Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1078 (GAU)

Md. Fajal Uddin v. State of Assam

2018-07-23

ACHINTYA MALLA BUJOR BARUA, AJIT SINGH

body2018
JUDGMENT & ORDER : A.M. BUJOR BARUA, J. 1. Heard Mr. KM Mahanta, learned counsel for the appellant. Also heard Ms. P Chakraborty, learned Standing counsel, Education Department and Mr. MK Choudhury, learned Senior counsel assisted by Mr. M Sarma, learned counsel for the respondent No.8. 2. Both the appellant as well as the respondent No.8 were appointed by the resolutions of the Managing Committee dated 02.11.2007 of the Sutargaon Public High School. The respondent No.8 was appointed as per the resolution No.3 making the appointment w.e.f., 10.10.2007 in the vacant post of Assistant Teacher, which had arisen on the resignation of Md. Rakibul Islam, whereas the appellant was appointed as per resolution No.7 making the appointment w.e.f., 05.10.2007 against Section C of Class VIII. But the order dated 02.11.2007 of the Headmistress-cum-Secretary of the School shows that the respondent No.8 was temporarily appointed w.e.f. 10.12.2007 as per the meeting of the Managing Committee held on 02.11.2007. But the respondent No.8 joined his services as Assistant Teacher (Arts) on 09.12.2007. 3. Subsequently, the Managing Committee of the School adopted a resolution No.1 dated 02.03.2008, whereby it was resolved that the correct date of joining of the respondent No.8 as the 3rd Assistant Teacher was confirmed as 09.12.2007, whereas by resolution No.2 it was resolved that incorrect date of joining of the appellant which was 03.11.2007 stood corrected and the correct date of joining was confirmed as 01.01.2008. Again by the order dated 01.12.2008 of the Head-mistress-cum-Secretary of the School, the appellant was shown to be temporarily appointed w.e.f. 01.12.2008. 4. In the aforesaid confusing state of the facts, when the time came for sending the names of the teachers, who are to be provincialised under the Assam Venture Education Institutions(Provincialisation of Services) Act, 2011, (for short, Act of 2011) the name of the respondent No.8 was shown against the 3rd Assistant Teacher (Arts) of the School and his date of entry into service was shown as 10.12.2017 and that of the appellant was shown as the 4th teacher with his date of entry as 03.11.2007. The position of the appellant, vis-a-vis, the respondent No.8 in the list so sent assumes its relevance, inasmuch as, as per the schedule to the aforesaid Act of 2011, only three teachers (Arts) can be provincialised. The position of the appellant, vis-a-vis, the respondent No.8 in the list so sent assumes its relevance, inasmuch as, as per the schedule to the aforesaid Act of 2011, only three teachers (Arts) can be provincialised. Subsequently, a fresh proposal was sent by the Headmistress of the school on 05.10.2012, by which the appellant was shown as the 3rd Assistant Teacher in place of the respondent No.8 by showing his date of joining in school as 03.11.2007. 5. But, however, the authorities while proceeding with the process for provincialisation had entered the name of respondent No.8 as the 3rd Assistant Teacher, by excluding the appellant. Although representations were preferred by the appellant against such inclusion of the respondent No.8 and exclusion of the appellant, no positive result evolved, resulting in WP(C)No.5757/2012, wherein an interim order dated 05.12.2012 was passed. In the meantime, the teaching staff of the school preferred a writ petition being WP(C)No.6292/2012 seeking for a direction that the process of provincialisation should not be halted due to the pendency of the writ petition between the appellant and the respondent No.8. The said writ petition was disposed of by the order dated 20.12.2012 by providing that there shall not be a bar for the authorities from provincializing the services of the eligible teachers of the school, while further providing that the provincialisation of the post of 3rd Assistant Teacher (Arts) be kept in abeyance. 6. In the meantime, the authorities in the Education Department published the list of teaching and non-teaching staff of the school wherein the name of the respondent No.8 was included and the appellant was shown as an excess teacher. Alleging violation of the interim order of the Court, Cont. Case(C)No.79/2013 was filed by the appellant. The respondent in the Education Department issued a declaration that the respondent No.8 was senior to the appellant and was, therefore, eligible for provincialisation as the 3rd Assistant Teacher (Arts) and at the same time, the appellant was declared as the excess teacher. As a result, by the order dated 18.09.2013, the services of the respondent No.8 was provincialised as the 3rd Assistant Teacher (Arts). 7. Being aggrieved by the order dated 18.09.2013, the appellant preferred WP(C)No. 7469/2013. As a result, by the order dated 18.09.2013, the services of the respondent No.8 was provincialised as the 3rd Assistant Teacher (Arts). 7. Being aggrieved by the order dated 18.09.2013, the appellant preferred WP(C)No. 7469/2013. In WP(C)No. 7469/2013, an interim order dated 20.12.2013 was passed and a consequence thereof, the order dated 12.03.2014 was issued by the respondent authorities in the Education Department staying the orders dated 10.09.2013 and 18.09.2013 by which the respondent No.8 was provincialised. 