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2018 DIGILAW 1206 (GAU)

Harkhali Yadav v. State of Assam

2018-08-16

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. S. Biswas, learned counsel for the petitioner. Also heard Mr. J. Abedin, learned standing counsel for the Elementary Education Department. 2. The petitioner was initially appointed temporarily as an Assistant Teacher in Sainik Colony Hindi L.P. School in Jogighopa, Bongaigaon by the order dated 08.03.1983, and thereupon by various appointment orders the petitioner continued to remain appointed and engaged as an Assistant Teacher in Hindi in different schools. 3. In the resultant situation, the petitioner approached this Court by way of a writ petition which was numbered as Civil Rule No.882/1994, which was disposed of by the order dated 17.01.1995. The order of 17.01.1995 inter alia provides as under:- "Having heard the learned counsel for the parties, I dispose of this writ petition with the direction that the respondent No.3, the Deputy Inspector of Schools, Bongaigaon, shall make an enquiry as to whether the petitioner had been working as Assistant Teacher in different Hindi medium L.P. Schools for 10 years and consider his case sympathetically for regular appointment and absorption and pass appropriate orders within 2 months, if he is found qualified and fulfilled the requirements under the Rule." 4. The purport of the order dated 17.01.1995 is that the Deputy Inspector of School would make an enquiry as to whether the petitioner was working as an Assistant Teacher in different Hindi Medium L.P. School for ten years and if yes, to consider his case sympathetically for a regular appointment. The said order dated 17.01.1995 has attained its finality in the meantime. Thereupon, various correspondence were made between the petitioner and the respondents, ultimately resulting in a report dated 19.02.2016 of the District Elementary Education Officer, (DEEO) Bongaigaon to the Director of Elementary Education, Assam. Prior to the said report, there was an earlier report dated 27.09.2011 of the Deputy Inspector of School, Bongaigaon, wherein, a chronological dates of engagement of the petitioner for 20 years had been provided and the said chronological date indicates that the petitioner was in continuous appointment from 1983 onwards. 5. The report dated 19.02.2016 of the DEEO states that the petitioner had been working w.e.f. 08.03.1983 till date. The said report was pursuant to the requirement of the order dated 17.01.1995 in CR No.882/1994 which had attained finality in the meantime. 5. The report dated 19.02.2016 of the DEEO states that the petitioner had been working w.e.f. 08.03.1983 till date. The said report was pursuant to the requirement of the order dated 17.01.1995 in CR No.882/1994 which had attained finality in the meantime. It is also to be taken note of that the petitioner had participated in the selection process for regular appointment which was held in the year 1986 and in the select list which is annexed as Annexure-3 to the writ petition indicates that the petitioner was selected being at Serial No.101 and that candidates below the petitioner in the select list were also appointed. In the report dated 19.02.2016, the DEEO states that although the petitioner was selected by the Advisory Board in 1986 and he being at Serial No.101, but was not appointed as there was no vacant post at 291 No. Rastravhasa Vidyamandir L.P. School. The said select list being a general select list does not indicate as to how the authorities confined the consideration only to 291 No. Rastravhasa Vidyamandir L.P. School and not against the vacant posts that were available at that relevant point of time. Pursuant to the said report of the DEEO, the Director of Elementary Education passed the order dated 10.03.2016, which has been assailed in this writ petition. Although, the order refers to the order dated 17.01.1995 in CR No.882/1994, meaning thereby that the Director had passed the order in compliance of the requirement of the order dated 17.01.1995 of this Court, but in the findings recorded by the Director, there is no reference either to the requirement or to the compliance of the order dated 17.01.1995. The Director goes out of way and refers to Office Memorandum dated 24.01.2004 and arrives at a conclusion that the said Office Memorandum states that there is no power of the Managing Committee to appoint teacher on honorary basis. 6. This Court does not find any relevance of the Office Memorandum dated 24.01.2004, inasmuch as, the order in favour of the petitioner was passed by this Court much earlier i.e. on 17.01.1995 and therefore, in compliance of that order, no reliance can be made to a subsequent Office Memorandum dated 24.01.2004. 6. This Court does not find any relevance of the Office Memorandum dated 24.01.2004, inasmuch as, the order in favour of the petitioner was passed by this Court much earlier i.e. on 17.01.1995 and therefore, in compliance of that order, no reliance can be made to a subsequent Office Memorandum dated 24.01.2004. The order dated 17.01.1995 having attained its finality crystallizes the right of the petitioner as provided therein and therefore when the Director considers compliance of the order, it has to be restricted to the provision of the order itself and not to any subsequent Office Memorandum or instruction that the Government may have issued in the meantime. Secondly, the Director also arrived at a conclusion that although the petitioner was working in different schools against leave vacancies but such engagements were not continuous. The said conclusion also appears to be in conflict with the report of the DEEO 19.02.2016, which says that the petitioner had been working w.e.f. 08.03.1983 till date as well as with the report of the Deputy Inspector of School dated 27.09.2011 which shows that the petitioner had been in continuous engagement from the year 1983. 7. For both the reasons as stated above, the order of the Director dated 10.03.2016 is found to be unsustainable and accordingly the order is hereby set aside. As agreed by the parties and in view of the entitlement of the petitioner as indicated above, the Commissioner & Secretary to the Govt. of Assam in the Elementary Education Department shall consider the claim keeping in mind the order of this Court dated 17.01.1995 and the select list of 1986 annexed as Annexure 3 to the writ petition as well as the report of the DEEO dated 19.02.2016 and pass a reasoned order thereon. 8. The aforesaid requirement by the Commissioner shall be completed within a period of two months from the date of receipt of the certified copy of the order. In doing so, the Commissioner shall give an opportunity of hearing to the petitioner and allow him to produce any material that he may desire to produce. Writ petition is accordingly disposed of.