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Gauhati High Court · body

2014 DIGILAW 1028 (GAU)

Panika Devi v. State of Assam & Ors.

2014-12-01

UJJAL BHUYAN

body2014
1. Issues raised in both the writ petitions are inter-related and, accordingly, the two writ petitions were heard together on 27.11.2014. Today is fixed for delivery of order. 2. Order is dictated in the open Court. 3. Heard Mr. MR Khandakar, learned counsel for the petitioner in WP(C) No. 3126/2013 and Mr. A.M. Buzarbaruah, learned Senior counsel for the petitioner in WP(C) No. 4201/2013. Also heard Mr. A.R. Sikdar, learned counsel appearing for the school authority i.e., respondent Nos. 6 & 7 in WP(C) No. 3126/2013 and respondent Nos. 7 & 8 in WP(C) No. 4201/2013. Mr. R.M. Deka, learned Standing Counsel, Education (Ele.) Department has also been heard. 4. In WP(C) No. 3126/2013, filed by Sri Dipak Kr. Das, petitioner has challenged the legality and validity of the order dated 09.05.2013, passed by the District Scrutiny Committee, Dhubri, rejecting the claim of the petitioner for inclusion of his name as Assistant Teacher (Hindi) in the list of teachers of Girija Boro ME School, District Dhubri for the purpose of provincialisation. By the said order, the District Scrutiny Committee also rejected the competing claim of respondent No. 9, Smti. Panika Devi for provincialisation of her service as Assistant Teacher (Hindi) in the said School. Respondent No. 9 (Smti. Panika Devi), has filed the other writ petition i.e., WP(C) No. 4201/2013 assailing the correctness of the aforesaid order dated 09.05.2013 (for convenience Sri Dipak Kr. Das will be referred to as the petitioner and Smti. Panika Devi will be referred to as respondent No. 9 in the present order). 5. According to the petitioner, he is the founder teacher of Girija Boro ME School (School hereafter), having been appointed on 12.03.1983. His appointment was later on approved by the departmental authorities. School received financial assistance for the years 2010-2011 and 2011-12. Managing Committee of the School adopted a resolution on 07.01.2010 suspending the petitioner from his service for prolonged absence and allowing respondent No. 9 to serve on honourary basis. It is stated that there are lot of over writings in the said resolution, which suggest that it was a manipulated one to deprive the petitioner from getting his share of the financial assistance and also to exclude him from the benefit of provincialisation. It is stated that there are lot of over writings in the said resolution, which suggest that it was a manipulated one to deprive the petitioner from getting his share of the financial assistance and also to exclude him from the benefit of provincialisation. According to the petitioner, he continued in the service of the School, which is reflected in the District Information System for Education (DISE) Code for various years, indicating that the petitioner was rendering service in the School. On 20.01.2011, the Managing Committee of the School adopted another resolution appointing respondent No. 9 as Assistant Teacher (Hindi) of the School in place of petitioner. Appointment of petitioner was cancelled. Petitioner has alleged that this resolution is also ante-dated and has been manipulated to achieve the same objective. In the meanwhile, the School is being considered for provincialisation under the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. At that stage, petitioner moved this Court by filing WP(C) No. 337/2013, which was disposed of by this Court vide order dated 31.01.2013 with a direction to the District Scrutiny Committee to consider the claim of the petitioner as well as of respondent No. 9 and thereafter to take an appropriate decision. Following the said order of this Court, the impugned order dated 09.05.2013 has been passed. 6. Mr. Khandakar, learned counsel for the petitioner submits that the DISE Code of the School clearly shows that the petitioner was in service of the School all throughout, including the year 2010-2011. This only goes to show that the two resolutions dated 07.01.2010 and 20.01.2011 are not genuine and have been manufactured to deprive the petitioner from the benefits of financial assistance and provincialisation. He also refers to the overwriting in the two resolutions in support of his above submission. 7. On the other hand, Mr. Buzarbaruah, learned Senior Counsel appearing for the respondent No. 9 submits that since as per the resolution dated 07.01.2010 the petitioner was placed under suspension, respondent No. 9 was allowed to take classes on honourary basis in place of the petitioner. This arrangement was formalized by the subsequent resolution dated 20.01.2011, by which appointment of the petitioner was cancelled and respondent No. 9 was appointed in his place. This arrangement was formalized by the subsequent resolution dated 20.01.2011, by which appointment of the petitioner was cancelled and respondent No. 9 was appointed in his place. Therefore, it would be wrong to say that respondent No. 9 was appointed on 20.01.2011, but as a matter of fact, her service in the School commenced on and from 07.01.2010. The Govt. has fixed the date 01.01.2011 as the cutoff date for the purpose of provincialisation of the teaching and non-teaching staff of the venture educational institutions brought within the net of provincialisation. Therefore, on a meaningful reading of the two resolutions, it would be evident that respondent No. 9 was appointed pursuant to resolution dated 07.01.2010 and, therefore, she is entitled to provincialisation, being appointed prior to 01-01-2011. Rejection of her case is, therefore, not justified. 8. Mr. Sikdar, learned counsel appearing on behalf of the School has referred to the identical affidavits filed in both the cases. He submits that question of tampering or manipulation or manufacturing of the resolutions does not arise at all. Because of lack of infrastructure in venture schools in rural areas, there is bound to be some corrections in the proceedings of the meetings of the Managing Committee of the School. That cannot be construed as tampering with the proceedings. He supports the impugned order passed by the District Scrutiny Committee and contends that while the petitioner remained absent for a prolonged period which necessitated cancellation of his appointment, conduct of respondent No. 9 is also not at all satisfactory. This is reflected in the proceedings of the meetings of the Managing Committee. Therefore, the School authority is of the view that service of both the teachers are not fit for provincialisation. As such, the impugned order does not call for any interference. 