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2015 DIGILAW 8 (GAU)

Jakir Hussain Laskar v. State of Assam

2015-01-06

T.VAIPHEI

body2015
JUDGMENT AND ORDER T. Vaiphei, J. - Another dispute concerning the inter-se seniority of school teachers is once again confronting this Court in this writ petition for adjudication. At the outset, it may be noted that the petitioner has abandoned his claim against the respondent No. 8, the issue raised by him in respect of this respondent, therefore, does not survive for consideration. 2. The case of the petitioner is that he was appointed as Persian Assistant Teacher of S.A. Choudhury Model Girls' High School ("the school" for short) by the Managing Committee of the school (SMC) in terms of the appointment letter dated 30-4-2003: he joined the post on 2-5-2003. According to him, due to the resignation of the incumbent Assistant Teacher, the SMC by the order dated 2-8-2003 adjusted him against the said resultant vacancy where after he has been discharging his duties till now to the satisfaction of all concerned. His appointment as Assistant Teacher of the school was approved by the jurisdictional Inspector of Schools by the office order dated 14-11-2005. In the course of his service, the SMC held a general meeting of the school on 28-12-2009 and passed resolution No. 2 for preparing the list of staff of the school and authorised the Headmaster of the school to approach the jurisdictional Inspector of Schools to approve the list so prepared. In this list of staff, the name of the petitioner found a place as Assistant Teacher of the school in Serial no. 9, whereas the name of the respondent No. 7 did not find a place therein as staff of the school. The said staff pattern as prepared by the SMC was approved by the jurisdictional Inspector of Schools vide his order dated 30-3-2011, but the name of the respondent No. 7 did not find any place in that staff pattern and, rightly so, as she was never a staff of the school at that time. 3. In the year 2005, the Education Department introduced a policy decision to extend financial assistance to various pre-provincialized schools from lower primary to college level. Recently by the notification dated 12-1-2011, the Government of Assam modified this policy decision by deciding to pay fixed remuneration to the employees of these categories of venture institutions and directed the head of the institutions including the Headmaster of the school to submit the staff pattern. Recently by the notification dated 12-1-2011, the Government of Assam modified this policy decision by deciding to pay fixed remuneration to the employees of these categories of venture institutions and directed the head of the institutions including the Headmaster of the school to submit the staff pattern. In the wake of this new policy, according to the petitioner, the Headmaster of the school (respondent 6) manipulated the records by preparing a new list of staff of the School dated 6-7-2011 by including the name of respondent 7 as the Assistant Headmistress of the school by falsely indicating her date of joining as 31-12-2005 and by degrading him (the petitioner), who is the senior most Assistant Teacher of the school. In this process, the position of the petitioner was correspondingly reduced to the status of the 5th Assistant Teacher below the respondent No. 8, who consequently became the 4th Assistant Teacher. Again, the respondent No. 6 with reference to the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 ("the Act" for short") submitted the staff pattern of the school dated 19-12-2011 to the Director of Secondary Education, Assam (respondent No. 2) by including the name of the respondent No. 7 as the Assistant Headmistress of the school by indicating her initial date of joining the school as 10-6-2006 in the post of Classical Teacher (Persian). The position of the petitioner was thus reduced to 5th Assistant Teacher below the respondent No. 8, who joined the post with the petitioner on the same day: the petitioner joined at 10 AM while the respondent No. 8 joined later on thereby making him junior to the petitioner. 4. Under the Act, provisions are made for provincialization of fifteen teaching and non-teaching staff of each High School, and a further provision is made for provincialization of only four posts of Assistant Teacher in these categories of schools. Following the inclusion of the respondent No. 7 as Assistant Headmaster thereby depriving one Sajna Begum Barbhuiya, the senior most Assistant Teacher, of the post of Assistant Headmistress and the further inclusion of the respondent No. 8 as the 4th Assistant Teacher, the petitioner is thus reduced to the status of 5th Assistant Teacher. Following the inclusion of the respondent No. 7 as Assistant Headmaster thereby depriving one Sajna Begum Barbhuiya, the senior most Assistant Teacher, of the post of Assistant Headmistress and the further inclusion of the respondent No. 8 as