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2018 DIGILAW 423 (GAU)

Sabir Ahmed v. State of Assam

2018-03-09

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. S.B Laskar, learned counsel for the petitioners and Mr. J. Abedin, learned Standing Counsel for the Education Department both Elementary and Secondary. 2. The petitioners herein being two in number are Assistant Teachers of Puran Chandpur Pre-Senior Madrassa in the Karimganj district and they appeared in the First Year D.EL.ED examination 2016 conducted by the Krishna Kanta Handique State Open University. The said examination was held between 19.05.2017 and 04.06.2017. There are certain allegations that while undertaking the said examination, some unfair means were adopted by the petitioners. But the petitioners denied such allegations. Consequent thereof, by the impugned order of 04.09.2017, the petitioners along with 23 other persons were placed under suspension. 3. It is taken note of that the said order of suspension was issued by the Director of Elementary Education, Assam. It is the case of the petitioners that their services were earlier under the Directorate of Madrassa Education, but after the merger of the Directorate of Madrassa Education with the Directorate of Secondary Education on and from 01.07.2017, their services are now under the Directorate of Secondary Education. Accordingly, it is the contention of the petitioners that he Director of Elementary Education not being the disciplinary authority, has no jurisdiction to pass the order of suspension. 4. Mr. J. Abedin, learned Standing Counsel for both the Education Department takes a stand that the D.EL.ED examination, which the petitioners had undertaken, where the alleged unfair means were adopted, was conducted under the Director of Elementary Education, Assam and therefore, the Government had instructed the Director of Elementary Education to take appropriate measures against the petitioners. 5. The law regarding suspension is provided in Rule-6 of the Assam Services (Discipline and Appeal) Rules, 1964, which provides that the appointing authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Government servant under suspension. In the instant case, the Director of Elementary Education is neither the appointing authority nor an authority which is subordinate to the appointing authority and neither the said authority had been empowered by the Governor of Assam to place the petitioners under suspension. 6. In the instant case, the Director of Elementary Education is neither the appointing authority nor an authority which is subordinate to the appointing authority and neither the said authority had been empowered by the Governor of Assam to place the petitioners under suspension. 6. In view of the above, irrespective of the desirability to main the order of suspension, an authority other than the appointing authority or any of the authorities prescribed under the aforesaid Rule-6, cannot place an employee under suspension merely because the Government for its own reason had required the other authority to do so. 7. In such view of the mater, the order of suspension dated 04.09.2017 in respect of the two petitioners is held to be unsustainable. Accordingly, the order of suspension dated 04.09.2017 in respect of the two petitioners namely Sabir Ahmed and Taj Uddin Ahmed is hereby set aside. However, it is provided that as the orders have been interfered on the ground that because of some intervening circumstance, the authorities prescribed under Rule-6 of the Assam Services (Discipline and Appeal) Rules, 1964 had not passed the order of suspension, therefore, it is provided that interference of this Court shall not preclude the respondent authorities from proceeding against the petitioners by following the due procedure of law, if so desired. In terms of the above, the writ petition stands disposed of.