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2015 DIGILAW 849 (GAU)

Syed Saidul Islam v. State of Assam

2015-07-15

TINLIANTHANG VAIPHEI

body2015
JUDGMENT : Tinlianthang Vaiphei, J. 1. Aggrieved by the order dated 18.6.2013 issued by the Director of Education (Secondary) Department, Assam (respondent 2) provincializing the service of the respondent No. 9 as Assistant Teacher (Science) of Moranjana Anchalik High Madrassa, Moranjana, Rangia, the petitioner is filing this writ petition to quash the same. The facts leading to the filing of the writ petition may be briefly noticed at the outset. The petitioner is a graduate in Science having a combination of Botany, Zoology and Chemistry as his subjects. He was appointed as Assistant Teacher of Moranjana Anchalik High Madrassa by the order dated 29.8.1996 issued by the Secretary of the Managing Committee of the Madrassa and joined the post on 2.9.1996. There is no dispute that the respondent No. 10 is the senior-most science teacher of the school while the petitioner is the second senior-most science teacher of the Madrassa. It is the allegation of the petitioner that the respondent No. 9 joined the Madrassa as Assistant Teacher of Science only on 30.6.2011 and that he never saw the respondent No. 9 discharging the duties of Assistant Teacher of Science prior to 30.6.2011. It is the further case of the petitioner that the respondent No. 2 on 12.4.2013 published in the official website the names of employees of the Madrass eligible for provincialization of their services under Section 4(1) of the Assam Venture Institutions (Provincialization of Services) Act, 2011 wherein the names of the petitioner and the respondent No. 10 were shown as Assistant Teachers of Science, but the name of the respondent No. 9 was merely shown as an excess teacher of the Madrassa. However, when he did not find his name in the website for provincialization of his service and rather found his name described as excess teacher, the respondent filed WP(C) No. 2463/13 before this Court challenging the said list in the website and to direct provincialization of his service as Assistant Teacher in Science subject. After obtaining a copy of the writ petition filed by the respondent No. 9, he came to learn that the respondent No. 9 was shown as being appointed as Assistant Teacher (Science) on 15.10.2000, which, according to the petitioner, is a false entry on the basis of the order dated 15.10.2000 purportedly passed by the respondent No. 8 in his capacity as the Secretary of the Managing Committee of the Madrassa. According to the petitioner, the date itself fell on Sunday when there was no business transaction in the Office of the Madrassa thereby demonstrating that the said appointment order is a false and fabricated document. 2. The petitioner further alleges that the respondent No. 9 also annexed as Annex-iire-4 in that writ petition an order bearing dated 1.3.2011 purportedly issued by the respondent No. 3 approving the resolution taken by the Managing Committee of the Madrassa provisionally approving his appointment, among others, as the Assistant Teacher of the Madrassa. According to the petitioner, the said order is based on false information and is a fabricated document provided by the respondent No. 7 and/or 8 in their capacity as the Superintendent and President of Managing Committee of the Madrassa. Apparently, misled by such false documents produced by the respondent No. 9, this Court by the order dated 10.3.2013 disposed of the writ petition by directing the respondent No. 2 to reconsider the categorization of the respondent N. 9 as excess teacher by keeping in mind his qualification as B.Sc. (Royal) and the applicable norms for High Madrassa and stayed the provincialization of the service of the petitioner and the respondent No. 10 herein. As directed by the respondent No. 2, the petitioner, the respondent No. 6, 9 and 10 appeared before the respondent No. 2, who, despite the objection of the petitioner regarding the date of appointment of the respondent No. 9, issued the impugned order provincializing the service of the respondent No. 9 in the post of Assistant Teacher (Science). When the request made by the petitioner to the respondent No. 6 to furnish him a copy of the appointment letter of the respondent No. 9 was refused whereupon the petitioner filed RTT application to that effect to the respondent No. 3, which also came a cropper. The petitioner had never found the respondent No. 9 attending the Madrassa from 15.10.2000, when he was alleged to have been appointed as Assistant Teacher, to 30.6.2011, the day he was said to join the Madrassa. 3. It is averred by the petitioner that a copy of the DISE Code captured by the State-respondents for this Madrassa for the academic years 2008-09 also does not show the name of the respondent No. 9 whereas the names of the petitioner and seven other teachers figured therein. 