with effect from 31.5.1998 (AN). It was next submitted by Mr. Banerjee that the petitioners date of birth as recorded in the a school admission register of Tezpur Govt Girls' HS and MP School was 24.5.1938 as certified by the Principal of the said school in her letter dated 20.8.1996 to the Principal of Darrang College, copy of which has been annexed as Annexure 9 to the additional affidavit filed on 26.7.2000. This date of birth was sought to be altered by the petitioner to 18.7.1943 on the basis of a birth certificate issued by the Chief Registrar on 12.12.1992 under the Registration of Births and Deaths Act, 1969. Mr. This date of birth was sought to be altered by the petitioner to 18.7.1943 on the basis of a birth certificate issued by the Chief Registrar on 12.12.1992 under the Registration of Births and Deaths Act, 1969. Mr. Banerjee vehemently argued that sub-section (3) of section 13 of the Registration of Births and Deaths Act, 1969, provides that any birth or death which has not been registered within one year of its concurrence, shall be registered only on an order made by a Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. But in the instant case, it appears that no such orders have been passed by the Magistrate of the First Class or a Presidency Magistrate and instead a birth certificate dated 12.12.1992 has been issued only on the basis of information collected from the register of Registration Section of Tezpur Municipality under Mahabhairab Mouza of Tezpur in the district of Sonitpur, Assam. Finally Mr. Banerjee submitted that the date of birth of the petitioner , was determined by the Governing Body of Darrang College as 24.5.1938 on the basis of the admission register of Govt Girls' HS and MP School, Tezpur after giving due notice to the petitioner. He referred to Annexure 13 annexed to the affidavit filed on behalf of respondents 3,4 and 5 on 7.2.2001 which shows that a notice dated 29.8.1996 was issued by the Principal In-charge of Darrang College to the petitioner informing her that her date of birth was 24.5.1938 as per the school admission register of the Govt Girls' HS and MP School, Tezpur, and requesting her to inform the college whether she had anything to say about it. 7. On 16.3.2001 when die arguments were closed, the Court gave an opportunity to the petitioner to controvert the averments made in the said affidavit filed on behalf of respondents 3,4 and 5 on 7.2.2001, and the petitioner filed an additional affidavit on 2.4.2001 stating in para 7 thereof that the said letter dated 29.8.1996 was never served on the petitioner and she did not receive the same and that the said letter was not produced earlier in Court and the genuineness of the said letter was doubtful. She has further stated in para 8 of the said additional affidavit filed on 2.4.2001 mat the said letter dated 29.8.96 should not be taken into consideration. 8. The first question that needs to be decided in these writ petitions is that whether prior approval of the Director of Higher Education, Assam was required before releasing the petitioner on superannuation. Rule 18 of the Assam Aided College Management Rules, 1976, (herein after referred to as the Rules, 1976) on which great reliance was placed by Mr. Bhuyan, learned counsel for the petitioner, and Rule 11 of the Assam Aided College Employees Rules, 1960, (herein after called the Rules, 1960) on which reliance was placed by Mr. AR Banerjee, learned counsel appearing for the Governing Body and the Principal of Darrang College, are quoted herein below: "18. The proceedings of the Governing Body's meeting of Aided Colleges under deficit system of grant-in-aid shall be sent to the Director of Public Instruction and to the Gauhati University or Dibrugarh University and no final decision regarding appointment, promotions, suspension, termination, removal or dismissal of teaching or non-teaching staff including the Principal, for construction involved Rs. 5,000.00 or more shall be taken without prior approval of the Director of Public Instruction. The proceeding books shall be kept open for inspection by an officer of the Education Department and the Gauhati University/Dibrugarh University. So far as other Aided Colleges are concerned, the Governing Bodies are not required to send the proceedings of the meeting to the Director of Public Instruction but it will be open for the Director of Public Instruction to call for the proceedings of the meeting if any complaint is received against the Governing Body arising in any , of the matters referred to in para above and any direction given thereon by the Director of Public Instruction shall be final and binding on the Governing Body. 11. Superannuation. 