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2019 DIGILAW 1304 (GAU)

Nur Islam Sarkar v. State of Assam and Ors. Rep. By Commissioner and Secretary to Govt. of Assam, Education (Secondary) Department, Guwahati

2019-11-29

ACHINTYA MALLA BUJOR BARUA, NELSON SAILO

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JUDGMENT : A.M. Bujor Barua, J. Heard Mr. M. Khan, learned counsel for the appellant, MR. B. Talukdar, learned standing counsel for the Secondary Education Department and Mr. S.R Baruah, learned State Counsel appearing for the respondent Deputy Commissioner, Dhubri. 2. The appellant who is serving as a Lat-Mandal in the Revenue Department was nominated as the President of the SMDC of Sonaluguri High Madrassa as per the order dated 12.12.2016 of the Inspector of Schools, Dhubri. The notification of 12.12.2016 also states that he Government of Assam in the Secondary Education Department had approved the nomination of the appellant as the President by its communication dated 22.07.2016. By a later office order dated 22.06.2017, the nomination of the appellant as the President of the SMDC of Sonaluguri High Madrassa was cancelled. 3. Being aggrieved, the WP(C) No.3986/2016 was preferred assailing the order dated 22.06.2017, by which the nomination of the writ petitioner/appellant as the President stood cancelled as well as a letter dated 07.12.2016 of the Secretary to the Government of Assam in the Secondary Education Department. By the letter of 07.12.2016, it was provided that certain anomalies had been noticed in the selection of President/Vice-President of SMDC's of some schools, where serving officers, employees and teachers were selected as Presidents/Vice-Presidents. 4. Before the learned Single Judge, it was the contention of the appellant/writ petitioner that the constitution of the SMDC were notified as per notification dated 27.06.2016, wherein there is no such provision that serving officers, employees and teachers are ineligible for being nominated as President/Vice-President of SMDC's. A further contention was raised that the notification dated 27.06.2016 providing for the constitution of the SMDCs was as per the approval of the Governor, but the later communication dated 07.12.2016 does not bear any such approval. 5. The learned Single Judge by the judgment dated 21.10.2019 had dismissed the writ petition by arriving at its conclusion that the communication dated 07.12.2016 is clarificatory in nature and such clarification would not stand vitiated only because it was not issued in the name of the Governor, more so, when it was done after taking necessary approval of the competent authority as provided under the Rules of Business. 6. 6. The present appeal had been preferred against the judgment dated 21.10.2019 by reiterating the contention made before the learned Single Judge that the communication dated 07.12.2016 also ought to have been in the name of the Governor. 7. We have noticed that the notification dated 27.06.2016 itself was not in the name of the Governor, but it merely stated that the approval of the Governor was also taken. Further, we have also noted that the constitution of the SMDCs provided in the notification dated 27.06.2016 had not been altered or varied by the communication dated 07.12.2016 and the constitution provided had been retained. All that the communication of 07.12.2016 provides is a clarification that certain category of people would be ineligible to be nominated as the President/Vice-President of the SMDCs. No contention has been raised that the provisions of the clarification as regards the three categories of persons i.e. serving officers, employees and teachers is vitiated with any arbitrariness or unreasonableness or that it does not have any nexus with the object. 8. In view of the above, as no plea of arbitrariness or unreasonableness has been raised against the provisions that the above category of persons namely serving officers, employees and teachers are ineligible for the nomination as President/Vice-President of SMDCs, we feel that no interference is required in the judgment of the learned Single Judge. Accordingly, the writ appeal stands dismissed.