the 4th Assistant Teacher, the petitioner is thus reduced to the status of 5th Assistant Teacher. The net result of this development is that the petitioner has been left out of consideration for provincialization of his service as there are only four authorised posts of Assistant Teacher in this School. This prompted him to lodge a complaint with the Deputy Commissioner and Inspector of Schools, Hailakandi by submitting the representation dated 17-1-2012 against the appointment of the respondent No. 7 in the post of Assistant Headmistress and requested them to take appropriate action against the Headmaster of the school, but without any tangible result. Notwithstanding such complaint, the District Scrutiny Committee headed by the Deputy Commissioner, Hailakandi in a hush-hush manner recommended the provincialization of the teaching and non-teaching staff of the school as proposed by the SMC/Headmaster of the school. The respondent No. 2 thereafter issued the order dated 30-7-2013 provincializing the services of those teaching and non-teaching staff sans the petitioner. In this provincialization order, the name of the respondent No. 7 was included as the Assistant Headmistress of the school by indicating her date of joining as 6-10-2006 while the respondent no. 8 was shown as the 4th Assistant Teacher with his date of joining as 5-2-2006 though his correct date of joining the school is 2-5-2006. Similarly, the said Sajna Begum Barbhuiya, the senior most Assistant Teacher of the school is deprived of the post of Assistant Headmistress of the school and is merely shown as the Assistant Teacher. Due to the inclusion of the said Sajna Begum Barbhuiya as the Ist Assistant Teacher and the respondent No. 8 as the 4th Assistant Teacher of the school, the petitioner is thus excluded from provincialization of his service. Aggrieved by this, this writ petition is now filed by the petitioner for appropriate relief. 5. The writ petition is opposed by the State-respondents as well as the private respondents by filing separate counter-affidavits by each of them. Aggrieved by this, this writ petition is now filed by the petitioner for appropriate relief. 5. The writ petition is opposed by the State-respondents as well as the private respondents by filing separate counter-affidavits by each of them. The respondent authorities deny that any approval was ever given by the Inspector of Schools to the appointment of the petitioner as Assistant Teacher of the School as clarified by the letter dated 7-11-2013 of the same authority. They also deny that the respondent No. 7 is not a staff of the school; she was appointed on 10-6-2006 as Persian Teacher/Assistant Teacher/Assistant Head Mistress which was approved by the Inspector of School, Hailakandi vide the letter dated 29-12-2009. The name of the respondent No. 7 did not figure in the approval list as her name had already been approved by the same authority long before the order dated 29-12-2009. The District Scrutiny Committee, after scrutinising all the records of the entire staff, found that the respondent No. 7 joined on 10-6-2006, and her appointment was approved by the jurisdictional Inspector of Schools vide the order dated 29-12-2009. There is no person by the name of Sofique Uddin Barbhuiya in the staff of the school who can be referred to as the respondent No. 8. On the other hand, the respondent No. 8 (Sofique Uddin Admed Laskar) is senior to the petitioner in age. The school in question is a school for girls, and since the Headmaster is a male, the SMC, considering the interest of girl students, appointed the respondent no. 7 as the Assistant Headmistress of the school. These are the main contentions of the respondent No. 3 while supporting the impugned decision. The affidavits-in-opposition filed by the Deputy Commissioner/Hailakandi District, the respondent No. 2, the respondent No. 4 and the respondent No. 5 are along the lines projected by the respondent No. 3, and need not be reproduced for the sake of avoiding unnecessary repetition. 6. In the affidavit-in-opposition filed by the respondent No. 7, she, while endorsing the stance taken by the remaining respondents, denies that the appointment of the petitioner was ever approved by the Inspector of Schools, Hailakandi: the so-called letter dated 14-11-2005 does not bear the resolution number or date on it. 6. In the affidavit-in-opposition filed by the respondent No. 7, she, while endorsing the stance taken by the remaining respondents, denies that the appointment of the petitioner was ever approved by the Inspector of Schools, Hailakandi: the so-called letter dated 14-11-2005 does not bear the resolution number or date on it. Moreover, on making enquiry about the existence of such letter/order, she found that there is no such letter/order in the Office of the Inspector of Schools, Hailakandi. According to her, she was appointed as Junior Persian Teacher by the order dated 10-6-2006 of the Secretary of