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2014 DIGILAW 288 (GAU)

JAMILA KHATUN v. STATE OF ASSAM

2014-03-11

UJJAL BHUYAN

body2014
JUDGMENT AND ORDER (ORAL) This case was heard on 06.03.2014 and today is fixed for delivery of order. 2. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 30.10.2012 issued by the Director of Elementary Education, Assam whereby appointment of the petitioner was found to be de hors the laid down procedure and direction was issued to the school authorities of Pub-Tumukabori M. E. Madrassa to allow the respondent No. 7 to continue as Hindi teacher of the said school. 3. Case of the petitioner is that Pub-Tumukabori M. E. Madrassa (School) was established in the year 1997 in the district of Morigaon. Respondent No. 7 was appointed as Hindi teacher of the school by the School Managing Committee in the year 2002. According to the petitioner, respondent No. 7 resigned from her service voluntarily w.e.f. 03.01.2003. Thereafter, petitioner was appointed by the School Managing Committee vide resolution dated 15.01.2003. 4. The school was recognized by the Government in the year 2005. Government of Assam framed guidelines to provide financial assistance to non-Government educational institutions within the State which were established prior to coming into force of the Assam Non-Government Educational Institutions Regulation Act, 2006. 5. When financial assistance was provided to the school, respondent No. 7 claimed herself to be a teacher of the said school and sought a share of the financial assistance. In this connection, she filed a writ petition before this Court, which was registered as WP(C) No. 5574/2011, contending that though she was the Hindi Teacher in the school, she was not granted financial assistance by showing her as having resigned from service voluntarily. This Court by order dated 04.11.2011 disposed of WP(C) No. 5574/2011 by directing the Director of Elementary Education, Assam to examine the grievance of the respondent No. 7 and thereafter to pass an appropriate order in accordance with law. Following the above order of this Court, impugned order dated 30.10.2012 was passed by the Director of Elementary Education, Assam. 6. Aggrieved, petitioner has filed the present writ petition seeking the relief as indicated above. 7. This Court by order dated 07.12.2012, issued notice and in the meanwhile, stayed the operation of the impugned order dated 30.10.2012. 8. Respondent Nos. 5 & 6 have filed affidavit. 6. Aggrieved, petitioner has filed the present writ petition seeking the relief as indicated above. 7. This Court by order dated 07.12.2012, issued notice and in the meanwhile, stayed the operation of the impugned order dated 30.10.2012. 8. Respondent Nos. 5 & 6 have filed affidavit. Supporting the stand taken by the petitioner, it is stated that the school was established on 01.01.1997 and obtained recognition w.e.f. 01.01.2005. The school has been receiving financial assistance from the Government and now fulfills all the requisite conditions for provincialisation under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, as amended. It is stated that respondent No. 7 voluntarily resigned from her service as Hindi Teacher, which was accepted by the School Managing Committee and it was also decided to fill up the resultant vacancy through advertisement. Following advertisement and selection, petitioner was selected and appointed as the Hindi Teacher of the school, pursuant to which she joined on 15.01.2003. It is stated that though the Director heard all the affected parties, he did not consider the documents submitted by the school authorities. The school at present is a venture educational institution and, therefore, the School Managing Committee is the competent authority to dismiss and appoint teaching and non-teaching staff. Since petitioner had resigned from her service voluntarily, which was accepted by the School Managing Committee, question of allowing the petitioner to continue her service as Hindi teacher does not arise. 9. Respondent No. 7 in her affidavit on the other hand has supported the impugned order dated 30.10.2012. According to her, she joined the school on 04.01.2002 and continued as Hindi Teacher of the school till January, 2011, whereafter she was illegally prevented from attending her classes by the Head Master of the school, because of which she had to approach this Court by filing WP(C) No. 5574/2011. Impugned order has been passed after hearing all the affected parties and therefore, no interference is called for. He submits that in the supervision report of the school submitted by the District Elementary Education Officer, Morigaon, inspection of the school was carried out on 08.03.2010, and as per the inspection report, name of the respondent No. 7 is shown as Assistant Teacher of the school. Contending that the impugned order is a well reasoned order, learned counsel for respondent No. 7 seeks dismissal of the writ petition. 10. I have heard Mr. Contending that the impugned order is a well reasoned order, learned counsel for respondent No. 7 seeks dismissal of the writ petition. 10. I have heard Mr. A. Mannaff, learned counsel for the petitioner, Mr. U. K. Goswami, learned Standing Counsel, Education Department, Mr. D. A. Kaiyum, learned counsel for respondent Nos. 5 & 6 and Mr. A. Shariff, learned counsel for respondent No. 7. 11. Submissions made by learned counsel for the parties are on pleaded lines and, therefore, a detailed narration of the submissions made is considered not necessary. However, since the Education Department has not filed affidavit, learned Standing Counsel has made submissions from the impugned order and contends that the impugned order does not suffer from any infirmity to warrant interference by this Court. 12. Submissions made have been considered. 