9. Mr. RM Deka, learned Standing Counsel, Education (Ele.) Department, Assam submits that the authorities in the Education Department are going strictly by the letter of the law and whoever is found eligible for provincialisation of their service, would be provincialised. In the present round of scrutiny, both petitioner and respondent No. 9 have been found to be ineligible for provincialisation. As such, the impugned order does not call for any interference. 10. Submissions made have been considered. In the present round of scrutiny, both petitioner and respondent No. 9 have been found to be ineligible for provincialisation. As such, the impugned order does not call for any interference. 10. Submissions made have been considered. At the outset, it may be pointed out that this Court while issuing notice in WP(C) No. 3126/2013, passed an interim order dated 06.06.2013, directing that the post of Assistant Teacher (Hindi) in the School should not be provincialised without the leave of the Court. 11. Order dated 09.05.2013, which has been impugned in both the writ petitions, is extracted hereunder in its entirety: “ The District Scrutiny Committee (hereafter referred to as the Committee) perused the Hon’ble Gauhati High Court order dated 31.01.2013 in WP(C) No. 337/2013, Dipak Kr. Das v. State of Assam & Ors., and examined the statements of the petitioner, the SMC President and the Head Master of Girija Boro ME School which were recorded at the time of hearing conducted on 26.03.2013 in compliance with the Hon’ble High Courts above order. The committee also perused and examined other relevant papers. The matter under examination was relating to termination of the petitioner from the post of Hindi Teacher of Girija Boro ME School and induction of Respondent No. 8 in his place. The Committee observed as follows:- 1. The petitioner, Shri Dipak Kr. Das joined Girija Boro ME School on 27.03.1983 and his post was approved on 05.08.1995 by the then DEEO, Dhubri. On scrutiny of Teachers’ Attendance Register read with proceedings of SMC meetings, the committee observed, that the SMC served him show cause notice several times for his prolonged unauthorized absence since 2006. Finally the SMC adopted a resolution terminating the services of the petitioner in its meeting held on 07.01.2010. However, the Head Master admitted that the termination letter was not served to the petitioner. The committee also perused the inspection report of the BEEO, Bilasipara, dated 15.09.2011, which also establishes his prolonged absence from school. The petitioner could not produce any evidence of his regular attendance in school during the alleged period. He contested for election to ZP member in the last Panchayat Election without permission from the SMC as confirmed by the Head Master and report of the SDO (Civil) Bilasipara. 2. The petitioner could not produce any evidence of his regular attendance in school during the alleged period. He contested for election to ZP member in the last Panchayat Election without permission from the SMC as confirmed by the Head Master and report of the SDO (Civil) Bilasipara. 2. On scrutiny and examination of relevant records relating to the respondent No. 8, Panika Devi, the committee observed that in her statement at the time of hearing, she mentioned that she joined the school as Hindi teacher on 25.01.2010. Perusal of the proceeding of the SMC, reveals that the SMC adopted a resolution in its meeting held on 07.01.2010 allowing her to teach Hindi honourarily. But in the format of individual information furnished by her in 2011 for provincialisation of her service, she herself mentioned that her period of service in the school was 11 months 9 days, which confirmed the date of her joining 22.01.2011 as shown by the Head Master in the school application for provincialisation of service of the employees at the same time. In his statement, the Head Master admitted over writings on the date of the resolutions dated 20.01.2011. The committee observed that the SMC appointed the respondent No. 8 without serving termination letter to the petitioner which is contrary to the existing procedure of appointment. Under the facts and circumstances stated above, the committee rejected the claim of the petitioner for provincialisation of his service on the grounds mentioned at para 1 above as per resolution No. 2 of its meeting held on 20.01.2011. The committee also could not recommend provincialisation of service of respondent No. 8 as she was appointed by the SMC on 22.01.2011 i.e. after 01.01.2011, which is not permissible under the provisions of Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012. This order is issued as per decision of the DSC meeting held on 02.05.2013 vide resolution No. 2 in compliance with order dated 31.01.2013 of the Hon’ble Gauhati High Court in WP(C) No. 337/2013. Sd/- Member Secretary DSC & District Ele. Edu. Officer, Dhubri. 12. From a reading of the order dated 09.05.2013, it is seen that a view has been taken by the District Scrutiny Committee that petitioner had remained absent from his duties for a prolonged period without any authority. Show cause notices issued to him were not responded. Sd/- Member Secretary DSC & District Ele. Edu. Officer, Dhubri. 12. From a reading of the order dated 09.05.2013, it is seen that a view has been taken by the District Scrutiny Committee that petitioner had remained absent from his duties for a prolonged period without any authority. Show cause notices issued to him were not responded. Ultimately, his service had to be terminated. In this connection, reliance has been placed on the report of the Block Elementary Education Officer, Bilasipara. It is stated that petitioner contested in the Panchayat Election without permission of the School authority, which is also borne out by the report of Sub-Divisional Officer (Civil), Bilasipara. Regarding respondent No. 9, the District Scrutiny Committee took the view that she was appointed following the resolution dated 20.01.2011. Since her appointment is after the cutoff date of 01.01.2011, her case for provincialisation was also rejected. 