Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 808 (GAU)

Md. Fakar Uddin Laskar v. State of Assam

2016-08-26

UJJAL BHUYAN

body2016
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. A.R. Bhuiyan, learned counsel for the petitioners, Mr. N. Sharma, learned Standing Counsel, Education Department for respondent Nos.1 to 5, Mr. N. Dhar, learned counsel for respondent Nos.6, 7 and 8, Mr. M.H. Majarbhuiyan, learned counsel for respondent No.9, Mr. M.H. Laskar, learned counsel for respondent No.11 and Mr. F.U. Borbhuiyan, learned counsel for respondent No.13. There is no representation on behalf of respondent Nos.10 and 12, though served. 2. Six petitioners have joined together and have filed the present writ petition seeking the following reliefs: "(A) to set aside/quash the impugned staff pattern dated 29.06.2012 (Annexure-13) submitted by the respondent No.7 before the respondent No.2 whereby he excluded the name of the petitioners as the staff of Silchar Senior Madrassa; (B) to set aside/quash the impugned appointments of the respondent Nos.8 to 12 as the teaching staff of Silchar Senior Madrassa; (C) to set aside/quash the impugned suspension of the petitioners; (D) directing/commanding the State respondents more particularly the respondent Nos.1 to 6 to make necessary arrangement for the purpose of reinstatement and joining of the petitioners to their respective posts; (E) directing/commanding the State respondents more particularly the respondent Nos.1 to 5 not to proceed with the process for provincialisation of the post of Superintendent and the post/s holding (sic) by the respondent Nos.8 to 12 in Silchar Senior Madrassa; (F) directing/commanding the State respondents more particularly respondent No.2 to release the petitioner's share of fixed monthly remuneration for the session 2010-2011 and 2011-2012; (G) directing/commanding the State respondents more particularly the respondent Nos.2, 3 and 5 to dispose of the representations dated 05.11.2010, 08.10.2012 and 16.10.2012 submitted before them by the petitioners (Annexure-8 and 16 herewith)." 3. As per prayer A, staff pattern of the Silchar Senior Madrassa submitted by respondent No.7 before the respondent No.2 for the purpose of provincialisation is being questioned. 4. By prayer B, appointments of respondent Nos.8 to 12 as teaching staff of Silchar Senior Madrassa by the school authority at the stage when Silchar Senior Madrassa was a venture educational institution has been challenged. 5. Suspension of the petitioners has been questioned as per prayer C and as per prayer D, petitioners seek a direction to the respondents for their reinstatement in service in the Silchar Senior Madrassa. 6. 5. Suspension of the petitioners has been questioned as per prayer C and as per prayer D, petitioners seek a direction to the respondents for their reinstatement in service in the Silchar Senior Madrassa. 6. As per prayer E, petitioners seek a direction to the respondents not to provincialise the post of Superintendent as well as the post(s) held by respondent Nos.8 to 12 in the Silchar Senior Madrassa. 7. Prayer for release of fixed monthly remuneration for the Sessions 2010-2011 and 2011-2012 has been made under prayer F. Finally, as per prayer G, petitioners seek a direction to the respondents to consider and dispose of the representations submitted by them in connection with the aforesaid grievances. 8. Thus, from the above, it is quite apparent that there has been clubbing together of several issues leading to joinder of multiple causes of action. 9. Notwithstanding the same, on a closer look, it is seen that the core issue involved in the writ petition relates to provincialisation of Silchar Senior Madrassa and all the impugned actions are relatable to the said core issue. 10. As already noticed above, the Silchar Senior Madrassa (Madrassa) was a venture educational institution. While petitioner No.1 was appointed as Superintendent of the Madrassa on 01.04.2001, petitioner Nos.2 and 3 were appointed as Assamese Language Teacher and Lower Division Assistant in the Madrassa on 16.11.1994 and 17.08.1998 respectively. Subsequently, petitioner Nos.4, 5 and 6 were appointed as Teachers in the Madrassa on 28.10.2009 following due selection. 11. Petitioner No.1 as the Superintendent of the Madrassa, prepared a staff pattern of the Madrassa wherein names of the petitioners were included with petitioner No.1 as the Superintendent. 12. Vice-President of the Managing Committee of the Madrassa lodged an Ejahar on 14.03.2010 before Silchar Police Station alleging that petitioner Nos.1 and 3 had fabricated signatures of other members of the Managing Committee and thereafter appointed respondent Nos.4 to 6 in the Madrassa by resorting to corruption. The said Ejahar was treated as FIR and on that basis Silchar Police Station Case No.540/2010 was registered under Sections 468/409/471 IPC. In the course of investigation, police arrested petitioner Nos.1 and 3 on 16.03.2010. Following such arrest of petitioner Nos.1 and 3, they were suspended. Respondent No.7 was given the charge of the office of the Superintendent of the Madrassa. 13. In the course of investigation, police arrested petitioner Nos.1 and 3 on 16.03.2010. Following such arrest of petitioner Nos.1 and 3, they were suspended. Respondent No.7 was given the charge of the office of the Superintendent of the Madrassa. 13. It is stated that subsequently petitioner Nos.1 and 3 were granted bail but their suspension orders were not revoked. When they went to the Madrassa, they were restrained from putting their signatures in the teachers' attendance register. Representations submitted by petitioner Nos.1 and 3 before the higher authorities for reinstatement failed to evoke any response. 