3. It is averred by the petitioner that a copy of the DISE Code captured by the State-respondents for this Madrassa for the academic years 2008-09 also does not show the name of the respondent No. 9 whereas the names of the petitioner and seven other teachers figured therein. The name of the respondent No. 9 also did not find a mention in the School Report Card of the Madrassa for the academic years 2006-07 and 2007-08 from the official website regarding the DISE data. In this way, the name of the respondent No. 9 does not find a place in the DISE Code captured for the years till 2010. The petitioner, therefore, contends that if the respondent No. 9 was ever appointed as Assistant Teacher of the Madrassa on 15.10.2000, his name and particulars would have been shown in the DISE Code and the School Report Card from 2000 to 2010. As respondent No. 9 joined the Madrassa only in 2011, he had not completed 10 years of regular service in the Madrassa and is, therefore, not eligible for provincialization of his service under the provisions of the Act. The respondent No. 9 in collusion with the respondent No. 7 and 8 manipulated, fudged and fabricated the record to show that the respondent No. 9 was appointed as Assistant Teacher of the Madrassa on 15.10.2000. As the petitioner has already put in over seventeen years of service as Assistant Teacher in Science subject from 1996 onwards, he is, therefore, senior to the respondent No. 9 who joined his post only on 30.6.2011. It is contended by the petitioner that the provisions of the Act do not stipulate that provincialization of service of Assistant Teacher is to be done on the basis of subject combinations: seniority alone determines the entitlement to provincialization. Even if it is assumed that the respondent No. 9 had joined the post of Assistant Teacher on 16.10.2000 also, the petitioner, who joined the Madrassa on 2.9.1996, is still senior to the respondent No. 9: the petitioner could not be treated as excess teacher and is rather entitled to have his service provincialized in lieu of the respondent No. 9. These are the sum and substance of the case of the petitioner. 4. The writ petition is contested by all the respondents, but only the respondent No. 7 and 9 chose to file their counter-affidavit separately. These are the sum and substance of the case of the petitioner. 4. The writ petition is contested by all the respondents, but only the respondent No. 7 and 9 chose to file their counter-affidavit separately. The respondent No. 7 does not admit that the respondent No. 10 is the senior-most Science Teacher, while the petitioner is the 2nd senior-most Science Teacher in the Madrassa, but denies that the respondent No. 9 was appointed only on 30.6.2011 and asserts that he joined the post on 16.10.2000. No false documents are annexed by the respondent No. 9 in WP(C) No. 2643/13. The answering respondent denies that the business of the school could not be transacted on Sunday and claim that the meetings of the School Managing Committee were sometimes held on Sunday so as not to hamper the day to day affairs of the Managing Committee members: this was reason the meeting appointing the respondent No. 9 was held on Sunday. He also denies that the order dated 1.3.2011 was issued by the respondent No. 3 on the basis of false information and fabricated documents provided by the respondent No. 7 and 8 in their capacity as the Superintendent and President of the Managing Committee of the Madrassa: as the respondent No. 9 was appointed on 15.10.2000 by the managing Committee, the respondent No. 3 rightly issued the order dated 1.3.2011. 5. The answering respondent denies that the petitioner ever applied for a copy of the appointment letter of the respondent No. 9 nor did he receive any RTI application from the petitioner: the question of furnishing such information does not arise. He admits that one Bhabani Kanta Das filed RTI application to supply a copy of MC resolution, etc., but the same could not be provided because the same were destroyed by flood in the year 2012. The incident was duly informed to the Circle Officer, Village Headman and President of the Gaon Panchayat vide Annexures-4, 5 and 6. Though the respondent No. 9 is admittedly junior to the petitioner, he has completed more than 14 years of regular service in the Madrassa. The petitioner was shown as excess teacher by the respondent No. 2 since he and respondent No. 10 taught in the same subject. Though the respondent No. 9 is admittedly junior to the petitioner, he has completed more than 14 years of regular service in the Madrassa. The petitioner was shown as excess teacher by the respondent No. 2 since he and respondent No. 10 taught in the same subject. According the SEBA norms, where there are two science teachers, one should have royal combinations and since the respondent No. 10 is the senior-most science teacher, it was decided to provincialize the service of the respondent No. 9, who has royal combinations, and the petitioner was rightly treated as excess teacher. The writ petition is, therefore, liable to be dismissed. 