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2015 DIGILAW 19 (GAU)

Husna Begum Barbhuiya and Others v. State of Assam and Others

2015-01-07

TINLIANTHANG VAIPHEI

body2015
Tinlianthang Vaiphei, J.—In WP(C) No. 5557/10, the petitioner challenges the order dated 9-9-2010 issued by the Director of Elementary Education, Assam (the respondent No. 3 and hereinafter referred to as "DEE") whereby he had directed the Deputy Inspector of Schools, Hailakandi to take steps for reinstating the respondent No. 6 ("the private respondent") as 2nd Assistant Teacher of Mohanpur Padmotal LP School and for extending financial benefits to her. While this writ petition was pending, the service of the petitioner came to be provincialized, which is challenged by the private respondent in WP(C) No. 1264/13. WP(C) No. 1264/13 is, therefore, the offshoot of WP(C) No. 5557/10, and they, being inter-connected, were heard together and are now being disposed of by this common judgment. As prayed for, the learned standing counsel for the Education Department, is allowed to rely on the affidavit-in-opposition filed by the State-respondents in WP(C) No. 1264/13 to counter the case of the petitioner. 2. The case of the petitioner is that Mohanpur Podmotal LP School used to be a venture institution managed and administered by the Managing Committee of the School ("SMC") imparting primary education to educationally backward tea garden students as well students of Mohanpur village in the district of Hailakandi. The School was established in the year 1972. It is further the case of the petitioner in WP(C) No. 5557/10 that the private respondent was appointed as the 2nd Teacher of the School in the year 1992, but when she was in an unauthorized absence from duty for long and was found to be recalcitrant despite repeated warnings by the SMC, her service was terminated by them in terms of the resolution dated 28-12-2004 and was replaced by one Mustt. Rina Begum Laskar temporarily to take classes in the School in the interest of the students pending appointment of a regular teacher. When this lady declined to continue in that post, the SMC passed another resolution in its meeting held on 28-12-2005 deciding to appoint the petitioner as the 2nd Teacher of the School. The Headmaster of the School thereafter issued the order dated 29-12-2005 appointing the petitioner as the 2nd Teacher of the School. 3. It is also the case of the petitioner that just after her appointment, the Government of Assam declared a policy decision to grant financial assistance to venture institutions such as the School. The Headmaster of the School thereafter issued the order dated 29-12-2005 appointing the petitioner as the 2nd Teacher of the School. 3. It is also the case of the petitioner that just after her appointment, the Government of Assam declared a policy decision to grant financial assistance to venture institutions such as the School. On coming to know of the scheme for financial assistance, the private respondent, who was in hibernation all along, had filed WP(C) No. 6010/06 before this Court and claimed herself to be the 2nd Teacher of the School by relying upon the particulars furnished by the Deputy Inspector of Schools through manipulation and prayed for quashing the appointment of the petitioner and to allow her to attend her duties in the School. This Court by the order dated 15-12-2009 directed the DEE to decide the dispute between the petitioner and the private respondent viz. whether the SMC issued notice to the private respondent on her absence from duty and whether the meeting of the SMC was actually held or not on the dates mentioned in the judgment. This Court further directed that if notice was not actually issued over her alleged absence from school and she was rather prevented by the petitioner from attending the School, necessary action was to be taken by the DEE and the SMC for her reinstatement to service within two months. The enquiry was conducted by the School Inspector, Hailakandi Education Block, who submitted his report on 13-7-2010. As per the enquiry report, the private respondent was terminated from service in accordance with law; that notices were properly served upon her, which was duly acknowledged by her and that she was unauthorisedly absent from School from January, 2004 and that the proceedings of the meeting held were real. 4. The DEE, however, apparently disagreed with the enquiry report and held that the SMC was not constituted in accordance with the Government guidelines; that members of the SMC were not residing within the village, that the attendance register was found to be manipulated; that no show cause was issued to the private respondent by the SMC prior to her termination and that she had been arbitrarily removed by the Headmaster and the SMC. On the basis of such findings, the DEE passed the impugned order dated 9-9-2010 directing the reinstatement of the private respondent to her original post for extending financial assistance to her and for dissolving the SMC, which should be re-constituted in accordance with the extant guidelines. This Court, while issuing notice to the respondents, passed an interim order on 4-10-2010 suspending the operation of the impugned order dated 9-9-2010. However, during the pendency of the said writ petition, the service of the petitioner, as already noticed, was provincialized by the DEE as evident from the list of provincialized Venture LP Schools published in the website in the first week of March, 2013. It is the contention of the private respondent that the petitioner is the wife of the President of SMC and that the President of the SMC, which was in any case illegally constituted, in collusion with the Headmaster of the School removed the private respondent from her service merely to accommodate the petitioner at her expense. Aggrieved by this, the second writ petition [WP(C) No. 1264/13] is filed by the private respondent challenging the provincialization of the petitioner. 