14. Managing Committee of the Madrassa passed resolution on 19.12.2010 suspending petitioner Nos.4 and 5 on the ground of being illegally appointed. Petitioner Nos.2 and 6 were also restrained from signing the teachers' attendance register. 15. Govt. of Assam in the Education Department initiated a process to provide financial assistance to different categories of venture educational institutions and in this connection, Government notification dated 12.01.2011 was issued. Madrassa of the petitioners was also included and consequential financial assistance was released to the Madrassa. But petitioners were not paid any financial assistance. 16. Faced with such a situation, petitioner No.2 filed a complaint before the Chief Judicial Magistrate, Cachar, against respondent No.7 which led to registration of Silchar Police Station Case No.222/2012 under Sections 409/468/471 IPC. Though a writ petition was filed by petitioner No.2, the same was disposed of by the Court by directing the respondents to mitigate the grievance of the petitioner. It is stated that no steps were taken for redressal of the grievance of the said petitioner. 17. The Madrassa was taken up for consideration for provincialisation under the Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011. In this connection, respondent No.7 prepared a staff pattern of the Madrassa dated 29.06.2012 and submitted the same before respondent No.2 through proper channel. All the petitioners were excluded by respondent No.7 from the aforesaid staff pattern. On the other hand, names of respondent Nos.8 to 12 were included in place of the present petitioners. 18. Aggrieved, petitioners had submitted representation before the higher authority but again there was no response. Though petitioner Nos.3, 4, 5 and 6 had filed a writ petition, this Court disposed of the same by directing respondent No.5, i.e., Inspector of Schools, Cachar District Circle, to look into the grievance of the petitioners. 18. Aggrieved, petitioners had submitted representation before the higher authority but again there was no response. Though petitioner Nos.3, 4, 5 and 6 had filed a writ petition, this Court disposed of the same by directing respondent No.5, i.e., Inspector of Schools, Cachar District Circle, to look into the grievance of the petitioners. In respect of said order of this Court, no steps were taken by the respondents for redressal of the grievance of the petitioners. Subsequent representations submitted also failed to elicit any response. 19. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 20. Referring to the provisions of the Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006 and the Assam Non-Government Educational Institutions (Regulation and Management) Rules, 2007, petitioners contend that their suspension is illegal and could no longer be continued. No proceedings were drawn up against the petitioners. This aspect is required to be considered by the authority while considering provincialisation of the Madrassa. 21. Respondent No.2 has filed affidavit wherein stand taken is that the Madrassa being a venture educational institution is not under the control of the Government. Administration of the Madrassa was vested in the Managing Committee. Head of the institution had forwarded the particulars of the teaching and non-teaching staff of the Madrassa to the District Scrutiny Committee and after completion of scrutiny, District Scrutiny Committee had forwarded the particulars to the Directorate of Madrassa Education for taking necessary steps. 22. Respondent Nos.6 and 7 in their common affidavit have stated that petitioner No.1 while functioning as Superintendent of the Madrassa, had forged signatures of the members of the Managing Committee together with petitioner No.3 and illegally appointed petitioner Nos.4, 5 and 6. In this process, they had made unlawful gains and had also misappropriated the financial assistance granted by the Government to the Madrassa. 23. Referring to Silchar Police Station Case No.540/2010, it is stated that petitioner Nos.1 and 3 were arrested by police. Subsequently, on completion of investigation, police submitted charge-sheet dated 26.11.2011 against petitioner Nos.1 and 3 under Sections 468/409/471 IPC. Similar Ejahar was also lodged against petitioner Nos.4, 5 and 6. It is stated that petitioner Nos.1, 4 and 5 were suspended from service. In so far petitioner No.2 is concerned, he was unauthorisedly absent for which several show-cause notices were issued to him. Similar Ejahar was also lodged against petitioner Nos.4, 5 and 6. It is stated that petitioner Nos.1, 4 and 5 were suspended from service. In so far petitioner No.2 is concerned, he was unauthorisedly absent for which several show-cause notices were issued to him. As petitioner No.2 did not respond to the show-cause notices, his services were terminated on 19.12.2010. Referring to petitioner No.6, it is stated that since the said petitioner was illegally appointed, question of payment of any financial assistance to the said petitioner or provincialisation of his service did not arise at all. 24. Respondent No.8 in his affidavit has stated that petitioner No.2 was terminated from service because of failure to respond to the show-cause notices which were issued to him for remaining unauthorisedly absent from duty. In place of petitioner No.2, respondent No.8 was appointed as Assamese Language Teacher. In so far Silchar Police Station Case No.222/2012 is concerned, it is stated that police submitted final report stating that there was no material against respondent No.7 and the said final report was accepted by Chief Judicial Magistrate, Cachar. 