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2017 DIGILAW 734 (GAU)

Mokibur Rahman v. State of Assam

2017-06-06

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT & ORDER : Heard Mr. D.P. Chaliha, learned senior counsel for the petitioner. Also heard Ms. S. Kanungo, learned counsel for the respondent Nos. 4 and 5 and Ms. P.R. Mahanta, learned counsel for the respondent Nos. 1 to 3. 2. On the same date, both the petitioners were appointed as Grade-IV employee by the Hamidabad College by a Resolution No.2 dated 26.06.1998 of the Governing Body and accordingly, they joined their respective services on 27.06.1998. It is stated that their joining report were duly received by the Secretary of the Hamidabad College. Annexure-B1 is the appointment letter dated 26.06.1998 of the petitioner No.1, whereas, Annexure-B3 is the appointment letter dated 26.06.1998 in respect of petitioner No.2. Both the appointment letters were signed by the Secretary of the said College. Accordingly, by Annexure-B2, the petitioner No.1 submitted his joining report to the Principal of the Hamidabad College with a copy of the same to the Secretary of the said College. It is the case of the petitioners that although the petitioners were appointed by the Resolution dated 26.06.98, the College authorities denies their appointment by taking a stand that the petitioners were never appointed by the College authorities as per the said resolution of the Governing body. It is the case of the petitioners that by the Resolution No.1 of the Governing body dated 26.06.1998 one Shonaullah Sheikh was appointed as lecturer in the Department of Arabic and by Resolution No.3 two persons, namely, Abdul Hamid Khandekar was appointed as Library Assistant and Nasir Uddin was appointed as Peon and were upgraded as U.D. Asstt. and Library Assistant respectively. Accordingly, it is the case of the petitioners that when the Resolution No.1 as well as Resolution o.3 is accepted and acted upon, it cannot be a case of the College authorities that the Resolution No.2 did not appoint the petitioners. 3. In such view of the matter, the core decision before the respondent authorities would be as to whether the petitioners were appointed by the said Resolution No.2 dated 26.06.98. For a proper adjudication, it would be incumbent upon the respondent authorities to call for the records from the College authorities of Hamidabad College and examine the original Resolution No.1, 2 and 3 of the Governing Body of the College. For a proper adjudication, it would be incumbent upon the respondent authorities to call for the records from the College authorities of Hamidabad College and examine the original Resolution No.1, 2 and 3 of the Governing Body of the College. In the absence of any such examination, it cannot be ascertained that the petitioners were not appointed by the Resolution No.2 dated 26.06.98. 4. Being aggrieved, the petitioners had preferred a writ petition being WP(C) No.3782/2013, which was disposed of by the order dated 23.05.2014 by providing that the case of the petitioners be placed before the District Scrutiny Committee for Higher Education in the Dhubri district to scrutinize their claim. It was further provided that consequential steps shall also be taken depending upon the outcome of the scrutiny of the District Scrutiny Committee. In this writ petition, the concerned enquiry report of the District Level Scrutiny Committee under the signature of Inspector of Schools, Dhurbi District Circle is being assailed. 5. Mr. D.P. Chalia, learned senior counsel for the petitioners by referring to the report of the District Level Scrutiny Committee has pointed out that the said report had been prepared without even requiring the College authorities to be present before the committee and without inspecting any records. 6. On a perusal of the said enquiry report, which is undated, but finds reference in the letter dated 09.09.2014 of the Inspector of Schools, it is seen that the petitioners had attended the hearing on 22.07.2014 and had submitted the required documents of the Managing Committee of the College held on 26.06.98. The enquiry report further states that although the principal and president of the said College was duly notified and had been requested to attend the hearing on 22.07.2014 and 08.08.2014, but for reasons unknown, the aforesaid two authorities of the College has chosen not to remain present. Accordingly, the District Scrutiny Committee examined the appointment letter and joining report of the petitioners and arrived at a conclusion that the joining report of the persons were not received by the Secretary himself. It was stated that the petitioner had submitted the joining report to the Principal of the said College with a copy to the Secretary. The scrutiny committee was of the view that as per the departmental procedure, the letter/reports are to be received by the person to whom it is addressed and not by anybody else. It was stated that the petitioner had submitted the joining report to the Principal of the said College with a copy to the Secretary. The scrutiny committee was of the view that as per the departmental procedure, the letter/reports are to be received by the person to whom it is addressed and not by anybody else. Based on the aforesaid reasons, the enquiry committee arrives at a conclusion that the claim of the petitioners that they were appointed in the Hamidabad College as Grade-IV cannot be accepted. The aforesaid reason of the enquiry committee in the considered view of this Court is inadequate. 7. As already alluded that if the enquiry committee is required to decide as to whether the petitioners were appointed in the said College on and from the given date and whether they are working or not, the same has to be determined on the basis of the records of the Managing Committee of the College and not on the basis of some conjectures and surmises that the appointment letters were received by the Secretary and not by the Principal of the college. The question whether the petitioners have been appointed or not is a matter of a factual determination and that depends on the facts as available on record and the same cannot be determined on the basis of any interpretation by the scrutiny committee as regards acceptance of the joining report. 8. In such view of the matter, the report of the District Scrutiny Committee as referred in the letter dated 09.09.2014 of the Inspect of Schools, Dhubri district is not sustainable. Accordingly, the matter be remanded back to the District Scrutiny Committee for considering the claim of the petitioners afresh and in doing so, the District Scrutiny Committee shall invariably call for the records of the Governing Body of the college more particularly the Resolution No. 1, 2 and 3 dated 26.06.98 and arrive at a conclusion as to whether the petitioners were appointed or not. With the above observation, this writ petition stands disposed of. The aforesaid exercise shall be completed within a period of 3 months from the date of receipt of a certified copy of this order.