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2018 DIGILAW 1411 (GAU)

Mehbub Ahmed Laskar v. State of Assam

2018-09-21

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Heard Mr. S.K. Talukdar, the learned counsel for the petitioner as well as Mr. B.D. Das, the learned Senior Counsel assisted by Mr. R.A. Chouhdury, the learned counsel for the respondent No.6. Mr. S.P. Bhattacharjee, the learned Standing Counsel, Elementary Education Department appears for the respondent Nos. 1, 2, 4 & 5 and Mr. M.R. Adhikari, the learned Government Advocate appears for the respondent No.3. 2. Facts of the case in brief may be narrated at the outset. The petitioner is a Sub-Inspector of Schools and he was transferred to Hailakandi on 02.03.2017 vice to Sri Sailen Kumar Roy. The petitioner joined his place of posting on 06.03.2017. Thereafter, the transfer order was challenged by Mr. Sailen Kumar Roy by filing WP(C) No.1495 of 2017, but however, the same was dismissed by this Court vide order dated 18.04.2017. 3. The petitioner is currently serving as Sub-Inspector of Schools, Katlicherra-II under order dated 27.10.2017 issued by the Deputy Inspector of Schools, Hailakandi. By the same order one Sri Badrul Islam Choudhury, Sub-Inspector of Schools was entrusted with Khatlicherra-I under the Katlicherra Educational Block. However, Sri Badrul Islam Choudhury was placed under suspension vide order dated 18.12.2017 by the Director of Elementary Education, Assam and thereafter, vide order dated 29.12.2017 issued by the Deputy Inspector of Schools, Hailakandi, the petitioner was allowed to look after Katlicherra-I Circle. Thus, since 29.12.2017 the petitioner is under the charge of both the Katlicherra - I & II Circles. 4. In absence of Block Elementary Education Officer (BEEO), the Deputy Inspector of Schools, Hailakandi, is presently holding the charge of Katlicherra Block. The petitioner thereafter, submitted a petition before the Director of Elementary Education on 03.01.2018 to allow him for the charge of BEEO of Katlicherra Block till a regular incumbent is posted. Acting on the petition of the petitioner, the Director of Elementary Education vide letter dated 12.01.2018 forwarded a proposal to the Commissioner and Secretary to the Government of Assam, Elementary Education Department. In the meantime, the respondent No.6 who was serving as Sub-Inspector of Schools of Lala Block submitted a similar petition on 04.01.2018 to the Deputy Commissioner, Education Department as well. According to the petitioner, in terms of the notification dated 23.07.2015, he is the senior-most Sub-Inspector of the Schools of Katlicherra Block and was expecting to be appointed as BEEO at Katlicherra Block. According to the petitioner, in terms of the notification dated 23.07.2015, he is the senior-most Sub-Inspector of the Schools of Katlicherra Block and was expecting to be appointed as BEEO at Katlicherra Block. Since the respondent No. 6 by exerting pressure through the Deputy Commissioner, Hailakandi, caused the issuance of order dated 06.02.2018 allowing him to hold the charge of Katlicherra Block, which was issued by the Commissioner and Secretary to the Government of Assam, Elementary Education Department (the respondent No.1 herein). The petitioner challenges the arrangement on the ground that the respondent No.6 is serving as Sub-Inspector of Schools at Lala Block and therefore, he could not have been given the charge of BEEO at Katlicherra Block, which is a separate Block. 5. This Court on 26.02.2018 while issuing notice to the respondents stayed the operation of the order dated 06.02.2018. The respondent No.6 prior to issuance of the notice had filed a caveat i.e. caveat application No.138 of 2018. Despite filing the caveat, the respondent No.6 was not represented by his counsel on 26.02.2018. Thereafter, in view of the stay order passed, I.A.(C) No. 717 of 2018 was filed by the respondent No.6. Since the respondent No.6 is already represented by Mr. B.D. Das, the learned Senior Counsel, caveat stands discharged. 6. Assailing the order dated 06.02.2018, Mr. S.K. Talukdar, the learned counsel for the petitioner, submits that the impugned order has not been issued in public interest. It is also in violation of the order passed by the Division Bench of this Court vide judgment and order dated 12.12.2017 in Writ Appeal No.91 of 2017. He submits that the Division Bench directed that the appellant therein being senior to the respondent No.7 should be allowed to function as In-charge of BEEO of Lala Educational Block, Hailakandi. Similarly, the petitioner in the instant case being the senior-most under the Katlicherra Block, he should be allowed to the post of In-charge of Katlicherra Block. To substantiate that the petitioner is the senior-most, the learned counsel refers to the notification dated 23.07.2015 issued by the Director of Elementary Education, Assam and the communication dated 05.08.2016 issued by the Finance Department which are annexed in the writ petition as Annexures-7 & 8 respectively. The learned counsel submits that the impugned order dated 06.02.2018 also demonstrates non application of mind as no justification is made for taking such a decision. The learned counsel submits that the impugned order dated 06.02.2018 also demonstrates non application of mind as no justification is made for taking such a decision. He submits that the petitioner being the senior-most Sub-Inspector of Schools in the Block concerned, the respondent No.6 who was similarly functioning in Lala Block cannot be made the BEEO in Katlicherra Block. Therefore, the impugned order dated 06.02.2018 is not sustainable in law. In support of his submission the learned counsel refers to a decision of the Apex Court rendered in the case of CM Thri Vikrama Varma vs. Avinash Mohanty and Others, (2011) 7 SCC 385 . 