25. Respondent No.13 in his affidavit filed on 26.08.2015 has stated that the Madrassa was provincialised vide order dated 27.12.2013 and is now functioning properly. Petitioner Nos.4 to 6 were appointed illegally by petitioner Nos.1 and 3 by manipulation of record and forging signatures of members of the Managing Committee which has resulted in registration of Silchar Police Station Case No.540/2010. In the said case, police had submitted charge-sheet and the trial of the case had commenced. He has placed on record a copy of the provincialisation order dated 27.12.2013. 26. Submissions made by learned counsel for the parties are on pleaded lines and therefore a detailed reference to the submissions so made is considered not necessary. However, the submissions made have been considered. 27. The Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2012 is pari materia to the provisions of Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 (Act) has been enacted to provincialise the services of the employees of venture madrassa educational institutions in the State of Assam and to restrict further establishment of such educational institutions in the State. The cut-off date for provincialisation of the employees, both teaching and non-teaching, is 01.01.2011. 28. Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 (Act) has been enacted to provincialise the services of the employees of venture madrassa educational institutions in the State of Assam and to restrict further establishment of such educational institutions in the State. The cut-off date for provincialisation of the employees, both teaching and non-teaching, is 01.01.2011. 28. As per Section 5, upon provincialisation, the employees of the provincialised venture madrassa educational institutions would be deemed to be Government employees and they would be entitled to all protections and privileges as employees of the State Government. Section 11 provides for three tier level of scrutiny prior to provincialisation - at the first level by the District Scrutiny Committee to be constituted in each district by the Deputy Commissioner, thereafter by the Director of Madrassa Education and finally, by the State Government. 29. As per scheme of Section 11, initial scrutiny of service record and other related issues of serving teaching and non-teaching staff of venture madrassa educational institutions for the purpose of provincialisation would be carried out by the District Scrutiny Committee who upon due verification shall forward the verified list of eligible teaching and non-teaching staff madrassa-wise to the Director of Madrassa Education who, in turn, shall make further scrutiny if required and thereafter forward the same to the State Government for consideration. After completion of verification process, State Government shall issue notification in respect of eligible madrassa educational institution and employees eligible for getting their services provincialised. 30. Though the provincialisation order dated 27.12.2013 has not been put to challenge by the petitioners by amending the writ petition, the same having been placed on record may be considered. Court would be duty-bound to examine a document brought on record which has a material bearing on the lis before the Court. 31. The provincialisation order dated 27.12.2013 has been issued by the Director of Madrassa Education, Assam whereas under Section 11(4) of the Act, power to issue notification for provincialisation vests with the State Government and not with the Director. Therefore, on the face of it, such provincialisation order appears to be without jurisdiction. That apart, this case was filed on 21.01.2013. Notice was issued on 05.02.2013 with an interim direction that provincialisation benefits should not be conferred on respondent Nos.7 to 12. Therefore, on the face of it, such provincialisation order appears to be without jurisdiction. That apart, this case was filed on 21.01.2013. Notice was issued on 05.02.2013 with an interim direction that provincialisation benefits should not be conferred on respondent Nos.7 to 12. As already noticed in the earlier part of this order, the core issue involved in this lis relates to provincialisation of the madrassa. When the Court is adjudicating the lis, the administrative authority was not justified in issuing the provincialisation order dated 27.12.2013 thereby virtually rendering the adjudication infructuous. A Division Bench of this Court in Akaddas Ali v. State of Assam, reported in (2014) 4 GLR 3, has held that when Court is in seisin of a matter, an administrative authority cannot start a parallel proceeding on the very same subject matter at its own ipse dixit and record a finding. It would amount to interfering with the dispensation of justice by the Court. Therefore, viewed in the above context, the provincialisation order dated 27.12.2013 would be of no legal consequence. 32. As per first part of the order, a total of 21 posts were allotted to the Madrassa in the following manner: Superintendent -1, MM (Post-Graduate Assistant Teacher) - 4, FM (Graduate Assistant Teacher) - 4, Arts Graduate Teacher - 3, Science Graduate Teacher - 2, Hindi Language Teacher - 1, Assamese Language Teacher - 1, Intermediate Assistant Teacher-1, Intermediate and Hafiz Assistant Teacher -1, Librarian - 1, Junior Assistant - 1, Grade-IV -1 Total = 21 33. Though names of petitioner Nos.2 to 6 are not reflected in the list of incumbents which forms the second part of the provincialisation order, name of petitioner No.1 is included in the list of incumbents for provincialisation as Superintendent of the Madrassa. But in the remarks column, there is a remark 'under suspension' against his name. As against other teachers and staff, which includes respondent Nos.7, 8, 9, 11 and 13, there is a remark that provincialisation of service will be decided only after declaration of final verdict of the High Court in the present case, i.e., WP(C) No.490/2013. 