8. In the meantime, the respondent No.8 preferred WP(C)No.2084/2014, assailing the order dated 12.03.2014, which again was stayed by an interim order dated 11.04.2014. All the three writ petitions were given a consideration by the Judgment and Order dated 23.04.2015. In the said Judgment, the learned Single Judge, took note of the statement by the Headmistress-cum-Secretary of the School that the subsequent correction of the date of entry into the services of the appellant was because of certain pressure being put upon her by the Inspector of Schools and further note was taken that the Inspector of Schools had not appropriately responded to such stand of the Headmistress. The stand of the Headmistress-cum-Secretary was accepted and the decision of the respondent authority in making the respondent No.8 senior to the appellant and further the declaration of the appellant as an excess teacher and also the consequential provincialisation of the services of the respondent No.8 was held to be arbitrary and vitiated due to non-application of mind. Accordingly, WP(C)No.7496/2012 was allowed and the order of the authorities dated 10.09.2013 declaring the respondent No.8 to be senior and the order dated 18.09.2013 provincialising the services of the respondent No.8 as the 3rd Assistant Teacher (Arts) were set aside. 9. Mandamus was also issued directing the respondent authorities in the Education Department to consider the case of the appellant for provincialisation against the post of 3rd Assistant Teacher (Arts). 10. Against the Judgment and Order dated 23.04.2015, a review being Review Petition No.76/2015 was preferred by respondent No.8. 11. In the review petition, the Inspector of School filed an affidavit denying the stand of the Headmistress-cum-Secretary that the subsequent correction of the date of entry of the appellant was done at his interference. The review petition was given a final consideration by the Judgment and Order dated 06.03.2017. 12. 11. In the review petition, the Inspector of School filed an affidavit denying the stand of the Headmistress-cum-Secretary that the subsequent correction of the date of entry of the appellant was done at his interference. The review petition was given a final consideration by the Judgment and Order dated 06.03.2017. 12. While exercising its review jurisdiction, the learned Single Judge had taken note of the affidavit filed by the Inspector, wherein, a categorical stand was taken that he had never issued any instruction to the Headmistress-cum-Secretary of the school for manipulating the records as regards the date on which the appellant had entered the service. According to the learned Single Judge exercising the review jurisdiction, the earlier Judgment dated 23.04.2015 passed in favour of the appellant was made on the consideration that a stand was taken by the Headmistress-cum-Secretary of the school that the date of entry of service of the appellant was changed at the instance of the Inspector and further that the Inspector had not denied the said stand of the Headmistress-cum-Secretary. Therefore as the Inspector has now taken a definite stand in the review petition, the very basis of the learned Single Judge to decide in favour of the appellant no longer exists. The learned Single Judge exercising the review jurisdiction also relied upon the pronouncement of the Hon’ble Supreme Court in Kamlesh Verma Vs. Mayawati & Ors., reported in ( 2013) 8 SCC 320 and as explained in Chhajju Ram Vs. Neki reported in AIR 1922 PC 112 and Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius reported in AIR 1954 SC 526 to conclude that any other sufficient reason would also be a relevant consideration for reviewing the earlier order. According to the learned Single Judge exercising the review jurisdiction, the fact that the Inspector had taken a categorical stand that he had not instructed the Headmistress-cum-Secretary to manipulate the date on which the appellant was inducted in service, constitutes a sufficient reason for recalling earlier Judgment and Order dated 23.04.2015. Accordingly, the review petition was allowed and the Judgment and Order dated 23.04.2015 was recalled. The fact of recalling the earlier Judgment and Order dated 23.04.2015 would be that the writ petition being WP(C) No.5757/2012, WP(C) 7496/2013 and WP(C) 2084/2014 would now be heard afresh. 13. Accordingly, the review petition was allowed and the Judgment and Order dated 23.04.2015 was recalled. The fact of recalling the earlier Judgment and Order dated 23.04.2015 would be that the writ petition being WP(C) No.5757/2012, WP(C) 7496/2013 and WP(C) 2084/2014 would now be heard afresh. 13. Being aggrieved by the Judgment and Order dated 06.03.2017 in Review Petition No.76/2015, the present appeal has been preferred. In the appeal, the appellant takes a ground that the stand of the Inspector being not on record at the time of deciding the aforesaid writ petition, the same could not have been made the basis for allowing the review petition. A further ground has been taken that the learned Single Judge while deciding the writ petition had examined the correctness of the relevant document by which the benefit of provincialisation was given to the respondent No.8 and had given its finding by citing the reason thereof. Therefore, if the learned Single Judge exercising the review jurisdiction was not in agreement with the said reasoning given by the learned Single Judge while deciding the writ petition, the same could not have been a reason for a review and recall of the earlier judgment. A ground has also been taken that the learned Single Judge exercising the review jurisdiction had also misconstrued and misinterpreted the expression any other sufficient reason’ and in doing so, had transgressed the dividing line between grounds of appeal and the grounds of review. 