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Gauhati High Court · body

2010 DIGILAW 108 (GAU)

Nuruzzaman Haque v. State of Assam and Ors.

2010-02-11

AMITAVA ROY

body2010
1. Under challenge is the process of reconstitution of the School Managing Committee ('SMC') of Mahishkuti Pre-senior Madrassa of village Bhakhuradia in the District of Kamrup. The petitioner had been the President of the dissolved Managing Committee. The respondent No.5 herein is the Secretary of the new Managing Committee with the respondent Nos.6 to 18 as the President and the members thereof. 2. I have heard Mr. A.C. Sarma, learned counsel for the petitioner Mr. S.K. Das, learned Standing Counsel, Education Department, for the official respondents and Mr. A. Sattar assisted by Mr. Z. Mukit, advocates for the respondent Nos.5 to 18. 3. The petitioner's Managing Committee was constituted in terms of the guidelines contained in the Notification No. AEE/522/2006/02 dated 17.6.2006 of the Education (Elementary) Department, Government of Assam on 19.10.2006 and in terms thereof was entitled to be in office for a period of two years, i.e., up to 18.10.2008. According to the petitioner, during the tenure of his SMC, the Secretary thereof (also the Headmaster of the Madrassa) was vide its resolution dated 2.5.2008 removed from his post on the ground of commission of serious irregularities. While the matter rested at that, the petitioner has alleged, that the State respondents without following the procedure prescribed by the Notification dated 17.6.2006 got reconstituted another Managing Committee on 24.8.2008 to which the territorial jurisdictional Block Elementary Education Officer, Chamaria accorded his approval. The challenge is on the ground that such a reconstitution was impermissible before expiry of the normal term of two years of the earlier SMC, in absence of any reason justifying the same as contemplated in the guidelines and further, that the process was not in compliance thereof. 4. The Deputy Director of Madrassa Education, Assam on behalf of the respondent No. 3 in his affidavit, while admitting that the constitution/reconstitution of the SMCs of Lower Primary Schools, Middle English Schools and Middle English Madrassas in the State has to be obligatorily in accordance with the guidelines contained in the Notification dated 17.6.2006, has averred that as the action taken against the Secretary of the school involved was not in accordance with the procedure prescribed, the same was not approved. The deponent, however, refrained to make any further comment on the merit of the challenge to the reconstitution of the SMC. 5. The deponent, however, refrained to make any further comment on the merit of the challenge to the reconstitution of the SMC. 5. The respondent Nos.5 to 18 in their separate affidavits affirmed by the respondent No. 5 in substance, have pleaded that the process for reconstitution of the SMC had to be undertaken in terms of the directions contained in the letter dated 29.4.2008 of the Mission Director, Assam Sarba Siksha Abhijan Mission ('the Mission'). According to the answering respondents, the exercise was conducted strictly in accordance with the letter and spirit of the guidelines contained in the aforementioned Notification. They have contended that the composition of the new SMC was decided in the general meeting held on 24.8.2008. As in terms of the guidelines, no matriculate or elder member of the concerned village was available, Mr. Monjil Haque under metric was inducted as the President of the new body as permissible under the said guidelines. 6. Mr. Sarma has urged that it being evident that on the date on which the earlier SMC was purportedly dissolved, its term under the guidelines had not expired, the very initiation of the process for reconstitution thereof is void in law. There being no material on record justifying the pre-matured disbandment of the earlier SMC as envisaged under the guidelines, all consequential steps towards reconstitution are non est, he contended. According to Mr. Sarma, the so-called approval of the new Managing Committee by the Block Elementary Education Officer, Chamaria is on the face of the record in mechanical exercise of power and without any application of mind. 7. Mr. Das, in support of the stand taken by the Deputy Director of Madrassa Education has produced documents which, inter alia, include the copies of the proceedings of the general body meeting held on 17.8.2008 and 24.8.2008 as well as the approval by the Block Elementary Education Officer, Chamaria, Kamrup to the reconstitution of the SMC of the institution. 