13. The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (2011 Act) has been enacted to provincialize the service of the employees of venture educational institutions in the State of Assam and to restrict further establishment of such institutions in the State. Since it is admitted that the School in question is a venture educational institution, it is not necessary to delve into the definition of venture educational institution as given in the 2011 Act. Under section 2(h), teaching and non-teaching staff of venture educational institutions appointed in the concerned venture educational institution before 01.01.2011, would be entitled to provincialisation. Eligibility criteria for provincialisation is mentioned in section 3. Under section 4, upon provincialisation, the teaching and non-teaching staff would be deemed to be employees of the State Govt. and their terms and conditions of service would be governed by the service rules applicable to the State Govt. employees of corresponding ranks. Since in the process of provincialisation there are bound to be claims and counter-claims leading to disputes, section 10 of the 2011 Act lays down the procedure for scrutiny of the claims for provincialisation. Section 10 envisages scrutiny at three stages – firstly, at the District Level through the District Scrutiny Committee constituted separately for Elementary, Secondary and Higher Education; secondly, at the level of the Directorate and lastly, at the level of the State Government. 14. Section 10 envisages scrutiny at three stages – firstly, at the District Level through the District Scrutiny Committee constituted separately for Elementary, Secondary and Higher Education; secondly, at the level of the Directorate and lastly, at the level of the State Government. 14. Sub-section (4) of section 10 provides that the District Scrutiny Committee shall forward the verified list of eligible teachers and staff to the concerned Director who shall, thereafter make such further scrutiny as may be required and forward the same to the concerned department of the State Govt. for consideration and final decision. Sub-section (4) to section 10 reads as under: - “(4) The District Scrutiny Committee shall forward the verified list of eligible teachers school-wise in accordance with the number of posts specified in the Schedule appended to this Act, to the concerned Director who shall, after making such further scrutiny as may be required, shall forward the same to the concerned Department of the State Govt. for consideration and for issuing Notification in respect of the eligible institutions and employees eligible for getting their services provincialised.” 15. From a careful reading of section 10 of the 2011 Act, particularly sub-section (4) thereof, it becomes clear that the verification or decision of the District Scrutiny Committee is not the ultimate or final. District Scrutiny Committee does not have the final say in matters of provincialisation. It is an ongoing process of scrutiny and what has happened in the present case is that the first stage of scrutiny by the District Scrutiny Committee has been completed. No doubt the District Scrutiny Committee has scrutinized the claims of the petitioner and respondent No. 9 and found them to be not entitled to provincialisation. This decision of the District Scrutiny Committee would now be subject to such further scrutiny of the Director of Elementary Education, Assam as he may consider necessary. 16. There is another aspect. The State has enacted the Assam Non-Government Educational Institutions (Regulations and Management) Act, 2006 to regulate the establishment and management of non-Government educational institutions in the State of Assam. 16. There is another aspect. The State has enacted the Assam Non-Government Educational Institutions (Regulations and Management) Act, 2006 to regulate the establishment and management of non-Government educational institutions in the State of Assam. Non-Government educational institutions have been defined to mean schools or junior colleges established and run by individual or by association of individuals or by any non-Government organization or society or trust except minority educational institutions imparting education at primary, middle, secondary and higher secondary level without receiving any grants-in-aid from the State Government excluding educational institutions run or aided by the Central Government or by the State Government. Section 6 deals with registration and administrative recognition of existing non-Government educational institutions and consequences of non-registration and failure to meet the requirements upon registration and recognition. Section 15 deals with appointment and matters of discipline of employees of non-Government educational institutions. 17. Therefore, in the light of the above, the Director in the course of further scrutiny may also examine whether the School had obtained registration and administrative recognition under the Assam Non- Government Educational Institutions (Regulation & Management) Act, 2006 and if so, whether provisions of section 15 of the said Act was complied with while cancelling the appointment of the petitioner. In the event of non-compliance, the Director shall also consider the effect of such non-compliance on the claim of provincialisation. The stand of the School authority that conduct of both petitioner and respondent No. 9 are not satisfactory to warrant provincialisation shall also be borne in mind. 18. Since the process of scrutiny as noticed above is not yet over, Court is of the view that strictly speaking the two writ petitions are premature at this stage as the decision of the District Scrutiny Committee is not final. 19. Accordingly and subject to the observations made above, this Court is not inclined to entertain the two writ petitions at this stage. 20. Both the writ petitions are dismissed.