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2013 DIGILAW 399 (GAU)

Md. Alauddin Mondal v. State of Assam

2013-06-12

HRISHIKESH ROY

body2013
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. H. A. Sarkar, learned counsel appearing for the petitioner. The departmental authorities are represented by Mr. U.K. Goswami, the Standing Counsel, Education. The respondent No. 6 Mohammad Ali is represented by Advocate Mr. B. Sinha. The petitioner and the respondent No. 6 are litigating since long for the post of Hindi Teacher in the Fakrul Ullum Arabic College (hereinafter referred to as 'the Arabic College') and the petitioner challenges the order dated 27.12.2006 (Annexure-P), whereby the Dy. Director of Madrassa Education, Assam has declared that since the writ petitioner was not appointed by the Managing Committee of the Arabic College, it was illegal and consequently the respondent No. 6, who was appointed by the Managing Committee on 6.9.1992, allowed to continue in service as the Hindi Teacher of the Arabic College. 2. It may be noted that the respondent No. 6 was appointed on 6.9.1992, when the venture College was yet to be provincialised but the Arabic College was subsequently provincialised on 15.8.1994. On the other hand the petitioner was appointed as the Hindi Teacher through the order dated 20.1.1993 (Annexure-E), issued by the Superintendent of the Arabic College. 3. The aggrieved respondent No. 6 challenged the appointment of the writ petitioner through the Civil Rule No. 552/1994 and this Court by the order dated 5.12.1995 (Annexure-K), quashed the appointment of the Alauddin Mondal and allowed the respondent No. 6 Mohammad Ali to continue as Hindi Teacher in the Arabic College. However the departmental authorities were given the liberty to consider the grievances of Alauddin Mondal. 4. Alauddin Mondal being aggrieved filed the Writ Appeal No. 33/1996, however the Division Bench through its order dated 28.2.1996 (Annexure-M) declined to interfere with the order passed by the learned Single Judge in favour of Mohammad Ali. But since in the meantime the Dy. Director, Madrassa Education passed the order on 27.6.1995 (Annexure-L) upholding the legality of the appointment of Mohammad Ali, the aggrieved petitioner Alauddin Mondal challenged the Dy. Director's decision by filing another case i.e. the Civil Rule No. 1687/1996. 5. As the parties were not afforded any hearing by the Dy. Director, this Court through the judgment dated 17.7.2006 (Annexure-N), interfered with the Dy. Director's order dated 27.6.1995 and remitted the matter for reconsideration, by affording hearing to the rival contenders. 6. Director's decision by filing another case i.e. the Civil Rule No. 1687/1996. 5. As the parties were not afforded any hearing by the Dy. Director, this Court through the judgment dated 17.7.2006 (Annexure-N), interfered with the Dy. Director's order dated 27.6.1995 and remitted the matter for reconsideration, by affording hearing to the rival contenders. 6. On remand of the matter, the parties were heard by the Dy. Director and he recorded the following findings in favour of respondent No. 6 Mohammad Ali:- (i) Mohammad Ali was appointed by the M.C. on 07.09.92 when the college was simply recognised and at this state the M.C. was the appointing authority of the employees. (ii) Subsequently, the college was taken under full Grant-in-aid system from the moths of October in 1992 and the Govt. provincialised the college w.e.f. 15.08.94 under Assam Madrassa Education (Provincialisation) Act, 1995. In both the cases the post was sanctioned and retained against the name of Mohammad Ali-the Hindi teacher of the college. (iii) He has been discharging services to the Arabic College since 1992 till date for a long period of 14 years. (iv) He has been getting his salary from the Govt. exchequer regularly. (v) The Govt. in the meantime, has upgraded the post to the graduate scale of pay and fixed the qualification, for the post of Madhyama Bisarad & H.S. Examination. (vi) In the meantime, he got a good deal of experience in this line to render his services properly. 7. In so far as the writ petitioner Alauddin Mondal is concerned, the Dy. Director found that while the Managing Committee of the venture Arabic College was only competent to issue appointment order, the appointment of Alauddin Mondal was not made by the Managing Committee. Instead, the Dy. Director, Madrassa Education without reference to the Managing Committee, selected him for appointment. Accordingly the unauthorised appointment of the Alauddin Mondal was quashed and consequential direction was issued to allow the respondent No. 6 Mohammad Ali to continue his service as the Hindi Teacher in the Arabic College. 8. Mr. Instead, the Dy. Director, Madrassa Education without reference to the Managing Committee, selected him for appointment. Accordingly the unauthorised appointment of the Alauddin Mondal was quashed and consequential direction was issued to allow the respondent No. 6 Mohammad Ali to continue his service as the Hindi Teacher in the Arabic College. 8. Mr. H. A. Sarkar, learned counsel for the petitioner refers to the resolution dated 6.9.1992 adopted by the Managing Committee of the Arabic College to project that the Secretary of the Managing Committee was authorised to take steps to fill up the vacant post of Hindi Teacher and on the basis of this resolution of the Managing Committee, the petitioner claims legitimacy to his appointment. 9. However the order dated 6.1.1993 (Annexure-D) of the Dy. Director, Madrassa Education reveals that neither the Managing Committee nor its Secretary had any role on the selection of the writ petitioner in the Hindi Teacher's vacancy and in fact it was the Dy. Director himself, who selected the petitioner and ordered his appointment in the Arabic College. The appointment letter issued subsequently by the Superintendent to the petitioner is therefore only a consequential order, in pursuant to the unauthorized selection and appointment made by the Dy. Director, Madrassa Education. 10. At this stage it may be appropriate to note the norms which govern appointment in venture institutions. Rule-1 of Appendix-1 of Service Rule for Employees of Government Aided Schools (hereinafter referred to as 'the Service Rule'), which governs appointment at the relevant time in venture institution, shows the competency of the Managing Committee to appoint staff in the venture institution. The Service Rule does not confer any power of appointment either to the Superintendent/Secretary of the Managing Committee or to the Dy. Director of the Madrassa Education. Here in this case it is clear that the writ petitioner was selected and appointed without any authority by the Dy. Director, whereas the respondent No. 6 Mohammad Ali was appointed on 6.9.1992 by the Managing Committee of the Arabic College. This was the basis for according approval to the appointment of the respondent No. 6 through the impugned order dated 27.12.2006 (Annexure-P). 11. Therefore bearing in mind that the Dy. Director, Madrassa Education wasn't empowered to give appointment in venture institutions, I see no scope to disturb the impugned order dated 27.12.2006 (Annexure-P), passed by the Dy. Director of Madrassa Education, Assam. 11. Therefore bearing in mind that the Dy. Director, Madrassa Education wasn't empowered to give appointment in venture institutions, I see no scope to disturb the impugned order dated 27.12.2006 (Annexure-P), passed by the Dy. Director of Madrassa Education, Assam. Accordingly this case being without any merit is dismissed. Petition dismissed.