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2015 DIGILAW 473 (GAU)

Fajal Uddin v. State of Assam

2015-04-23

TINLIANTHANG VAIPHEI

body2015
JUDGMENT : Tinlianthang Vaiphei, J. 1. This batch of writ petitions involving a common question of fact and of law, having been heard together, are now being disposed of by this common judgment. 2. WP(C) No. 5757 of 2012 is filed by Md. Fazal Uddin (who shall hereafter be referred to as "the petitioner" in all the writ petitions) for substituting the name of Md. Dildar Hussain (who shall hereafter be referred to as "the private respondent in the three writ petitions) by his name as the 3rd Assistant Teacher of Sutergaon Public High School ("the school" for short) in the list of teachers prepared and submitted for provincialization of their services. His case is that he has been working as an Assistant Teacher of the school since 3-11-2007. As the employees of the school became eligible for provincialization under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011, the Headmistress of the school submitted the proposal/detailed particulars of the teaching and non-teaching staff of the school to the Inspector of Schools/Member Secretary of the District Scrutiny Committee for the provincialization. According to the petitioner, the Headmistress of the school, while submitting those particulars, had wrongly mentioned the name of the private respondent, who is junior to him, as the 3rd Assistant Teacher: he was appointed as Assistant Teacher of the school on 10-12-2007 and was ranked as 4th Assistant Teacher. Under the rules, there is a provision for taking only three Assistant Teachers for provincialization in order of seniority. On the protest made by him, the Headmistress of the school submitted a fresh proposal on 5-10-2012 by correcting the position of the petitioner as the 3rd Assistant Teacher in place of the private respondent and by showing his date of joining the as 3-11-2007. The name of the private respondent did not find a place in this new proposal. He also duly approached the jurisdictional Inspector of Schools and Deputy Commissioner highlighting the above anomaly and requesting them to assign him the correct seniority position in the category of Assistant Teachers. 3. In the meantime, however, the respondent authorities deleted the name of the petitioner and entered the name of the private respondent, who, according to him, is junior to him, as the 3rd Assistant Teacher. When his representation to the respondent authorities did not evoke positive response, this writ petition is filed by him. 3. In the meantime, however, the respondent authorities deleted the name of the petitioner and entered the name of the private respondent, who, according to him, is junior to him, as the 3rd Assistant Teacher. When his representation to the respondent authorities did not evoke positive response, this writ petition is filed by him. This Court, while entertaining the writ petition, passed an interim order dated 5-12-2012 directing that provincialization benefits for the teachers of Sutargaon Public High School shall not be given by ignoring the seniority particulars of the teachers, as was reflected by the District Scrutiny Committee on 5-10-2012. The petitioner thereafter submitted a copy of the interim order before the Director of Elementary Education, Assam (respondent 2). In the meantime, the Sutargaon Public High School and the teaching staff of the school filed W.P.(C) No. 6292 of 2012 before this Court against the respondent authorities for halting the process of provincialization of the other employees of the school due to the pendency of court case between the petitioner and the private respondent. This Court by the order dated 20-12-2012 observed that the pendency of the writ petition should not bar the respondent authorities from considering the provincialization of the eligible teachers of the school and at the same-time directed that provincialization of the post of the 3rd Assistant Teacher should be kept in abeyance. The respondent No. 2 complied with the interim order and observed that the 3rd post of Assistant Teacher should not be allotted to the school until final disposal of the writ petition. 4. It may be noted that notwithstanding the aforesaid observations by this Court, the respondent No. 2 proceeded to publish the list of teaching and non-teaching staff of the school including the name of the private respondent, who are eligible for the provincialization by showing the name of the petitioner as an excess teacher. The petitioner thereupon filed Contempt Petition (Civil) No. 79/2013 against the respondent No. 2 and others. However, the respondent No. 2 issued the impugned order declaring that the private respondent was senior to the petitioner, was eligible for the post of 3rd Assistant Teacher of the school and declared the petitioner as an excess teacher and that the service of the petitioner could not be provincialized. However, the respondent No. 2 issued the impugned order declaring that the private respondent was senior to the petitioner, was eligible for the post of 3rd Assistant Teacher of the school and declared the petitioner as an excess teacher and that the service of the petitioner could not be provincialized. This was followed by another order on 19-9-2013 provincializing the services of teaching and non-teaching staff of the school including the service of the private respondent as the 3rd Assistant Teacher of the school. Aggrieved by this, the petitioner filed another writ petition before this Court being WP(C) No. 7469 of 2013. This Court by the interim order dated 20-12-2013 directed that till the next returnable date, the status quo as on that day in respect of the orders dated 10-9-2013 and 18-9-2013 be maintained. In purported compliance with this interim order, the respondent No. 2 issued the dated 12-3-2014 staying the order dated 10-9-2013 and the provincialization order dated 18-9-2013 issued in favour of the private respondent till final disposal of the case. It is now the turn of the private respondent to file the next writ petition being WP(C) No. 2084 of 2014 challenging the legality of the order dated 12-3-2014 issued by the respondent No. 2. This Court while entertaining WP(C) No. 2084/14 passed the interim order dated 11-4-2014 staying the dated 12-3-2014 issued by the respondent No. 2. 