11. Superannuation. An employee of an aided college shall retire on attaining the age of 60 years : Provided that the Governing Body may, for any special reasons, recommend to the Director of Public Instruction for extension of service to an employee beyond 60 years and the Director of Public Instruction may, on the merits of the case and subject to the employee being certified by a Medical Officer duly authorised for the purpose as physically and mentally fit, grant extension for a period not exceeding one year at a time. No member shall, however, be retained in service beyond the age of 63 years." The aforesaid two Rules 18 of the Rules, 1976 and 11 of the Rules, 1960, have to be construed harmoniously. Whereas Rule 18 of the Rules, 1976, requires prior approval of the Director of Higher Education before a final decision is taken regarding termination/removal/dismissal of a teaching staff of an Aided College under deficit system of grant-in-aid, Rule 11 of the Rules, 1960, does not require any such prior approval before an employee of an Aided College is retired from service on his/her attaining the age of 60 years. The proviso to Rule 11 of the Rules, 1960, on the other hand, indicated that only where the Governing Body of an Aided College proposes to extend the service of an employee beyond 60 years an order is required to be passed by the Director granting such extension for a period not exceeding one year at a time. Construing the aforesaid two Rules together, retirement of a teaching staff on the ground that he/she has attained the age of 60 years will not come within the purview of termination/removal dismissal of such teaching staff under Rule 18 of the Rules, 1976, so as to require prior approval of the Director under Rule 18 of the Rules, 1976. In the present case, the Governing Body of Darrang College had taken a view that the petitioner had attained the age of superannuation i.e. 60 years and was liable to be retired from service with effect from 31.5.1998. In the present case, the Governing Body of Darrang College had taken a view that the petitioner had attained the age of superannuation i.e. 60 years and was liable to be retired from service with effect from 31.5.1998. This is therefore not a case of termination of service of the petitioner within the purview of Rule 18 of the Rules, 1976 so as to require prior approval of the Director, but is a case of superannuation within the meaning of Rule 11 of the Rules, 1960, which does not require prior approval of the Director. The first contention of Mr. Bhuyan, learned counsel for the petitioner, that the impugned resolutions of the Governing Body and the impugned letters of the Principal in-charge of Darrang College are hit by Rule 18 of the Rules, 1976, has no merit. 9. The next question which arises in these writ petitions is whether the impugned resolutions could have been adopted by the Governing Body and the impugned letters could have been issued by the Principal In-charge of Darrang College when the State Govt and the Director of Higher Education had in their communications dated 31.10.1998 and 25.11.1998 in Annexures G and H to the writ petition, Writ Petition (Civil) No.3240 of 1999 had ordered that the date of birth of the petitioner may be accepted as 18.7.1943 and had ordered to correct the date of birth in respect of the petitioner accordingly. No rule whatsoever has been referred to by Mr. Bhuyan, learned counsel for the petitioner, to show that the Govt or the Director of Higher Education had the power to decide the date of birth or the age of superannuation of an employee of an Aided College in Assam except by way of appeal. Rule 11 of the Rules, 1960, which provides for superannuation of an employee of an aided college only states that he/she shall retire on attaining the age of 60 years, and does not provide for reference of a dispute between the Governing Body of an Aided College and an employee to the Govt or the Director relating to the date of birth or date of retirement before retirement of the employee on his/her attaining the age of 60 years. Sub-rule (2) of Rule 12 of the Rules, 1960, however, provides that an employee aggrieved by any order of the Governing Body concerned may, within 15 days of receipt of such order, prefer an appeal to the Director and to the Govt against the order of the Director within 30 days of the receipt of the Director's order through proper channel. Thus, when an employee of an Aided College is retired on attaining the age of 60 years, but is aggrieved by the order or resolution passed by the Governing Body of an aided college retiring him/her from service, he/she can challenge such resolution or order of the Governing Body first before the Director of Higher Education and if he/she is still aggrieved by the order passed by the Director before the State Govt. Obviously, in such an appeal filed by an employee, the Governing Body of the college will have to be impleaded as respondent and the said Governing Body of the college will have to be given an opportunity of being heard before orders are