34. Having noticed the above, provisions contained in Section 11 of the Act may once again be adverted to. 35. 34. Having noticed the above, provisions contained in Section 11 of the Act may once again be adverted to. 35. As already discussed above, Section 11 contemplates three stages of scrutiny starting from District Scrutiny Committee and ending up at the level of the Government through the Director of Madrassa Education. The power to issue provincialisation notification is vested with the State Government. In other words, the power to provincialise vests with the State Government. Therefore, till provincialisation notification is finally issued, there is no final determination regarding provincialisation. No finality is attached at the stage of scrutiny prior to issuance of the provincialisation notification by the State Government. In such circumstances, when the scrutiny is before the District Scrutiny Committee or before the Director of Madrassa Education or before the Government, until final decision is taken, no right of any incumbent can be said to have accrued or can be said to have been infringed and no cause of action can be said to have arisen for instituting a legal proceeding. It is only after issuance of the provincialisation notification, it can be said that the issue has been finally determined affecting the rights of the parties in one way or the other and it is at this stage, cause of action can be said to have arisen clothing the aggrieved party as is understood in law with the right to institute a legal proceeding. 36. Having regard to the effect of provincialisation, namely, conferring of status of Government servant on the teaching and non-teaching staff of provincialised institution, it is necessary that at the time of verification, all relevant aspects are required to be examined. If there is suspension of a teaching or non-teaching staff of the venture educational institution or termination of service, the same is required to be ascertained by the verifying authority as to whether provisions of the Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006 and the Assam Non-Government Educational Institutions (Regulation and Management) Rules, 2007, have been complied with while placing a staff under suspension or terminating his/her service. This is necessary to ensure and eliminate any kind of foul play on the eve of provincialisation. 37. This is necessary to ensure and eliminate any kind of foul play on the eve of provincialisation. 37. From the provincialisation order dated 27.12.2013, it is seen that barring the Superintendent, i.e., petitioner No.1, in respect of the other incumbents, it has been remarked that provincialisation of service would be decided only after declaration of final verdict in WP(C) No.490/2013. When the Court is deliberating on the matter, there was no need for the Director of Madrassa Education to have passed the provincialiation order dated 27.12.2013 more so when he had no competence to issue such a notification. Making a remark in the remarks column that provincialisation would be subject to outcome of the pending writ petition does not make any sense at all as it is no provincialisation in the eye of law. Therefore, it has to be borne in mind that there should be no haste and hurry in provincialising a venture educational institution. After all, it amounts to conferring of status of Government servant on the employees and public money is involved. A venture educational institution which is mired in controversy or entangled in litigation/Court cases or where police/criminal investigation is pending or is subjected to police/criminal investigation should not be considered for provincialisation unless such institution is cleared of such controversy, litigation or investigation. 38. Corollary to the above, it goes without saying that there cannot be provincialisation of service of a charge-sheeted accused. In the instant case, charge-sheet has already been filed against petitioner No.1 and the criminal case is pending at the stage of trial. In such circumstances, including the name of petitioner No.1 in the list of incumbents for provincialisation with only the remark 'under suspension' is wholly untenable. When entry into Government service in the case of direct recruitment is conditioned upon satisfactory police verification, then in a provincialisatoin exercise, which confers status of Government servant on the staff of the provincialised school, such scrutiny or verification of antecedents of the teaching and non-teaching staff cannot be waived. Therefore, police verification of the antecedents of the teaching and non-teaching staff prior to provincialisation is most essential. 39. Therefore, police verification of the antecedents of the teaching and non-teaching staff prior to provincialisation is most essential. 39. In view of above, matter of provincialisation of Silchar Senior Madrassa is remanded back to the Government in the Education Department for examination afresh in accordance with law and having regard to the discussions made above since the provincialisation order dated 27.12.2013 has been held to be of no legal consequence. This exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order. If after fresh exercise any party is aggrieved, the aggrieved party would be at liberty to approach the competent Educational Tribunal for redressal of his/her grievance in terms of the Full Bench judgment of this Court in Abdul Gafur Mondal v. State of Assam, 2015 (2) GLT 337. 40. With the above direction and observation, writ petition is disposed of.