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2017 DIGILAW 144 (GAU)

JITU SARMAH v. STATE OF ASSAM

2017-02-02

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2017
JUDGMENT : (Ajit Singh, J. 1. This writ appeal is directed against the order dated 7.8.2013 passed by the learned Single Judge of this High Court, whereby he has allowed WP(C) No. 5488/2008 of Respondent No.7 – Md. Zakir Hussain. 2. Both appellant and Respondent No.7 are handicapped persons and they applied for appointment in Grade-III post of the State Education Department. In the select list published, appellant was shown selected and thereafter, the State Government also appointed him. Aggrieved, Respondent No.7 filed WP(C) No.5488/2008 on the ground that appointment of appellant was illegal as he had secured more marks than him. The learned Single Judge of this High Court agreed with Respondent No.7 and by the impugned order dated 7.8.2013, directed for cancellation of appellant’s appointment. It is, in this background, the appellant filed the present appeal. 3. Admittedly, in compliance of order dated 7.8.2013, Respondent No.7 has been appointed in Grade-III post. The position now is that both appellant and Respondent No.7 are working in Grade-III posts i.e. as Assistant Teachers. To be precise, the posting of appellant is as Assistant Teacher in 390 No. Barbaradi Balika L.P. School. And the State Government, as a goodwill gesture, has decided to accommodate appellant as well as Respondent No.7 as Assistant Teachers in the Education Department, essentially, because they are handicapped and removal of appellant from service, for no fault of his, will cause great hardship to him and his family. This decision of the State Government has been informed to us through Senior Additional Advocate General, Assam. The communication dated 2.2.2017 of Senior Additional Advocate General, Assam addressed to the Registrar General, Gauhati High Court, reads as under: “In reference to the abovementioned Writ Appeal, I would like to request you to bring the following developments to the notice of the Division Bench of this Hon’ble High Court comprising of the Hon’ble Chief Justice and Hon’ble Mr. Justice A.M. Bujor Barua. (1) That, regarding the service of the Writ Appellant, Sri Jitu Sarma, I have received telephonic instruction at 6.30 PM on 01.02.2017 from Dr. Justice A.M. Bujor Barua. (1) That, regarding the service of the Writ Appellant, Sri Jitu Sarma, I have received telephonic instruction at 6.30 PM on 01.02.2017 from Dr. H.B. Sarma, Minister of Education Department and Finance Department, Assam, that the State Government has no objection in allowing the said incumbent to continue in his service as an Assistant Teacher of 390 No. Barbaradi Balika L.P. School upon considering him as a physically challenged person, and also, he being in service for a substantial period of time, although erroneously. (2) That his services shall not be disturbed in any manner for the remaining part of his service tenure unless he is found to be involved in any misconduct. (3) That, the decision of the Departmental Minister on behalf of the Education (Elementary) Department to allow the Writ Appellant to continue in service has been taken up as a special case, and the same principle may not be applied in other cases and further, such decision may not be treated as a precedent in future. You are most humbly requested to bring this letter to the notice of the Hon’ble Chief Justice, Gauhati High Court at the earliest.”. 4. We appreciate the stand taken by the State Government to accommodate both appellant and Respondent No.7 as Assistant Teachers in the Education Department. Appellant and Respondent No.7 are also satisfied with the aforesaid decision of the State Government. 5. The writ appeal, therefore, stands finally disposed of in terms of the above quoted decision of the State Government. We also deem it proper to observe that the aforesaid decision of the State Government shall not be treated as precedent.