14. In course of hearing of the appeal, it is taken note of that the core contention of the parties for decision is as to whether the appellant or the respondent No.8 is senior in service. Depending on the decision as to who amongst the two would be senior, a further requirement would be a writ in the nature of mandamus directing the respondent authorities to provincialise the service of either the appellant or the respondent No.8 as the 3rd Assistant Teacher of the school. 15. As regards the question as to who between the appellant or the respondent No.8 is senior in service would have to be based upon their respective dates of entry into service. It has already been indicated that the facts leading to their appointment are so confusing and without any clarity that if an attempt would be made to determine the same, still there remains the possibility of an incorrectness creeping in. It has already been indicated that the facts leading to their appointment are so confusing and without any clarity that if an attempt would be made to determine the same, still there remains the possibility of an incorrectness creeping in. It is again taken note of that both the appellant as well as the respondent No.8 were initially appointed as per the resolution No.3 and 7 respectively of the Managing Committee of the school dated 02.11.2007 where the resolution No.3 in respect of the respondent No.8 states that he was appointed w.e.f. 10.10.2007 whereas, the order of the Headmistress-cum-Secretary dated 02.11.2007 states that he was appointed w.e.f. 10.12.2007, but in respect of the appellant, the resolution No.7 dated 02.11.2007 states that he was appointed w.e.f. 05.10.2007, whereas a subsequent order of the Managing Committee dated 02.03.2008 states that he was appointed w.e.f. 01.01.2008. A further factor to aggravate the confusion is that on one hand, the Headmistress-cum- Secretary takes a stand that the date of appointment of the appellant was put to a variance at the instance of the Inspector of School, whereas, the Inspector takes a stand that there was no such interference. 16. The aforesaid state of confusion makes it indeterminable on the basis of the present materials being produced as to who between the appellant and the respondent No.8 is senior. A further fact to be taken note of is that by the Judgment and Order dated 23.09.2016 in WP(C) No. 3190/2012 the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 (in short Act of 2011) has been declared to be ultra vires. In view of the aspect that a writ of mandamus is also been sought for as regards who between the appellant and the respondent No.8 is to be provincialised, which apparently would be a mandamus for provincialisation under the Act of 2011, and as the Act of 2011 has been declared to be ultra vires, therefore, no such mandamus can be issued under the present situation. It is also taken note of that upon the Act of 2011 being declared ultra vires, the Assam Education (Provincialisation) of Services of Teachers and Re-Organization of Educational Institution Act, 2017 (in short Act of 2017) has been enacted and under Section 24 of the Act of 2017, the authorities in the Education Department are empowered to review any particular case where provincialisation had earlier been made under the Act of 2011 in an incorrect manner. Further Section 13(6) of the Act of 2017 provides that further regularization of all such eligible teachers would also be given a consideration. A distinguishing feature between the Act of 2011 and the Act of 2017 is that under Act of 2011, only a limited number of teachers in a particular category can be provincialised, whereas under the Act of 2017 there is no such limit and all such eligible teachers can be taken up for consideration for provincialisation. 17. In view of the provisions of 13(6), the issue as regards the seniority between the appellant and the respondent No.8 has lost its relevance as their provincialisation does not any further depend as to who between the two is senior and, if otherwise eligible, under Section 13(6) of the Act of 2017, both the appellant and the respondent No.8 can be given a consideration for provincialisation. 18. In view of the above, this Court is of the view that instead of making an attempt to decide the seniority aspect between the appellant and the respondent No.8 and, that too, for a factual cause for which no further mandamus can be issued for their provincialisation under the Act of 2011, the interest of justice between the parties would be more served, if the respondent authorities are directed to give consideration to the claim for provincialisation of both the appellant as well as the respondent No.8 as per their respective eligibilities under Section 13(6) of the Act of 2017. A direction to the said effect is accordingly issued and their respective cases would now be taken up for consideration as and when the authorities in the Education do take it up for consideration under the Act of 2017. But however the same be done as expeditiously as possible, preferably within a period of four months from the date of receipt of the certified copy of the order. 19. But however the same be done as expeditiously as possible, preferably within a period of four months from the date of receipt of the certified copy of the order. 19. The appeal is disposed of in the above terms.