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2008 DIGILAW 474 (GAU)

Abdul Malek v. State of Assam

2008-06-27

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. The writ petitioner, by this writ petition under Article 226 of the Constitution of India has challenged the order under Memo No. MB/GA/43/86/Pt. 1/513 dated 2.5.2002 passed by the Deputy Director of Madrassa Education, Assam, by which the respondent No. 4 was allowed to act as in-charge Principal/Secretary of the Rahamatganj Arabic College, Dhubri and sought for setting aside and quashing of the said order and also for issuance of appropriate direction to the respondent authorities. 2. The case of the petitioner briefly stated is that he was appointed as Lecturer in Rahamatganj Arabic College by the Managing Committee vide order dated 14.5.1990 with effect from 19.5.1990, he having been the requisite qualification for such appointment. On the same date i.e. 19.5.1990 the petitioner joined in the service. 3. Vide resolution No. dated 9.12.1991, the Managing Committee of the said college also appointed respondent No. 4 as lecturer with effect from 20.10.1990 and accordingly he joined on the same date. Their appointments were approved by the Deputy Director of Madrassa Education along with the other staff of the college vide order dated 22.3.1993. 4. The Government of Assam vide order dated 15.3.1996 took up the said college under the deficit system of grants-in-aid with effect from 15.8.1994 along with other Madrassa/Colleges, which was subsequently provincialised communicated vide letter dated 20.10.1997. 5. After retirement of the regular Principal of the said college on 30.4.2002, the respondent authorities without considering the seniority of the petitioner, vide order dated 2.5.2002 allowed the respondent No. 4 to act as in-charge Principal/Secretary of the college until appointment of regular Principal under the rules, although respondent No. 4 is junior to writ petitioner. The petitioner being aggrieved thereby filed this writ petition seeking quashing of the said order by which the respondent No. 4 was allowed to act as in-charge Principal. 6. Writ petitioner, further contended that as per Rule 13 of the Assam Secondary Education (Provincialised Service) Rules, 1982 (for short ASE(PS) Rules) provides the criteria of determining the interse seniority between teachers in the same cadre as under : (1) Date of continuous appointment, (2) Date of joining, (3) Date of birth. 6. Writ petitioner, further contended that as per Rule 13 of the Assam Secondary Education (Provincialised Service) Rules, 1982 (for short ASE(PS) Rules) provides the criteria of determining the interse seniority between teachers in the same cadre as under : (1) Date of continuous appointment, (2) Date of joining, (3) Date of birth. It is contended further that since the petitioner was appointed earlier than the respondent No. 4 in the service, he is senior to respondent No. 4 and as per ASE(PS) Rules, he ought to have been allowed to act as in-charge Principal of the institution until the appointment of regular Principal. 7. On filing of this writ petition this Court vide order dated 25.2.2003 referred the matter to the Government of Assam, Education Department to determine inter-se seniority of the writ petitioner and the private respondent No. 4 within a period of 30 days from the date of order. It was also directed that decision so taken shall be transmitted to the court for further orders. 8. Pursuant to the order the Deputy Director of Madrassa Education, Assam, Kahilipara, Guwahati had taken the matter of fixing of inter-se seniority between the petitioner and the private respondent No. 4 and after scrutiny of the relevant documents made available before him submitted a report wherein it is made clear that writ petitioner as per facts and documents is senior to private respondent No. 4 and requested the court to relieve private respondent No. 4 from the post of Principal in-charge and to put the writ petitioner in the post of Principal in-charge. 9. The respondent No. 4 filed affidavit-in-opposition denying all contentions averred by the writ petitioner. He categorically contended that he is senior to writ petitioner and thereby he was rightly put as acting Principal or in other words Principal in-charge of the said Arabic college. 10. Learned Counsel of both the parties were heard at length. 11. Since the Deputy Director of Madrassa Education, Assam, Kahilipara per direction of this Court made an inquiry to determine the inter-se seniority position between the writ petitioner and the private respondent No. 4 and since the matter of inter-se seniority was decided by the Deputy Director of Madrassa Education on the basis of the available documents, the matter needs no further inquiry. The report so submitted by the Deputy Director of Madrassa sets the entire matter at rest wherein it was held that the writ petitioner as per records senior to private respondent No. 4. Rule 13 of ASE(PS) Rules provides some criteria to determine the inter-se seniority between the teachers of the same cadre, writ petitioner being held as senior to respondent No. 4 ought to have been appointed as Principal in-charge of the said Arabic College. Private respondent No. 4 being junior to writ petitioner, as per Rule 13 of the ASE(PS) Rules he could not have been appointed as Principal in-charge of the said institution. Since the inquiry report has been submitted as per direction of this Court it has got an overriding effect of the contention of the private respondent No. 4 made in the shape of affidavit-in-opposition. This Court, therefore, does not see any good ground to brush aside the report of the Deputy Director of Madrassa Education, the controlling authority of Madrassa Education, Assam. 12. Since the writ petitioner per report has been determined as senior to private respondent No. 4 by the appropriate authority (Deputy Director) as per Rule 13 of the ASE(PS) Rules, he is entitled to hold the post of Principal in-charge until appointment of a regular Principal under the Rules. 13. The counsel for the petitioner while supporting the case relied on the decision reported in (2003) 3 GLR 446; (Nani Bhusan Roy v. State of Assam and Ors.) wherein it was held that the length of service in a particular school should be the sole consideration for allowing the person to hold charge of Principal or Vice Principal provided he is otherwise eligible and considered fit to hold the concerned post. Herein in the present case the writ petitioner possesses the requisite qualification. He passed Fazile Dewband (F.D) examination and also Mamtazul Mahaddesin (M.M). The private respondent No. 4 also possesses the same qualification. It is nowhere found either in the affidavit-in-opposition or in the report prepared by Deputy Director, Assam, Kahilipara that the writ petitioner is not having the requisite qualification and fit for holding the post of Principal in-charge. He passed Fazile Dewband (F.D) examination and also Mamtazul Mahaddesin (M.M). The private respondent No. 4 also possesses the same qualification. It is nowhere found either in the affidavit-in-opposition or in the report prepared by Deputy Director, Assam, Kahilipara that the writ petitioner is not having the requisite qualification and fit for holding the post of Principal in-charge. When there is absence of such averment in the entire proceeding and when the Deputy Director, Assam Kahilipara in his report made a request to relieve private respondent No. 4 from the post of Principal in-charge and appoint the writ petitioner, being the senior to private respondent No. 4, we do not find that the writ petitioner does not possess requisite qualification and unfit for holding of the concerned post. This present case also equally falls in the same line of the case reported in (2003) 3 GLR 446. This Court is, therefore, not constrained to hold a different view than the view adopted by this Hon'ble Court in the case Nani Bhusan Roy v. State of Assam and Ors. 14. In view of the above, this writ petition is disposed of with a direction to the respondent/authorities to appoint the writ petitioner as in-charge Principal if in the meantime regular Principal is not appointed and to relieve private respondent No. 4 from the said post. This petition is accordingly dispose of. No cost.