5. The affidavits-in-opposition filed by the State-respondents through the DEE in WP(C) No. 5557/10 as well as the private respondent have been perused by me. In his affidavit, the DEE avers that the SMC of the School appointed one Nizam Uddin Laskar as Assistant Teacher of the School on 2-7-1986 and served there till 9-7-1992 when he resigned from the post. The SMC thereafter appointed the private respondent as the Assistant Teacher, and she joined the post on 9-7-2002. The SMC, however, terminated her service on 25-11-2004 whereafter one Smt. Rina Begum was appointed to replace her. The said Rina Begum also resigned from the post on 26-10-2006. The petitioner was thereafter appointed as the Assistant Teacher of the School on 20-12-2005. According to DEE, the report of the BEEO, Hailakandi revealed that the petitioner was appointed as the Assistant Teacher of the School on 20-12-2005 and that all the changes in the staff pattern of the School were duly approved by the SMC. The DEE also avers that during inspections of the School by the departmental authorities, the Head Teacher of the School and the petitioner were found present and working in the School. The DEE also avers that during inspections of the School by the departmental authorities, the Head Teacher of the School and the petitioner were found present and working in the School. Having said that, the DEE, however, avers that the report of the BEEO revealed that the termination of the private respondent was not as per the procedure and the private respondent was not issued show cause notice prior to her termination from service and that the private respondent produced separate attendance register which was maintained on the ground that she had not received any show cause as well as the termination order. 6. It is the further case of the DEE that in compliance with the order dated 15-12-2009 of this Court, he made enquiry through the Deputy Director of Elementary Education and thereafter directed the Deputy Inspector of Schools, Hailakandi to ensure reinstatement of the private respondent to her original post with immediate effect and extend the benefit of financial assistance to her. But this order was subsequently suspended by this Court. The affidavit-in-opposition filed by the Deputy Inspector of Schools, Hailakandi is to the same effect and need not be referred to for the sake of brevity. 7. The private respondent in her affidavit admits that she was appointed as 2nd Teacher of the School on 9-7-1992. She denies that any meeting took place on 25-3-2004 or that any notice was served upon her. According to her, the petitioner married the said Nizamuddin Laskar, who was the President of the SMC, on 21-9-2006, and after their marriage, the spouses started to prevent her from attending the School and showed the name of the petitioner as the 2nd Teacher of the School. The SMC, the President of the SMC and the Headmaster of the School joined hand in manipulating the records and terminated her service in order to appoint the petitioner against the post held by her. It is averred by the answering respondent that even though one Mustt. Rina Begum was appointed as the 2nd Assistant Teacher, she was also not allowed to continue in that post with the ulterior motive of accommodating the petitioner in that post. It is averred by the answering respondent that even though one Mustt. Rina Begum was appointed as the 2nd Assistant Teacher, she was also not allowed to continue in that post with the ulterior motive of accommodating the petitioner in that post. As the School is a venture institution, the President as well as the Headmaster of the School came to know that a policy decision had been taken by the Government of Assam to grant financial assistance to such institutions including the School, and illegally terminated the service of the answering respondent in order to appoint the petitioner, who was none other than the wife of the President of SMC. The rest of the affidavit are in pari materia with the averments of the DEE and need not be dealt with to avoid unnecessary repetition. 