8. Mr. Sattar, however, has urged that it being obligatory on the part of all concerned including the respondent No.5, in view of the instructions/directions contained in the letter dated 29.4.2008 of the Mission Director, the Mission to initiate the process for reconstitution of all SMCs in the State, he had no alternative but to act in compliance thereof and, therefore, the plea to the contrary ought not to be entertained. According to him, as there is no material contrary to the assertion that the process for reconstitution of the SMC involved had been in adherence to the guidelines contained in the Notification dated 17.6.2006, the challenge is misconceived and ought to be negated. 9. I have extended my thoughtful consideration to the rival pleadings and the arguments advanced based thereon. Admittedly, the petitioner's Managing Committee had been constituted on 19.10.2006 and in terms of the Notification dated 17.6.2006 it was entitled to continue in its office for a period of two years culminating on 18.10.2008. On the face of the record, the reconstitution of the SMC, thus, has been made before the expiry of the said term. The aforementioned Notification in clear terms contemplates the eventualities in which the dissolution of a SMC may be effected prematurely/whereafter the reconstitution thereof is permissible. In the case in hand, as on date, there is no material to indicate the reason for premature dissolution of the earlier SMC. Neither there is any order to that effect, nor any factual foundation justifying the same. On the other hand, it is the unequivocal stand of the respondent Nos. 5 to 18 that the action taken by the earlier SMC to remove the respondent No.5 did not meet the approval of the concerned departmental authority. In that view of the matter, on the date of the issuance of the letter dated 29.4.2008 and thereafter on which the meeting for reconstitution of the new Managing Committee was held, the composition of the earlier SMC had remained intact. 10. Further, a bare reading of the letter dated 29.4.2008 suggests that the direction contained therein was for the reconstitution for the SMCs which had by then completed their normal term as contemplated under the Notification dated 17.6.2006. This per se, would not in the opinion of this court could have included the SMC of Mahikhkhuti Pre-senior Madrassa which till then had not completed its term. There is no indication in the aforementioned letter to include within its sweep also the SMCs which by then had not completed its term. It was, therefore, in the estimate of this court, incumbent on the part of the respondent No. 5 being the Headmaster of the institution as well as the Secretary of the earlier SMC to point out to the concerned authorities of the Mission of the above fact. It was, therefore, in the estimate of this court, incumbent on the part of the respondent No. 5 being the Headmaster of the institution as well as the Secretary of the earlier SMC to point out to the concerned authorities of the Mission of the above fact. Instead, the new process was initiated. This is clearly in contravention of the letter and spirit of the guidelines contained in the Notification dated 17.6.2006 more particularly, those bearing on the dissolution of existing SMCs before expiry of its normal term. By no means, the letter dated 29.4.2008 could have superseded the guidelines embodied in the Notification dated 17.6.2006 and the clear and unequivocal stipulations contained therein. In the above view of the matter, the very initiation of the process for reconstitution of the SMC of Mahishkhuti Pre-senior Madrassa has to be construed as void. Consequentially, the reconstitution of the SMC and the approval thereof on 25.8.2008 by the Block Elementary Education Officer, Chamaria is adjudged to be non est. By the same analogy, the proceedings of the general meeting held on 24.8.2008 stand nullified. 11. Noticeably, as on date, the term of the earlier SMC has since expired on 18.10.2008. In this view of the matter, there can be no direction for restoration of the said SMC in office. The concerned authorities of the Mission as well as the Education Department of the State would now cause necessary steps to be taken so that the new SMC of Mahishkhuti Pre-senior Madrassa is inducted in office at the earliest. Needless to say, that the process in this regard would be administered strictly in accordance with the guidelines contained in the Notification dated 17.6.2006 as well as other executive instructions and the administrative norms that might have been evolved meanwhile for the purpose. As the matter relates to an academic institution, the process as ordered should be completed as early as possible preferably within a period of one month from the date of receipt of the certified copy of this order. For this period of one month, the SMC in office as on date would continue to manage the affairs of the institution. .. 12. The petition stands allowed in the above terms. No costs.