6. The case of the respondent No. 9 in his affidavit-in-opposition is virtually identical to the stance taken by the respondent No. 7. While reiterating the averments of the respondent No. 7, the respondent No. 9 additionally points out that when the Superintendent of the Madrassa forwarded the names and particulars of the employees for provincialization of their services to the District Scrutiny Committee on 19.12.2011, the name of the petitioner was forwarded against the third post of BA/B.Com. Category (Section Post) whereas the name of the answering respondent was forwarded against the 2nd post of Assistant Teacher (Science). After scrutiny of all their particulars, the DSC declared the answering respondent to be eligible for provicialization in the post of Assistant Teacher whereas the name of the petitioner was declared as excess teacher. It is the allegation of the answering respondent that though DSC found him eligible for the post of Assistant Teacher (Science) and recommended him for the provincialzation, the officer entrusted for uploading the particulars of the staff of the Madrassa in the internet, in collusion with the petitioner, entered the name of the petitioner in his place as the Assistant Teacher (Science) and uploaded his name as excess teacher, which he did not know then. On coming to know of this development, he filed WP(C) No. 2463/13 before this Court, which ultimately led to the passing of the order dated 10.5.2013 upon which the impugned order was passed. 7. It is asserted by the answering respondent that the initial appointment of the petitioner was against a sectional post and was never against the post of Science Teacher. 7. It is asserted by the answering respondent that the initial appointment of the petitioner was against a sectional post and was never against the post of Science Teacher. At that point of time, there were two Assistant Teachers (Science), namely, the respondent No. 10, who has Bio-combination and the other was one Utpal Sarma who has royal combination in B.Sc. It is the case of the answering respondent that when the said Utpal Sarma resigned from this post, he was appointed in place as he has royal combination: there is no provision for appointing two Assistant Teachers with Bio-combination. The staff pattern of any secondary school in Assam is regulated by the Regulations for Recognition of High Schools and High Madrassa, 1988 ("the Regulations") framed by the Board of Secondary Education, Assam (SEBA). The Regulations lays down the principles for appointment of Graduate Teachers (B.Sc.). Following the said principles, the Recognition Committee stipulates that there should be two Assistant Teachers of Science Subject, one with Physics, Chemistry and Mathematics combination and other with Botany and Zoology combination, which are to be followed by all High Schools and Madrassas. The petitioner, who comes from Bio stream, was never appointed as Assistant Teacher (Science) when there is already another Assistant Teacher from Bio stream, namely, the respondent No. 10, who is senior to the petitioner. The remaining averments in the affidavit are merely repetition of the earlier contentions, which need not be reproduced here for the sake of brevity. 8. After hearing Mr. P.D. Nair, the learned counsel for the petitioner, Mr. U.K. Goswami, the learned standing counsel for the Education (Secondary) Department, Assam, Mr. H. Sarma, the learned counsel for the respondent No. 7 and 10 and Mr. N. Haque, the learned counsel for the respondent No. 9, the first question for consideration in this writ petition is whether the respondent No. 9 joined the post of Assistant Teacher (Science) in the Madrassa on 15.10.2000 or on 30.6.2011 as claimed by the petitioner. In my opinion, this question does not serious problems inasmuch as the document annexed by the petitioner himself, namely, Annexure-3B to the writ petition, has disclosed the date of joining of the respondent No. 9 to be 16.10.2000 while describing him as excess teacher of the Madrassa, the genuineness whereof can hardly be seriously disputed by the petitioner. In my opinion, this question does not serious problems inasmuch as the document annexed by the petitioner himself, namely, Annexure-3B to the writ petition, has disclosed the date of joining of the respondent No. 9 to be 16.10.2000 while describing him as excess teacher of the Madrassa, the genuineness whereof can hardly be seriously disputed by the petitioner. Therefore, there is no difficulty in presuming that the respondent No. 9 joined the post of Assistant Teacher of Science in the Madrassa on 16.10.2000. In so far as the date of joining of the petitioner in the Madrassa is concerned, there can also be no dispute that he joined the Madrassa on 1.9.1996. As per An-nexure-3 A to the writ petition, the genuineness whereof is not in doubt, he was appointed as Assistant Teacher (Science) with B.Sc. (Bio-combination) on 1.9.1996 in the Madrassa. If the respondent No. 9 alleges that while uploading the particulars of the staff of the Madrassa in the internet, the officers entrusted for that purpose, in collusion with the petitioner, had entered his name in his place as Assistant Teacher (Science) and, conversely, uploaded his name (petitioner's name) as excess teacher without authority, the burden of proof is upon him (respondent 9) to establish such allegation. This is imperative inasmuch as such uploading was done by the officials of the State-respondents in the discharge of their official duties: there is always presumption of regularity of an official act. This presumptive evidence must be successfully rebutted by the respondent No. 9, which he has miserably failed to do so. It is next contended by the learned counsel for the respondent No. 9 that the impugned order dated 18.6.2013 holding that his service is entitled to be provincialized as he is a B.Sc. with royal combination as it is in conformity with SEBA norms, does not suffer from any infirmity and is, therefore, not liable to be interfered with. The question as to whether seniority should be the sole question for provincialization of the teachers who belong to the same category came up for consideration before this Court in WP(C) No. 2803 of 2013 (Add Latifur Rahman Choudhury Vs. State of Assam & Ors.). Holding that it is seniority in the category which counts, this court held as follows: "6. State of Assam & Ors.). Holding that it is seniority in the category which counts, this court held as follows: "6. The provisions dealing with provincialization of service of the employees of Venture Educational Institutions are adumbrated in Section 4 of the Act, which is reproduced herein below: "4. Employees to be Government servant.