8. The arguments advanced by Mr. A.R. Bhuyan, the learned counsel for the petitioner, Mr. M.H. Rajbarbhuiyan, the learned counsel for the private respondent and Mr. N. Sarma, the learned standing counsel for the Education (Elementary) Department, Assam to substantiate the cases of the parties represented by each of them have been given my anxious consideration. The submission of the learned counsel for the petitioner is that on the admitted facts on record that the service of the private respondent as Assistant Teacher of the School was terminated by the SMC in 2004; that she was succeeded by one Smt. Rina Begum in that post, who also did not continue for long whereafter the petitioner was appointed as the Assistant Teacher on 20-10-2005, it becomes clear that the DEE was wrong and committed illegality in issuing the first impugned order dated 9-9-2010 directing the reinstatement of the private respondent to the post of Assistant Teacher of the School and extending the benefit of financial assistance to her. There is no question of reinstating the private respondent to the post of Assistant Teacher or of extending the financial benefits to her after provincialization of the school does not, and cannot, arise. He, therefore, strenuously urges this Court to quash the impugned order dated 9-9-2010 and confirm the provincialization of the petitioner to the post of the 2nd Assistant Teacher of the school. 9. Mr. He, therefore, strenuously urges this Court to quash the impugned order dated 9-9-2010 and confirm the provincialization of the petitioner to the post of the 2nd Assistant Teacher of the school. 9. Mr. N. Sarma, the learned standing counsel for Education (Elementary) Department, Assam, submits that the impugned order dated 9-9-2010 had been passed by the DEE, in compliance with the order of this Court, after examining the materials available on record, and does not suffer from any infirmity calling for the interference of this Court. He also contends that the order provincializing the service of the petitioner has been passed by the DEE after this Court passed the interim order dated 4-10-2010 staying the operation of the impugned order dated 9-9-2010. It is, however, the submission of Mr. M.H. Rajbarbhuiyan, the learned counsel for the private respondent, that the findings recorded by the DEE while deciding the dispute in compliance with the order of this Court are unassailable and based on record. He contends that the service of the private respondent had been terminated by the SMC, which was illegally constituted, in connivance with the Headmaster of the school to accommodate the petitioner, who is none other than the wife of the President of the SMC. He further argues that the SMC was not constituted as per the notification dated 17-6-2006 Education (Elementary) Department, and no approval was ever accorded by the concerned Deputy Inspector of Schools: the members of the SMC are from outside the village, which is in violation of the Government guidelines. He submits that the order provincializing the service of the petitioner is illegal, arbitrary, mala fide and discriminatory and is, therefore, liable to be quashed. 10. I have carefully gone through the pleadings of the parties as well as the materials on record. I have also given my thoughtful consideration to the various submissions advanced by the learned counsel appearing for the rival parties. Before proceeding further, it may be useful to refer to the operative parts of the order dated 15-12-2009 of this Court in WP(C) No. 6010 of 2006 on the basis whereof the first impugned order was passed by the DEE: "9. Before proceeding further, it may be useful to refer to the operative parts of the order dated 15-12-2009 of this Court in WP(C) No. 6010 of 2006 on the basis whereof the first impugned order was passed by the DEE: "9. Therefore, there are serious disputed question of facts as to whether the respondent No. 4 had really issued the show cause notice to the petitioner for her alleged absence from duties before passing the said resolutions of the School Management Committee and that the resolutions of the School Management Committee were genuine or not and also that the petitioner had really received the alleged show cause notices issued to her or not. This Court in the writ proceeding is not equipped to decide the above disputed question of facts. 10. Hence, this court is of the considered view that the Director, Elementary Education, Govt. of Assam has to make an enquiry for deciding the disputed question of facts indicated above, more particularly, as to whether the respondent No. 4 had issued the show cause notices to the petitioner for her alleged absence from school duties and as to whether the petitioner had received the show cause notices and also as to whether the meetings of the School Management Committee had really held or not on the dates mentioned above. Accordingly, the Director, Elementary Education is directed to do so. In case, after such enquiry, it is found that no proper show cause notice was issued to the petitioner for her alleged absence from school duties and also that the petitioner did not absent herself from school duties but had been prevented by the private respondents, necessary steps should be taken by the Director, Elementary Education, Govt. of Assam and also the School Management Committee, Mohanpur Padomtal LP School to reinstate the petitioner in service. It is also made clear that the Director, Elementary Education should complete the entire exercise within two months from the date of receipt of the certified copy of the judgment and order." 