Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 633 (GAU)

SARIF UD DAULA v. STATE OF ASSAM

2014-06-17

A.M.SAPRE, UJJAL BHUYAN

body2014
JUDGMENT (A.M. Sapre, C.J.) Heard Ms. K.L.R. Yanthan, learned counsel for the appellant. Also heard Mr. D. Saikia, learned Additional Advocate General, Assam assisted by Mr. A. Deka, learned Standing Counsel, Education Department and Mr. A.M. Buzarbaruah, learned counsel for Respondent No.7. This is an intra-court appeal filed by the writ petitioner of WP(C) No.2005/2013 under Rule 2(3) of Chapter V-A of the Gauhati High Court Rules against the order dated 03/02/2014 passed by the Single Judge in abovementioned writ petition. By the impugned order, the learned Single Judge dismissed the appellant’s writ petition on the ground that the remedy of the writ petitioner lies in taking recourse to filing a civil suit rather than to pursue the writ petition under Article 226/227 of the Constitution of India because it involves disputed questions of fact. The learned Single Judge, therefore, declined to entertain the writ petition on merits and dismissed it on this ground alone. The short question, therefore, which arises for consideration in this appeal is – whether the learned Single Judge was justified in dismissing the writ petition on the ground that it involves disputed question of fact and, therefore, it cannot be probed in a writ petition under Article 226 of the Constitution of India and remedy of writ petitioner lies in filing the suit. With the consent of the parties, we have heard the matter finally today after admitting the appeal and serving notice to other side. Having heard the matter and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the impugned order and allow the parties to approach the District Scrutiny Committee under Section 10 of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 (for short hereinafter called the “Act’) for examining the issue raised in the writ petition by the District Scrutiny Committee. In our considered view, having regard to the nature of controversy which centres around the private parties who are working as teachers in Namargaon High School, Dhubri District and are raising the dispute in relation to their seniority and related matter thereto, the learned Single Judge instead of directing the writ petitioner to take recourse to filing a civil suit should have referred the matter to the “District Scrutiny Committee” constituted under Section 10 of the Act. Indeed, Section 10 (5) of the Act empowers the District Scrutiny Committee to examine the matter of this nature and also invest the Committee the power of a civil court on certain issues. We also notice that the issues involved in the writ petition are capable of being referred to the District Scrutiny Committee for their examination and, therefore, it would be in the interest of all parties concerned that the matter is referred in the first instance to the District Scrutiny Committee to examine and submit the report. Without, therefore, going into the merits and demerits of the controversy, we allow the parties to approach the District Scrutiny Committee under Section 10 of the Act. The parties shall file a certified copy of this order along with their grievances to enable the District Scrutiny Committee to examine their case and return a finding in accordance with law keeping in view the factual matrix and applying the relevant provisions of the Act to the factual matrix. Let the matter be referred to the District Scrutiny Committee by the parties within a period of one month from the date of the order as an outer limit. On such matter being referred/submitted, the Committee shall decide the same within a period of three months from the date of its submission after affording an opportunity to the parties concerned and submit a reasoned report with intimation to the parties concern. The parties would be at liberty to question its legality and correctness in accordance with law in appropriate forum, if need be. The appeal thus succeeds and is hereby allowed in part. The impugned order is set aside with the aforesaid direction to be complied with by the parties. No cost.