--(1) The services of he employees of all eligible Venture Educational Institutions under Section 3 and who have already completed ten years of service in such Educational Institution without any break from the date of affiliation, recognition, concurrence or permission as the case may be, of the concerned educational institutions as on the date of coming into force of this Act, shall be deemed to have been provincialized and they shall become employees of the State government with effect from that date. (2) The service of all teaching and non-teaching employees, who have not yet completed ten years of continuous services without break in Venture Educational Institutional Institutions as under sub-section (1) shall be provincialized with effect from the date on which they complete the required ten years of service as stipulated under subsection (1): Provided that the numbers of employees in both teaching and non-teaching cadre in each of the institution, services of whom are provincialized under this Act, shall not exceed as specified in the Schedule appended to this Act: Provided further that where the number of such employees serving in such Venture Educational Institutions exceeds the numbers as specified in the Schedule, the provincialization of the services of the employees shall be on the basis of seniority in the respective category in the concerned educational institution. The State Government shall have no liability whatsoever in regard to such employees. * * *" "7. The provisions reproduced above plainly indicate that the services of the teaching and non-teaching employees who have completed ten years of continuous service in Venture Educational Institutions without any break from the date of the recognition thereof and to the date of the coming into force of the Act shall be treated as provincialized with effect from that date. It further provides that in the case of those teaching and non-teaching employees who are yet to complete ten years without any break in such institution shall also be provincialized from the date on which they complete the required ten years. It further provides that in the case of those teaching and non-teaching employees who are yet to complete ten years without any break in such institution shall also be provincialized from the date on which they complete the required ten years. However, a restriction is placed by the first proviso thereto which says that the number of employees in both teaching and non-teaching cadre in each of the institution, whose services are to be provincialized shall not exceed the numbers specified in the Schedule appended to the Act. Then the second proviso thereto also provides that if the numbers of such employees serving in the institution exceeds the numbers specified in the said Schedule, provincialization of the services of the employees shall be done on the basis of the seniority in the respective category in the concerned educational institution: the State Government disowns any liability in respect of excess employees. Thus, the crucial words are "seniority in the category". For example, if the petitioner is senior to the respondent No. 6 in the category, in the absence of vacancy to accommodate both of them, he will have a superior claim in the matter of provincialization by virtue of his seniority. "8. What then is the term "category"? The term "category" is not expressly defined in the Act. In the instant case, we are concerned with the teaching staff of a High School. A clue to the meaning of the term "category" can, however, be had from the Schedule appended to the Act. In the second column of Schedule, it is found that all the posts of Assistant Teacher (Science) are made to form one category of the teaching staff in a High School. Therefore, the term "seniority in the category" in the context of provincialization of employees of a High School under the Act can only mean seniority among the Assistant Teachers (Science) of the School. So read, the respondent No. 6, who joined the post of Assistant Teacher (Science) on 27.3.1995 in the School, is admittedly senior to the petitioner in the category of Assistant Teacher (Science) as the latter joined the School only on 21.5.1998. 