11. of Assam and also the School Management Committee, Mohanpur Padomtal LP School to reinstate the petitioner in service. It is also made clear that the Director, Elementary Education should complete the entire exercise within two months from the date of receipt of the certified copy of the judgment and order." 11. From the above extracts, it is seen that the enquiry to be conducted by the DEE was to confine to (i) whether show cause notice was issued to the petitioner (the private respondent herein) and if so, whether the notice was actually received by her and (ii) whether the meeting of the SMC was actually held on the dates mentioned therein or not. The DEE apparently took into account the enquiry report of the Deputy Director of Elementary Education and recorded the following findings: "(a) The SMC was not constituted as per The Education (Ele) Department Notification dated 17-6-2006 and was never accorded approval by the Deputy Inspector of Schools. (c) The members of the SMC were from outside the village, which was in violation of the Government guidelines. (b) Attendance Register of 2005 was produced, which appeared to have been manipulated; the proceeding book and attendance register prior to 2003 could not be produced by the Headmaster by stating that the same had been damaged due to flood. (c) No show cause notice was served upon the petitioner (the private respondent herein) prior to her termination from service in 2004: she appeared to have been removed by the Headmaster and the President of SMC to accommodate the respondent No. 5 (the petitioner herein), who was the wife of the President of the SMC." 12. At the outset, I am constrained to observe that findings noted above in (a) and (b) recorded by the DEE are not the subject-matters of enquiry directed to be conducted by him: that has never been the grievances projected by the private respondent in her writ petition. The DEE was not expected to enlarge, and should not have enlarged, the scope of enquiry if he was conducting the enquiry in compliance with the directions of this Court, that too, without giving an opportunity of hearing to the SMC, which appears to be the case here. Therefore, such findings can be ignored by this Court. The DEE was not expected to enlarge, and should not have enlarged, the scope of enquiry if he was conducting the enquiry in compliance with the directions of this Court, that too, without giving an opportunity of hearing to the SMC, which appears to be the case here. Therefore, such findings can be ignored by this Court. In so far as findings (c) and (d) are concerned, the conclusions of the DEE were apparently based on the report of the Dy. DEE, Assam, but no such report is available or produced by the State-respondents. However, there is a report dated 13-10-2010 submitted by the S.I. of Schools, Hailakandi Education Block to the Block Elementary Education Officer, Hailakandi wherein he had recorded the findings that notice was issued upon the private respondent; that another notice was served upon her through the Head Teacher-cum-Member Secretary on 23-5-2004 as a reminder; that as per teacher attendance register as submitted by the Head Teacher, she was found absent since January, 2004 and that as per the proceeding of the SMC dated 25-3-2004 and 20-5-2004, the proceeding of the meeting was real. He, however, recorded therein that the private respondent denied receiving notice relating to her absence from the Head Teacher-cum-Member Secretary. No other enquiry report is found on record. 13. However, it is interesting to note that the private respondent in her affidavit dated 24-7-14 enclosed therewith a copy of the enquiry report dated 29-10-2010, which negated the case of the petitioner and supported the case of the private respondent. But then, this document did not form a part of the material used by the DEE to pass the impugned order dated 9-9-2010. It is a well-settled principle of law that the validity of the order passed by a statutory authority must be judged by the reasons mentioned therein and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.Ä See Chandra Singh Vs. State of Rajasthan and Another, and Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . In the light of the foregoing discussions, it is difficult to find any evidence to support the conclusion of the DEE that no notice was actually served upon or received by the private respondent prior to termination of her service. The Chief Election Commissioner, New Delhi and Others, . In the light of the foregoing discussions, it is difficult to find any evidence to support the conclusion of the DEE that no notice was actually served upon or received by the private respondent prior to termination of her service. On the contrary, the impugned order dated 9-9-2010 suffers from the vice of arbitrariness and perversity and cannot be sustained in law. In view of that, the DEE is correct in issuing the order dated 15-5-2013 provincializing the service of the petitioner as the Assistant Teacher of Mohanpur Padmotal VL School, which need not be interfered with by this Court. 14. The result of the foregoing discussion is that WP(C) No. 5557 of 2010 succeeds. Consequently, there is no merit in WP(C) No. 1264 of 2013, which is hereby dismissed. The parties in the two cases are, however, directed to bear their respective costs.