5. Heard Mr. K.K. Mahanta, the leaned senior counsel for the petitioner and Mr. D. Das, the learned senior counsel for the private respondent [the writ petitioner in WP(C) No. 2084/14]. The sole question for consideration now is whether the petitioner is senior to the private respondent. What prompted the provincialization of the service of the private respondent is the order dated 10-9-2013 issued by the respondent No. 2, which, in turn, had been done on the basis of the order dated 5-12-2012 passed by this Court in WP(C) No. 5757 of 2012 holding that the provincialization benefits for the teachers of Sutargaon Public High School should not be given by ignoring the seniority particulars of teachers. The relevant portions of the order dated 10-9-2013 may be reproduced below: "....Mrs. Faruza Khatun (the Headmistress of the school) in her statement stated that Md. Fazul Uddin was appointed on 2-11-2007 and he has been working in the same school since 03-11-2007. The relevant portions of the order dated 10-9-2013 may be reproduced below: "....Mrs. Faruza Khatun (the Headmistress of the school) in her statement stated that Md. Fazul Uddin was appointed on 2-11-2007 and he has been working in the same school since 03-11-2007. But in the staff pattern the Headmistress shoed the date of joining of Md. Fazul Uddin as 01-01-2008. This was done on the insistence of the present Inspector of Schools. Md. Abdul Salam, son of Yead Ali is present today, his statement is noted. He is the President of the Managing Committee of the school for the last six years. He stated that Md. Fazal Uddin was appointed as sectional teacher and he joined on 01-01-2008. I have examined the Proceeding Book. In the proceeding book the Managing Committee on 02-03-2008 took a decision that the date of joining in respect of two teachers was submitted wrongly and it had to be cancelled accordingly by proposal number one at page 45 of the Book, the Managing Committee resolved that the date of joining of Md. Fajal Uddin shown as 03-11-2007 be corrected and his date of joining should be shown from 01-01-2008. The photo copy of the proceeding book has been kept in file for record. From the statement of the President of the Managing Committee, it is clear that Md. Fajal Uddin joined on 01-01-2006 and Md. Dildar Hussain joined on 09-012-2007. Therefore, Md. Dildar Hussain is eligible as third Assistant Teacher in the two class High School. Md. Fajal Uddin, with date of joining 01-01-2008 will be excess teacher whose services cannot be provincialized. With this I come to conclusion that Md. Dildar Hussain is eligible and Md. Fajal uddin is not eligible....." 6. The question is whether the aforesaid conclusion of the respondent No. 2 is based on materials. The settled law is that if there is some evidence to support the conclusion of the decision-making authority, the conclusion drawn by him cannot be interfered with by a writ court. This then takes me to the various documents produced by the parties. The resolution bearing No. 3 of the Executive Committee of the school held on 2-11-2007 shows that the private respondent was appointed as Assistant Teacher with effect from 10-10-2007 against the vacancy caused by the resignation of Md. Rafikul Islam as recommended by the Teacher Selection Committee. This then takes me to the various documents produced by the parties. The resolution bearing No. 3 of the Executive Committee of the school held on 2-11-2007 shows that the private respondent was appointed as Assistant Teacher with effect from 10-10-2007 against the vacancy caused by the resignation of Md. Rafikul Islam as recommended by the Teacher Selection Committee. By Resolution No. 7 of the same meeting, it is shown that the petitioner was appointed as Assistant Teacher with effect from 5-10-2007 against Section C of Class VIII of the School as recommended by the Teacher Selection Committee. The resolution in respect of the private respondent was carried out by the order dated 2-11-2007 issued by the Headmistress of the School with his date of appointment being made effective from 10-12-2007. Interestingly, the resolution of the same meeting with respect to the petitioner was carried out by the order dated 1-12-2008 by making it effective from 1-12-2008. By Annexure-5, it is projected that the petitioner joined the post of Assistant Teacher (Arts) on 10-12-2008. His appointment was provisionally approved by the jurisdictional Inspector of Schools on 4-3-2009. In the list of the teaching staff prepared by the Headmaster of the School dated 17-12-2011, the name of the petitioner appeared above the private respondent with his date of entry into service being entered as 3-11-2007 as against 10-12-2007 for the private respondent. However, in the particulars of the list of eligible employees of 2 Class teachers High Schools for provincialization prepared by the District Scrutiny Committee on 5-10-2012, the name of the petitioner was included but the name of the private respondent was excluded. This prompted the private respondent to file WP(C) No. 5757 of 2012 before this Court, which, as noticed earlier, by the order dated 5-12-2012 issued the said interim order. The respondent No. 2 thereafter issued the said order dated 10-9-2013 holding that the private respondent is senior to the petitioner. The District Scrutiny Committee thereupon published the revised list of eligible employees for the provincialization by placing the private respondent above the petitioner (Md. Fajal Uddin) which eventually resulted in the provincialization of the service of the private respondent. 