passed by the appellate authority. In the instant case, no/such appeal has been filed by the petitioner before the Director of Higher Education against the orders/resolutions of the Governing Body of Darrang College retiring her from service with effect from 31.5.1998, and the communications dated 31.10.1998 of the Govt to the Director of Higher Education, and 25.11.1998 of the Director of Higher Education to the Principal of Darrang College have not been made pursuant to any appeal filed by the petitioner. The ° said communications, therefore, are without any authority of law and cannot bind the Governing Body or the Principal of Darrang College. The second contention of Mr. Bhuyan, learned counsel for the petitioner, also has not merit. 10. The next question which arises for decision in these writ petitions is whether the impugned resolutions and the impugned letters are liable to be quashed on the ground of violation of the principles of natural justice. Mr. Bhuyan, learned counsel for the petitioner, has contended that the date of birth of the petitioner as recorded in her Service Book was 18.7.1943 and this date of birth was altered to 24.5.1938 without giving any show cause notice to the petitioner. Mr. Bhuyan, learned counsel for the petitioner, has contended that the date of birth of the petitioner as recorded in her Service Book was 18.7.1943 and this date of birth was altered to 24.5.1938 without giving any show cause notice to the petitioner. But it appears from Annexure 13 filed along with the affidavit on behalf of respondent Nos 3,4 and 5 dated 7.2.2001 that the Principal In-charge of Darrang College by letter No. 1231 dated 29.8.1996 to the petitioner informed her that her date of birth was 24.5.1938 as per the school admission register of the Govt Girls' HS and MP School, Tezpur, and requested her to inform the college whether she had to say anything about it. In the said letter dated 29.8.96. the Principal In-charge of Darrang College also informed the petitioner that her reply should reach the office within 7 days from the date of receipt of that letter. But in her additional affidavit-in-reply filed on 2.4.2001, the petitioner has stated that the said letter dated 29.8.1996 in Annexure 13 was never served on her and she did not receive the same. There is therefore a factual dispute between the petitioner and the college authorities as to whether or not the notice dated 29.8.1996 (Annexure 13) was served on the petitioner. It is difficult for this Court in the present writ petitions under Article 226 of the Constitution to decide this factual dispute, and it will be more appropriate if this factual dispute is decided in an appeal filed by the petitioner before the Director of Higher Education, Assam, under sub-rule (2) of Rule 12 of the Rules, 1960. In such an appeal, the appellate authority will also be in a position to go into the main dispute as to whether the date of birth of the petitioner is 24.5.193 8 as claimed by the Governing Body of Darrang College or 18.7.1943 as claimed by the petitioner and decide the said dispute on the basis of the materials produced both by the petitioner and the Governing Body of Darrang College. The High Court while exercising jurisdiction under Article 226 of the Constitution cannot go into this dispute between the petitioner and the Governing Body of Darrang College regarding the date of birth of the petitioner particularly when the petitioner has relied on one set of documents while the Governing Body of Darrang College has relied on the school admission register of the school from where the petitioner passed her matriculation examination. Such a dispute can only be appropriately decided by the appellate authority under sub-rule (2) of Rule 12 of the Rules, 1960. Under the said sub-rule (2) of Rule 12 of the Rules, 1960, appeal was to be filed within 30 days from the date of receipt of the order of the Governing Body retiring the petitioner from service. But in this case, the petitioner instead of filing an appeal has filed the present two writ petitions and the said two writ petitions have been pending before this Court till today. On these facts, I am of the considered opinion that if the petitioners files an appeal within 30 days from today before the Director of Higher Education, Assam, under sub-rule (2) of Rule 12 of the Rules, 1960, the same shall not be dismissed by the Director of Higher Education on the ground of limitation, but will be considered on merit after giving due opportunity of hearing to both the petitioner and the Governing Body of Darrang College and disposed of within three months from the date of receipt of the appeal from the petitioner. 11. With the aforesaid observations and direction, these two writ petitions stand disposed of. Considering however the entire facts and circumstances of the case, the parties shall bear their respective costs.