13. As already noticed above, respondent No. 7 as the petitioner had earlier moved this Court by filing WP(C) No. 5574/2011 contending that she was illegally removed from the school to deprive her from receiving financial assistance provided by the Government. This Court by order dated 04.11.2011 had remanded the matter to the Director of Elementary Education, Assam, who was directed to examine the grievance of the respondent No. 7 and on determination of the facts, to pass appropriate order(s) in accordance with law. 14. Following the same, impugned order dated 30.10.2012 was passed. Since the said order is under challenge, the same is quoted hereunder in its entirety :– “ O R D E R Read : The order and direction of the Hon’ble Gauhati High Court dtd. 04.11.2011 passed in WP(C) No. 5574/2011. Also read : The report submitted by the District Elementary Education Officer, Morigaon and statement submitted by the petitioner & respondent (DEEO, H/M Miss J. Khatun). The statements of existing teacher were also disposed. Pub Tumukabori MEM was recognized vide DEE office Memo No. EPD/116/05/84 dtd. 14.12.2005 w.e.f. 01.01.2005 subject to the conditions that the authority has every right to cancel/withdraw/recognition of the school at any time, violate the Departmental Rules and regulations applicable to it/them and imposed conditions that (i) Reserve fund must be enhanced to Rs. 5000/-, (ii) General fund must be enhanced to Rs. 3000/-. As per statement of the District Elementary Education Officer, Morigaon the appointment of respondent No. 5 in the year 2003 is seen to be false. The petitioner Smti. 5000/-, (ii) General fund must be enhanced to Rs. 3000/-. As per statement of the District Elementary Education Officer, Morigaon the appointment of respondent No. 5 in the year 2003 is seen to be false. The petitioner Smti. Anowara Begum was appointed as Hindi Teacher in the school Pub Tumukabori MEM by Headmaster & Cum Secretary of the school and worked in that school since 04.01.2002 to 2010. Then she was replaced by the respondent No. 5 Smt. Jamila Khatun. The other working teachers Md. Rafiqul Islam, Md. Nurul Amin and Md. Abdul Matim also stated that the petitioner was working as Hindi teacher from 2002 to till December, 2010 and controversy arise in the year 2011 about the Hindi post of the Pub Tamukabori MEM., Smt. Jamila Khatun never attended the school before Feb/2012. Further, the name of the petitioner alongwith others 6 (six) are recorded in the DISE CODE 2010-2011. To accommodate the respondent No. 5 it was shown the proceeding Book (origin) was lost and fresh was maintained without taking any order from the authority. Interestingly the whole episode was created at the time of Govt. decision to extend F.A. to venture schools. Decision : In venture school, the School Managing Committee has the power for appointment and termination of teachers. The petitioner was working up to December 2010, From the statement of petitioner, other teachers and the DEEO, it is found that the respondent No. 5 has attended school since Feb/2011. Though the SMC is the authority, the SMC has to follow due procedure in appointment and in termination of appointment. In the instant case the H/M and Secretary has played role in termination of service of the petitioner and in the case of appointment of the respondent No. 5 without following procedure and hence is irregular and has argument in favour revision of the decision towards allowing the petitioner to continue. The order is passed in the form of the order of the High Court dtd. 04.11.2011 in WP(C) No. 5574/2011. The delay in passing the order is due to taking hearing of petitioner and respondents.” 15. A perusal of the said order would show that the Director had obtained a report from the District Elementary Education Officer, Morigaon, which was considered. Statements of existing teachers of the school were also recorded and considered. 04.11.2011 in WP(C) No. 5574/2011. The delay in passing the order is due to taking hearing of petitioner and respondents.” 15. A perusal of the said order would show that the Director had obtained a report from the District Elementary Education Officer, Morigaon, which was considered. Statements of existing teachers of the school were also recorded and considered. The Director has recorded a finding of fact that respondent No. 7 was appointed as Hindi Teacher in the school and served in that school from 04.01.2002 till the year 2010. This fact is corroborated by the statements made by the other teachers of the school. It was also found that name of respondent No. 7 is recorded in the DISE CODE 2010-11. On the other hand, the school authorities stated that the Proceeding Book (original) was lost and, therefore, could not be produced. Having regard to the entire circumstances, the Director recorded that respondent No. 7 had worked in the school up-to December, 2010 and that petitioner attended the school since February, 2011. Appointment of the petitioner was thus found to be irregular and accordingly, direction was issued to the school authorities to allow the respondent No. 7 to continue her service. 16. In the present proceeding also, no documents could be placed by the respondent Nos. 5 and 6 representing the school to show submission of voluntary resignation by the petitioner and acceptance of the same by the School Managing Committee. Before the Director, the school authorities could not produce the original record by saying that it was lost. 17. In view of above, this Court finds no good ground or reason to take a different view from the finding of fact recorded by the Director of Elementary Education in the impugned order dated 30.10.2012 which was passed on the direction of this Court. Moreover, as already noticed all the affected parties were heard and a fair procedure was followed before passing the impugned order. That being the position, no case for interference with the impugned order has been made out. 18. Writ petition is devoid of merit and is accordingly dismissed. Interim order passed by this Court on 07.12.2012 stands recalled. 19. No cost.