7. Appearing for the respondent No.6, Mr. B.D. Das, the learned Senior Counsel submits that the petitioner in this writ petition has projected that the sitting MLA of Hailakandi being related to the respondent No.6 has influenced the respondent authorities in passing the impugned order dated 06.02.2018. But, however, the petitioner has not arrayed the MLA concerned as a party respondent and therefore, the contention of the petitioner of his involvement is untenable. He further submits that merely forwarding the application cannot mean that the Deputy Commissioner has interfered with the posting of an Education Officer. The petitioner otherwise is junior to the respondent No.6 in the post of Sub-Inspector of Schools and there is nothing wrong in the decision taken by the appropriate authority to place the charge of BEEO Katlicherra under the respondent No.6. Mr. S.P. Bhattacharjee, the learned Standing Counsel, Elementary Education Department, by referring to the affidavit-in-opposition filed by the respondent No.1 on 19.06.2018 submits that the respondent No.6 has been entrusted with the duty of Sub-inspector of Schools for the clusters under Katlicherra Educational Block in addition to the cluster allotted to the Lala Educational Block vide impugned order dated 02.01.2018. This, in fact, is only a temporary arrangement till joining of a Sub-Inspector of Schools at Katlicherra Educational Block. He also contends the fact that there is no involvement or influence by any political leader or MLA in passing the impugned order dated 06.02.2018. 8. I have heard the learned counsel for the rival parties and I have perused the materials available on record. 9. The question to be decided as to whether the impugned order dated 06.02.2018 is sustainable. 8. I have heard the learned counsel for the rival parties and I have perused the materials available on record. 9. The question to be decided as to whether the impugned order dated 06.02.2018 is sustainable. The undisputed fact is that the post of BEEO of Katlicherra Block does not have a regular incumbent manning the post and therefore, the Deputy Inspector of Schools, Hailakandi was holding the charge. Against the 2 applications submitted by the petitioner and the respondent No.6, the respondent authority decided to give the charge to the respondent No.6 by the impugned order dated 06.02.2018. As may be noticed, the impugned argument is only temporary in nature. In a case of transfer and posting of an officer to hold the charge of a certain post, Court has limited role to play. It is for the State authorities to decide as to who should man at particular post. It is true that the seniority of the contender concerned will be one of the guiding factor to decide as to who should be kept as in-charge of a particular post. However, such arrangements generally being only temporary, it cannot be said that seniority alone is to be accounted in all cases. Although, the respondent No.6 is a Sub-Inspector of Schools of Lala Block but, at the same time, he has been entrusted to perform his duties for certain clusters under Katlicherra-II. Therefore, allowing him to hold the charge of BEEO at Katlicherra Educational Block cannot be said to be mis-placed. 10. The petitioner has also alleged the involvement of the sitting MLA of Hailakandi in issuance of the impugned order dated 06.02.2018. In this connection, it may be stated herein that the allegation of malafide has to be specifically pleaded and the person concerned should be made a party to such proceeding. In the present case, the essential ingredients for taking the stand that there was malafide in issuing the impugned order dated 06.02.2018 is not found. Therefore, I am not inclined to entertain the plea of malafide. 11. Thus, upon considering the case in its entirety and under the facts and circumstances, I do not find any merit in the writ petition and the same is dismissed. 12. Therefore, I am not inclined to entertain the plea of malafide. 11. Thus, upon considering the case in its entirety and under the facts and circumstances, I do not find any merit in the writ petition and the same is dismissed. 12. However, while dismissing the writ petition I find it necessary to also observe herein that the post of BEEO, Katlicherra Educational Block, being an important post with financial powers under the Fundamental Rules and other relevant guidelines attached to it, it will not be desirable for the post to be manned by an Officer only on in-charge basis. Therefore, it will be incumbent on the part of the respondent authorities to fill up the post on a regular basis. 13. With the above observation, the writ petition stands disposed of. The interim order passed on 26.02.2018 stands vacated. Interlocutory Application (C) No.717 of 2018 also stands disposed of.