7. It may however, be noted that Annexure-4 to the affidavit-in-opposition will show that the appointment of the petitioner as Assistant Teacher (Arts) of the school was provisionally approved by the Inspector of Schools on 4-3-2009. Fajal Uddin) which eventually resulted in the provincialization of the service of the private respondent. 7. It may however, be noted that Annexure-4 to the affidavit-in-opposition will show that the appointment of the petitioner as Assistant Teacher (Arts) of the school was provisionally approved by the Inspector of Schools on 4-3-2009. In the particulars of eligible employees for provincialization submitted on 5-10-2012 prepared by the District Scrutiny Committee, the name of the petitioner is included as the Assistant Teacher of the school with his date of joining as 3-11-2007. As for the subsequent decision in the order dated 10-9-2013 holding the private respondent to be senior to the petitioner is purportedly based on the statement of the Headmistress of the school, the President of the Managing Committee of the school and the subsequent resolution dated 2-3-2008 correcting the date of joining of the petitioner as 1-1-2008 instead of 3-11-2007. At this stage, it may be noticed that the Headmistress of the school in her letter dated 25-1-2013 addressed to the respondent No. 2 (Annexure-17) alleged that the petitioner joined the post on 3-11-2007 whereas the private respondent joined the post on 10-12-2007; that the name of the petitioner was entered as the 3rd post of Arts Teacher after scrutinizing the proceeding book, the appointment letter and the joining report of the school as submitted to the Office of the Inspector of Schools on 5-10-2012, "[B]ut the Inspector of Schools directed me over mobile phone to insert the name of Dildar Hussain (private respondent herein) in the 3rd post of Assistant Teacher by doing forgery. He even instructed me to manipulate the proceeding book and to make junior as senior. In this regard, the Inspector of Schools gave me a written instruction on 30-2013 (sic) to correct the proceeding book by manipulating the old proceeding book of the school. .... Finding no other way I make the senior as junior." 8. Though the Inspector of Schools is made a party respondent in all the three writ petitions, he never denies such allegations made against him by filing an affidavit. Furthermore, the Annexure-2 shows that the petitioner was appointed as Assistant Arts Teacher on 2-11-2007. He joined the post on 3-11-2007. Finding no other way I make the senior as junior." 8. Though the Inspector of Schools is made a party respondent in all the three writ petitions, he never denies such allegations made against him by filing an affidavit. Furthermore, the Annexure-2 shows that the petitioner was appointed as Assistant Arts Teacher on 2-11-2007. He joined the post on 3-11-2007. The contention of the private respondent that in terms of the order dated 1-12-2008, the petitioner was appointed pursuant to the resolution No. 7 of the Managing Committee's Meeting dated 2-11-2007 with effect from 1-12-2008 is quite irrational inasmuch as an appointment could not have been made only to be effective after one year or more. On the other hand, the following facts, namely, (1) the petitioner was appointed by the Managing Committee in their resolution dated 2-11-2007 vide Resolution No. 7, (2) his appointment was provisionally approved by the Inspector of Schools vide the order dated 4-3-2009; that his name was initially included in the particulars of eligible employee for provincialization prepared by the Headmistress on 5-10-2012, have substantially, if not fully, corroborated the allegations of the Headmistress of the school in the said letter dated 25-1-2013 that she was forced to change the proceeding book and made the private respondent senior to the petitioner. However, in the case of the private respondent, his contention that his appointment was approved by the Inspector of Schools vide the order dated 4-3-2009 is difficult to believe for the simple reason that there is no teacher by name of Md. Abadur Rahman, who was appointed by the Managing Committee of the school in terms of the said resolution No. 3 and whose appointment was said to be approved therein along with the name of the private respondent. No unimpeachable document could be produced by the private respondent to show that his appointment was ever approved by the Inspector of Schools. Under the circumstances, the impugned decisions of the respondent No. 2 making the private respondent senior to the petitioner, of declaring the petitioner as an excess teacher and of the consequential provincialization of the service of the private respondent, suffer from the vice of arbitrariness, non-application of mind and cannot, therefore, be sustained in law. 9. The result of the foregoing discussion is that WP(C) No. 7496 of 2012 is allowed. 9. The result of the foregoing discussion is that WP(C) No. 7496 of 2012 is allowed. The impugned order dated 10-9-2013 issued by the respondent No. 2 declaring the private respondent (Md. Dildar Hussain) senior to the petitioner (Md. Fajal Uddin) is hereby quashed. Similarly, the impugned order dated 18-9-2013 provincializing the service of the private respondent as the 3rd Assistant Teacher of the school be, and is quashed. The respondent No. 2 shall now consider the petitioner for provincialization of his service against the post of the 3rd Assistant Teacher of the school on the basis of the original proposal dated 5-10-2012 submitted by the District Scrutiny Committee, Nagaon district in place of the private respondent. The entire exercise shall be completed within a period of one month from the date of receipt of this judgment. Consequently, WP(C) No. 2084 of 2014 filed by the private respondent (Md. Dildar Hussain) stands dismissed. WP(C) No. 5757 of 2012 does not survive for consideration, and is hereby dismissed as infructuous. The parties are, however, directed to bear their respective costs.