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2018 DIGILAW 690 (GAU)

Anjali Dutta v. State of Assam

2018-04-23

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. R.K. Dutta, learned counsel for the petitioner and Ms. S Rasul, learned Standing Counsel for the Elementary Education Department. 2. The petitioner was appointed as an Assistant Teacher (Arts) in the Balijan Girls ME School on 08.08.2001, which was approved on 17.12.2002. On the other hand, one Smti Monoroma Gohain was also appointed as an Assistant Teacher in the said school on 01.01.1986. Apparently, going by the date of appointment, Monoroma Gogoi was senior to the petitioner and therefore, she may have been rightly provincialised when the concerned school was put under provincialisation under the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011. 3. Under the said Act, the concerned employees of the school were provincialised by an order dated 14.05.2013 w.e.f. 01.01.2013. The provincialisation of Monoroma Gogoi was assailed by the writ petitioner in a writ petition being WP (C) No. 2213/2014 on the premises that the age of Smti Monoroma Gogoi was incorrectly recorded to be 18 years 02 months as on 01.03.1973, whereas her actual age ought to have been 20 years 02 months as on 01.03.1973. In the event, the age of Monoroma Gogoi was 20 years 02 months as on 01.03.1973, she would have superannuated from service on 31.12.2012. Accordingly, Smti Monoroma Gogoi could not have been provincialised by an order of 14.05.2013 w.e.f. 01.01.2013. The said writ petition was disposed of by an order of 30.04.2014 requiring the Director of Elementary Education, Assam to cause an enquiry as regards the actual age of Smti Monoroma Gogoi. 4. Accordingly, by the order dated 15.05.2015, the Director arrived at a conclusion that the age of Monoroma Gogoi was 20 years 02 months as on 01.03.1973 and therefore, she ought to have been superannuated from service as on 31.12.2012. Consequent thereof, the Director passed an order for recovery of the excess salary paid to Monoroma Gogoi, but on the other hand, rejected the claim of the petitioner that it is the petitioner who ought to have been provincialised in place of Monoroma Gogoi. 5. The said order has been assailed in this writ petition. Consequent thereof, the Director passed an order for recovery of the excess salary paid to Monoroma Gogoi, but on the other hand, rejected the claim of the petitioner that it is the petitioner who ought to have been provincialised in place of Monoroma Gogoi. 5. The said order has been assailed in this writ petition. The prima-facie view of the Court is that in the event the age of Monoroma Gogoi was incorrectly recorded as 18 years 02 months as on 01.03.1973 instead of 20 years 02 months as on the said date, the said Monoroma Gogoi could not have been provincialised by the order dated 14.05.2013 w.e.f. 01.01.2013. In the event Smti Monoroma Gogoi could not have been provincialised, the next incumbent in order of seniority was the petitioner, who ought to have been provincialised. 6. In such view of the matter, the rejection of the claim of the petitioner by the Director is found to be unacceptable. Moreover, the Director fails to give any reason as to why he finds the claim of the petitioner to be unacceptable. On both the aforesaid circumstance, the order dated 15.05.2015 of the Director to the extent that the claim of the petitioner is found to be unacceptable is hereby set aside. 7. The matter is remanded back to the Director for a fresh consideration for considering the case of the petitioner for provincialisation without taking into account that Monoroma Gogoi was senior to the petitioner and had a better claim for provincialisation. In other words, the case of the petitioner be considered to be the next incumbent in order of seniority. 8. The aforesaid exercise be done by the Director within a period of three months from the date of receipt of a certified copy of this order. In terms of the above, the writ petition stands disposed of.