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2005 DIGILAW 57 (GAU)

Bhupendra Nath Deka v. State of Assam

2005-01-25

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. Heard Mr. R.P. Sarma, learned senior counsel assisted by Mr. A. Nath, learned counsel for the petitioner and Mr. V.M. Thomas, learned Standing counsel. Education Department. 2. The grievance raised in this writ petition is in respect of the order dated 12.8.1999 by which the order appointing the petitioner as Assistant Teacher in Gopalthan Polytechnical Institution 23.10.1998 was cancelled. Such cancellation of the order of appointment of the petitioner was stated to be in reference to the earlier communication dated 5.5.1999. 3. As per the averments made in the writ petition, the petitioner in response to an advertisement for appointment of Assistant Teacher in the provincialised High/High Madrassa/Higher Secondary Schools in Assam offered his candidature for one such posts. It is the further case of the petitioner that in acceptance of the offer so made, he was invited for selection conducted by the District Level Selection Board, which was constituted for conducting the selection of the candidates in the District of Nalbari. After such selection of the petitioner, he was appointed as Assistant Teacher of Gopalthan Polytechnical Institution. In the order issued on 23.10.1998, such appointment of the petitioner was stated to be against resultant vacancy of one Shri Karuna Deka, Assistant Teacher. According to the petitioner he joined his service and to that effect he has annexed a certificate dated 24.4.1999 issued by the Headmaster of the school. By a representation dated 24.4.1999 the petitioner requested the Inspector of Schools, NDC, Nalbari to adjust his service against the resultant vacancy of said Shri Karuna Deka, Assistant Teacher. It is not understood as to why such a request had to be made in view of the fact that the petitioner was appointed against the resultant vacancy of said Shri Karuna Deka. However, Mr. R. P. Sarma, learned Sr. counsel for the petitioner submits that the vacancy had arisen only on expiry of said Shri Karuna Deka. Prior to that he was in long leave due to illness against which the petitioner was appointed. 4. After the aforesaid developments and when the petitioner was continuing in his service, the impugned order dated 12.8.1999 was issued canceling the order of appointment made in favour of the petitioner. Assailing the legality and validity of the said order dated 12.8.1999, the petitioner approached this Court by filing the instant writ petition. 5. 4. After the aforesaid developments and when the petitioner was continuing in his service, the impugned order dated 12.8.1999 was issued canceling the order of appointment made in favour of the petitioner. Assailing the legality and validity of the said order dated 12.8.1999, the petitioner approached this Court by filing the instant writ petition. 5. No affidavit has been filed which is the usual practice of the Education Department. On 30.8.2004 when the matter was taken up for hearing, this Court having regard to the reference made in the order dated 12.08.1999 about the communication dated 5.5.1999 requested Mr. V. M. Thomas, learned standing counsel. Education Department to procure and produce a copy of the said communication dated 5.5.1999. Today Mr. Thomas has produced the copy of the said communication dated 5.5.1999, which is in the form of an order passed by the Inspector of Schools, NDC, Nalbari. The said order dated 5.5.1999 was issued canceling the appointment of the petitioner so as to accommodate one Shri Kushal Kumar Mazumdar against the resultant vacancy of the petitioner in terms of the interim order passed by this Court on 7.4.1999 in W.P.(C) No. 1688/99 which was filed by said Shri Kushal Kumar Mazumdar. This Court earlier ordered for tagging this matter with the said writ petition. The records of the said writ petition has been tagged with this case. On perusal of the records in W.P.(C) No. 1688/99, it appears that the writ petition was dismissed for default on 23.3.2004. In that case said Shri Kushal Kumar Mazumdar obtained an interim order on 7.4.1999 by which the order dated 21.10.1998 was stayed. By the said order dated 21.10.1998 the appointment made in his favour by order dated 8.10.1998 was cancelled. A challenge was put to the said order dated 21.10.1998 by filing the aforesaid W.P.(C) No. 1688/99 in which the aforesaid interim order dated 7.4.1999 was passed. 6. To comply with the said interim order dated 7.4.1999, the Inspector of Schools, NDC, Nalbari, issued the order dated 5.5.1999 by which the order of cancellation of appointment passed in respect of said Shri Kushal Kumar Mazumdar was suspended until further order. Consequent upon the order so passed on 5.5.1999, the impugned order in the instant writ petition was issued on 12.8.1999 canceling the order of appointment made in favour of the petitioner in W.P.(C) No. 2674/99. Mr. V.M. Thomas, learned standing counsel. Consequent upon the order so passed on 5.5.1999, the impugned order in the instant writ petition was issued on 12.8.1999 canceling the order of appointment made in favour of the petitioner in W.P.(C) No. 2674/99. Mr. V.M. Thomas, learned standing counsel. Education Department submits that against the resultant vacancy Shri Kushal Kumar Mazumdar was appointed. However, later on same was cancelled and in the resultant vacancy the petitioner in the instant case was appointed. When said Shri Kushal Kumar Mazumdar made a challenge to the order of cancellation and the same was stayed by this Court, there was no alternative than to cancel the order made in favour of the present petitioner. 7. From the above, it will be seen that while the order of appointment made in favour of Shri Kushal Kumar Mazumdar in W.P.(C) No. 1688/99 was cancelled by the departmental authorities, the order of appointment made in favour of the petitioner in W.P.(C) No. 2674/99 was cancelled pursuant to the interim order passed by this Court on 7.4.1999 in the writ petition, i.e., in W.P.(C) No. 1688/99 filed by Shri Kushal Kumar Mazumdar. 8. I have gone through the records in W.P.(C) No. 1688/99. In the said proceeding the present petitioner was not a party. Apart from that before canceling the order of appointment by the impugned order dated 12.8.1999, the petitioner was not given any kind of notice to have his say in the matter. Thus, the order was passed in gross violation of the principle of natural justice. On that score alone, the impugned order dated 12.8.1999 is not sustainable. The records of W.P. (C) No. 1688/99 reveal that after obtaining the interim order dated 7.4.1999 the petitioner in that case did not take any steps for service of notice in spite of granting several opportunities. Eventually the writ petition was dismissed for default by order dated 23.3.2004. After such dismissal of the writ petition the stay order passed in that case is no longer operative. 9. In view of the above, I am of the considered opinion that the impugned order dated 12.8.1999 (Annexure E) is not sustainable and accordingly same stands set aside and quashed. The petitioner shall be taken back in his service maintaining the continuity in service for the purpose of seniority and other service benefits. 9. In view of the above, I am of the considered opinion that the impugned order dated 12.8.1999 (Annexure E) is not sustainable and accordingly same stands set aside and quashed. The petitioner shall be taken back in his service maintaining the continuity in service for the purpose of seniority and other service benefits. However, it is made clear that the petitioner will not be entitled to any back wages.