the Managing Committee; her appointment got converted into/adjusted against the post of Assistant Teacher vide the Resolution No. 3(a) dated 30-7-2009 of the Managing Committee, which was communicated by the Secretary by the letter dated 31-7-2009. She categorically denies that the Headmaster of the school entered into conspiracy and included her name in the list of the staff by manipulating record and submitted the same before the Director of the Secondary Education, Assam. She admits that the Headmaster had wrongly shown her date of joining the school as 31-12-2005, which should have been shown as 10-6-2006. Her appointment was duly approved by the Inspector of Schools, Hailakandi by the order dated 29-12-2009. These are the main contention of the respondent No. 7. 7. After hearing the learned counsel for the petitioner and the learned counsel appearing for the State-respondents as well as the learned counsel appearing for the private respondents, I find force in the contentions of the learned counsel for the respondent No. 7: the writ petition is not maintainable in the present form. In the first place, the petitioner does not challenge the order dated 30-5-2013 provincializing the service of the respondent No. 7 against the post of Assistant Headmistress of the school. Though the order of provincialization was issued after the writ petition was filed by the petitioner, the petitioner did not bother to amend his writ petition to challenge such provincialization or seek the quashing thereof. Moreover, the service of the respondent No. 7 was provincialized against the post of Assistant Headmistress and not against the post of Assistant Teacher. Though the order of provincialization was issued after the writ petition was filed by the petitioner, the petitioner did not bother to amend his writ petition to challenge such provincialization or seek the quashing thereof. Moreover, the service of the respondent No. 7 was provincialized against the post of Assistant Headmistress and not against the post of Assistant Teacher. In my judgment, the petitioner, who is seeking provincialization of his service against the post of Assistant Teacher, has no locus standi to question the provincialization of the respondent No. 7 against the post of Assistant Headmistress inasmuch the two posts belong to different categories. If at all any challenge is to be made, it should have been made by the respondent No. 8, and not by the respondent No. 7, after all, even if the petitioner succeeds in this writ petition, no benefit will accrue to him as long as the respondent No. 8, who is senior to him, is there to claim consideration of her case for promotion to the post of Assistant Headmistress. It may further be noted that there are four Assistant Teachers, who are senior to the petitioner. 8. In so far as the charge made by the petitioner against the respondent No. 7 that her name was included in the staff pattern of the school dated 6-7-2011 by manipulating the record by the Headmaster of the school is concerned, it must be noted that she was shown appointed as Persian Teacher against a non-sanctioned post on 10-6-2006 vide the order dated 31-7-2009 issued by the Secretary of Managing Committee, and her service came to be converted and continued as regular Assistant Teacher of the school on 31-7-2009, which was approved by the Inspector of Schools, Hailakandi on 29-12-2009. Subsequently, her promotion to the post of Assistant Headmistress was approved by the Inspector of Schools by his order dated 29-12-2009. In the light of allegations and counter-allegations made by the petitioner and the respondent No. 7, both of whom are able to produce some documentary evidence to substantiate their respective claims, this Court has not the means to investigate such factual disputes. The dispute raised by the parties can be decided only by adducing oral and documentary evidence by both the rival parties, for which this Court is ill-equipped. The dispute raised by the parties can be decided only by adducing oral and documentary evidence by both the rival parties, for which this Court is ill-equipped. The jurisdiction of Article 226 of the Constitution can normally be invoked to enforce an established right and not to establish a right. True, there is no absolute bar against invoking Article 226 of the Constitution to establish a right, but when there are serious and complicated question of facts which cannot be easily decided by the materials brought on record by the parties, this discretionary jurisdiction is hardly adequate to decide such a dispute. After all, this is not a case in which it can be said that the dispute can be settled by looking into the terms of their appointment orders or other contemporaneous documents. 9. For the reasons stated in the foregoing, this writ petition is not maintainable, and is, therefore, dismissed, but by directing the parties to bear their respective costs. Interim order, if any, stands vacated.