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2015 DIGILAW 194 (GAU)

Monisha Nath Laskar v. State of Assam

2015-02-18

MANOJIT BHUYAN

body2015
JUDGMENT AND ORDER Manojit Bhuyan, J. Heard Mr. I.H. Barbhuyan and Dr.B.Ahmed, learned counsel for the petitioner. Also heard Mr.M.K.Choudhury, learned senior counsel assisted by Mr.M.H. Rajbarbhuyan, learned counsel for the respondents no.6 and 7 and Mr.U.K.Goswami, learned counsel appearing for the State Respondents. At the outset it be mentioned that in terms of this Court's order dated 13.02.2015, the petitioner has filed the necessary affidavit. The challenge made in this writ petition is with regard to the order dated 8.12.2014 passed by the District Level Scrutiny Committee, Hailakandi as well as the order dated 30.1.2015 passed by the Director of Higher Education, Assam. The sum and substance of both the impugned orders is with regard to seniority between the petitioner on the one hand and respondents no.6 and 7 on the other and the said exercise was initiated pursuant to direction of this Court in WP(C) No.2792/2013. The said impugned orders, makes mention that at the time of initial appointment on 26.2.1992 the petitioner had qualification of Pre-university pass. The respondent no.6 i.e. Sri Jyotirmoy Das was a graduate on the date of his appointment on 21.4.1997. Similarly the respondent no.7, Sri N.Monoj Kumar Singha was also a graduate on the date of his appointment on 22.4.1997. On the basis of the respective qualification it was held that the respondent no.6 is senior most among the three, with respondent no.7 following him and thereafter the petitioner. The seniority list of Assistant Teacher prepared by the Headmaster of the school was interfered with and in place of the petitioner the services of Sri Jyotirmoy Das was provincialised as the fourth Assistant Teacher in G.S.Memorial High School, Hailakandi w.e.f.1.1.2013. The earlier order of provincialisation in favour of the petitioner issued on 30.5.2013 was accordingly withdrawn and she was also discharged from the school. By the impugned order the Inspector of Schools, Hailakandi was also directed to take steps to recover the financial benefits enjoyed by the petitioner due to wrong provincialisation. 2. The earlier order of provincialisation in favour of the petitioner issued on 30.5.2013 was accordingly withdrawn and she was also discharged from the school. By the impugned order the Inspector of Schools, Hailakandi was also directed to take steps to recover the financial benefits enjoyed by the petitioner due to wrong provincialisation. 2. The said two impugned orders are put to challenge on the primary ground that there was non-application of mind on the part of the respondent-authorities, inasmuch as, the provision of Section 4(3) of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 read with the extant circular dated 3.8.1981 was not looked into as according to the petitioner, considering the fact that he had obtained graduation in the year 2001. The said provision of law as well as the circular ought to have been considered at the time of issuance of the impugned orders. 3. Mr.M.K.Choudhury, learned senior counsel submits that until this date there is no order indicating up gradation of the petitioner from the level of intermediate to graduate scale. The notification dated 30.12.93 as well as the order of the Inspector of Schools dated 27.8.2004, relied upon by the petitioner, are wholly misplaced and do not come to the aid of the petitioner to claim that his up gradation to the graduate level has taken effect from 16.2.1992 i.e. the date when the Managing Committee had resolved to appoint the petitioner to the school in question. Referring to rule 23(5) of the Assam Aided Higher Secondary, High and Middle English Schools Management Rules, 1976, Mr. M.K.Choudhury, learned senior counsel submits that going by the provisions, even the initial appointment of the petitioner is bad, in as much as, such appointment was made without prior approval of the Inspector of Schools. At this stage this Court is of the view that it would not be in the fitness of things to now turn back the clock to the year 1992 and say that the initial appointment of the petitioner was bad. Mr. M.K.Choudhury, learned senior counsel relies upon the decision in M.Ramachandran v. Govind Ballabh and others, reported in (1999) 8 SCC 592 and referring to paragraph 12 thereof submits that although length of service is relevant for determining seniority, such determination has to be made by referring to the class, category and grade to which the parties were holding at the relevant time. Reliance is also placed upon to the decision in Challajaya Bhaskar and others v. Thungathurthi Surender and others, reported in (2010) 13 SCC 348 to say that the doctrine of eclipse would apply upto the period when the petitioner did not obtain the requisite qualification i.e. graduation degree and as a corollary the said period prior to his obtaining graduation cannot be counted. Lastly, Mr. Choudhury, learned senior counsel referred to Section 4(3) of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 to say that provincialisation is subject to acquisition of prescribed qualification. 4. I have given my anxious consideration to the case in hand. This Court considers that the fate of the writ petition squarely depends upon the provisions under Sub-section (3) of Section 4 of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. For ready reference, said sub-section (3) is extracted hereunder: "The services of a teaching or non-teaching employee in a Venture Educational Institution upto higher secondary level shall be considered for provincialisation, only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment. In case of employees of a Degree College, they must have acquired such requisite educational as well as professional qualification as may be determined by the University Grants Commission form time to time. Provided that if an employee is required to acquire any prescribed academic or professional qualifications, services of such employee may be considered for provincialisation if otherwise eligible, but in such case the provincialisation would be subject to acquisition of such prescribed qualifications within a period of five years from the date of coming into force of this Act, and during this intervening period, he may continue to work under the existing terms and conditions under which he was working, until his services are porincialised. In case of his failure to acquire the required academic or professional qualifications within the stipulated period, his services hall stand terminated with effect from the date of expiry of stipulated period of five years." 5. There is no manner of doubt that at the time of initial appointment of the petitioner to the G.S.Memorial High School he had the qualification to be appointed as Assistant Teacher under the then relevant Rules. There is no manner of doubt that at the time of initial appointment of the petitioner to the G.S.Memorial High School he had the qualification to be appointed as Assistant Teacher under the then relevant Rules. A bare reading of Section 4(3) of the Act of 2011 now makes it obligatory on the part of the respondents to have considered the case of the petitioner for provincialisation instead of being thrown out of consideration. There is also no manner of doubt that by the time the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 came into force, the petitioner had acquired the requisite qualification to be considered for provincialisation. In that view of the matter, the petitioner ought to have been also considered for provincialisation. What remains is the question of seniority between the petitioner on one side and respondents no. 6 and 7 on the other side. For a just resolution, the respondent-authorities ought to have also looked into the Circular of 3.8.1981, which also finds extracted in the case reported in 2002 (1) GLT page 76. 6. In view of the above, this writ petition is disposed of with direction to the respondent no.2 to re-visit the grievances of the petitioner vis-a-vis the case of respondent no.6 and to pass appropriate order in the light of the provisions under Section 4(3) of the Act of 2011 and the Circular dated 3.8.1981.The exercise as required, would be undertaken by the respondent no.2 at the earliest, preferably within a period of four weeks from the date of receipt of the certified copy of this order. Petitioner shall supply a copy of this order to the respondent no.2 along with a copy of the Circular dated 3.8.1981. Thereupon, the respondent no.2 shall inform the parties as to the date of hearing and shall afford opportunity of hearing to both the parties before passing the final order as required in terms of the above. No costs.