9. It is, however, contended by the Mr. D.K. Bhattacharya, the learned counsel for the petitioner, that as out of the three Assistant Teachers (B.Sc.), the First Assistant Teacher (Science), namely, Md. 9. It is, however, contended by the Mr. D.K. Bhattacharya, the learned counsel for the petitioner, that as out of the three Assistant Teachers (B.Sc.), the First Assistant Teacher (Science), namely, Md. Gias Ali Talukdar, has the subject combination of Botany, Zoology and Chemistry in B.Sc., the service of the petitioner, who is a B.Sc. with the subject combination of Physics, Chemistry and Mathematics, became essential to take classes in Physics and Mathematics, which was why he was shown as Second Assistant Teacher (Science) at the time of applying for recognition of the School. In my opinion, this contention cannot be accepted for the simple reason that seniority cannot be determined on the basis of the need for the service of the petitioner to teach Physics and Mathematics: no such provision is made under the Act. There is no dispute at the bar that the respondent No. 7 is an Assistant Teacher (Science) even though he may be teaching only in Advanced Mathematics. Once it is held that he belongs to the category of Assistant Teachers (Science), his seniority vis-à-vis the petitioner must be determined in accordance with the 2nd Proviso to Section 4(2) of the Act. Since the respondent No. 7 is found to be senior to the petitioner and since there is no other post of Assistant Teacher (Science) to accommodate the petitioner, he has been rightly declared to be excess Assistant Teacher. No other issue, on the basis of the pleadings of the parties, survives for consideration." 9. In my opinion, the issues raised by the learned counsel for the respondent No. 9 have been completely answered by the paragraphs extracted in the foregoing. At this stage, it may be instructive to note that in the minutes of the meeting held on 29.10.2013 under the chairmanship of the same respondent No. 2, it was resolved as under: "The matter relating to Science Teacher was also discussed. There is no mention of specific subject in the Act for appointment of Science Teacher. The Government has not followed the SEBA's Regulation. Hence, provincialization of services of Science Teacher will be as per the Act considering their seniority." 10. There is no mention of specific subject in the Act for appointment of Science Teacher. The Government has not followed the SEBA's Regulation. Hence, provincialization of services of Science Teacher will be as per the Act considering their seniority." 10. Thus, the aforesaid resolution adopted by the Directorate of Secondary Education, Assam with the Office-bearers of Assam High School Teachers' Association is quite consistent with the view taken by this Court in WP(C) No. 2803/13, which has not been set aside by the appellate court till now. Nevertheless, a new development has now taken place on this aspect of the matter. The Additional Chief Secretary to the Government of Assam, Secondary Education Department, Dispur has issued the Office Memorandum dated 7th May, 2014 conveying the decision of the State Government concerning this question, the relevant portion whereof is reproduced below: "After careful consideration of all aspects, the Government have decided that henceforth one of the Science Teachers in each High School/High Madrassa should be science graduate with the combination of subjects viz. Physics, Chemistry and Biology and another should have combination of subjects either of Physics, Chemistry or Economic, Statistics, Mathematics or any combination having Mathematics. (Underlined for emphasis) Relevant rules of the Assam Secondary Education (Provincialized) Services Rules, 2003 shall be amended accordingly later on." 11. The aforesaid Office Memorandum has now clarified the entire issue by holding that henceforth one of the Science Teachers in each High School/High Madrassa should be a science graduate with the following combination, namely, Physics, Chemistry and Biology and another should have combination of subjects either of Physics, Chemistry, Mathematics or Economics, Statistics, Mathematics or any combination having Mathematics. Unfortunately for the respondent No. 9, this Office Memorandum has come into effect too late in the day to salvage his case. This Office Memorandum is evidently prospective in operation and does not have a retrospective effect as evident from the use of the term "henceforth", which, according to Oxford Advanced Learner's Dictionary, 9th Edn. (2015), means "starting from a particular time and at all times in the future". In any case, the law is now well-settled that any administrative instruction is prospective in operation, and cannot have retrospective operation unless specifically provided therefor. In the view that I have taken, the impugned order issued by the respondent No. 2 cannot be sustained in law and is, therefore, liable to be quashed. In any case, the law is now well-settled that any administrative instruction is prospective in operation, and cannot have retrospective operation unless specifically provided therefor. In the view that I have taken, the impugned order issued by the respondent No. 2 cannot be sustained in law and is, therefore, liable to be quashed. For what has been stated in the foregoing, this writ petition succeeds. The impugned order dated 18.6.2013 (Annexure-8) provincializing the service of the respondent No. 9 against the post of Assistant Teacher (Science) in Moranjana Anchalik High Madrassa is hereby quashed. Consequently, the respondent No. 2 is directed to provincialize the service of the petitioner in the said post with effect from the date of provincialization of the respondent No. 9, whose provincialization has now been quashed, but without monetary benefits. The entire exercise shall be carried out within a period of six weeks from the date of receipt of this judgment No costs.