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2019 DIGILAW 33 (GAU)

Mousumi Mazumdar v. State of Assam

2019-01-11

SANJAY KUMAR MEDHI

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JUDGMENT : SANJAY KUMAR MEDHI, J. 1. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the continuance of service by the respondent No. 7 as Assistant Teacher in the Akabasti M.E. School as her appointment was earlier cancelled by the District Elementary Education Officer, Sonitpur vide order dated 17.11.2011. The petitioner claims to be eligible and qualified for appointment into the same post and by the impugned action, she has been deprived of the opportunity of such appointment. It is also pleaded that nepotism and favouritism had play a role and there has been misappropriation of an amount of Rs. 1.52 Lakhs in the name of arrear salaries. The petitioner accordingly prays for appropriate direction for redressal of the grievances, mentioned above. 2. I have heard Shri A. Ganguli, learned counsel for the petitioner; Shri N. Sarma, learned standing counsel, Elementary Education Department; Ms. M.D. Bora, learned State counsel; Shri R. Sarma, learned counsel for the respondent No. 6; Shri T.J. Mahanta, learned senior counsel for the respondent No. 7 and Shri S. Sarma, learned counsel for the Sarva Shiksha Mission, which was impleaded as respondent No. 8 during the pendency of this proceeding. The learned counsel for the parties have also filed written submissions which have been duly considered. 3. The brief facts of the case can be put in a nutshell as follows: 4. The petitioner claims to be a candidate who is qualified to hold the post of an Assistant Teacher in a provincialised school hailing from the district of Sonitpur. Apart from the other educational qualifications, the petitioner also claims to have qualified in the Teachers Eligibility Test (TET) in January, 2012. The school in question where the facts of the case revolves is the Akabasti M.E. School in the district of Sonitpur. The said school was setup in the year 1986 and was subsequently granted permission and thereafter recognized by the Education Department of the State Government in the year 1992. The Department made physical inspection of the school with the purpose of grant of financial assistance and the last inspection was done on 21.06.2011, whereafter, a list of teaching and non-teaching staff was prepared. It is the case of the petitioner that in the said list, the name of the private respondent No. 7 did not figured. 5. The Department made physical inspection of the school with the purpose of grant of financial assistance and the last inspection was done on 21.06.2011, whereafter, a list of teaching and non-teaching staff was prepared. It is the case of the petitioner that in the said list, the name of the private respondent No. 7 did not figured. 5. The founder headmaster of the school had expired on 04.07.2011, giving rise to one vacancy in the post of Assistant Teacher. Though the petitioner claims to have applied for the said post, the applications were not accepted and on the other hand, the respondent No. 7 was inducted into the service without giving equal opportunities to other eligible candidates. It has been pleaded that the said respondent No. 7 is the wife of the headmaster. 6. The further case of the petitioner is that the aforesaid induction of the respondent No. 7 led to public resentment culminating into an enquiry by the District Elementary Education Officer, whereafter, the appointment of the respondent No. 7 was cancelled vide order dated 17.11.2011. After such cancellation, a list was prepared by the Director of Elementary Education, Assam on 14.05.2013, for the purpose of provincialisation and the said list did not contained the name of the respondent No. 7. The petitioner, however, stated that by manipulating the District Information System for Education (DISE) list of the school for the year 2011-12, the name of the respondent No. 7 was put against serial No. 5, whereby, the said respondent No. 7 was given the benefit of public employment by illegal means. It is the further case of the petitioner that the said respondent No. 7 had also managed to obtain an amount of Rs. 1.52 Lakhs as arrear salaries which could be done in collusion with the headmaster. 7. Shri A. Ganguli, learned counsel for the petitioner, submits that under the aforesaid facts and circumstances, intervention of this Court in exercise of powers under Article 226 of the Constitution of India is very much warranted. Shri Ganguly also submits that though the writ of quo warranto is not specifically pleaded in the instant writ petition, this Court under Article 226 of the Constitution of India, in an appropriate case can mould the relief by invoking an appropriate writ. Shri Ganguly also submits that though the writ of quo warranto is not specifically pleaded in the instant writ petition, this Court under Article 226 of the Constitution of India, in an appropriate case can mould the relief by invoking an appropriate writ. The learned counsel had relied upon a judgment of the Hon'ble Supreme Court reported in (2013) 1 SCC 501 (Rajesh Awasthi Vs. Nandlal Jaiswal & Ors.), wherein, the following observation was made- "...it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorized to hold the same as per law..." The Apex Court relied upon the judgment of the Constitutional bench in the University of Mysore & Anr. Vs. C.D. Govinda Rao & Anr. Reported at AIR 1965 SC 491 . 8. Referring to the Annexure 1, which is the inspection list dated 21.06.2011, Shri Ganguli, learned counsel, submits that absence of the name of the respondent No. 7 in the said list is prima facie demonstrative of the fact that the said respondent No. 7 was not in service. Further, referring to Annexure 6, which is provincialization list dated 14.05.2013, the post of the second Assistant Teacher was shown to be vacant and therefore, the allegation of manipulation in the DISE list for the academic year 2011-12 becomes apparent. 9. On the other hand, Shri N. Sarma, learned standing counsel for the Elementary Education Department, while defending the appointment of respondent No. 7, submits that there is no illegality in the process and the facts pleaded by the petitioners being disputed, this Court under Article 226 of the Constitution of India may not be an appropriate forum for redressal of the grievances. 10. Endorsing the submissions of the learned standing counsel for the Elementary Education Department, Shri T.J. Mahanta, learned senior counsel appearing on behalf of the respondent No. 7, questions the very locus of the petitioner to institute and maintain the present writ petition. 10. Endorsing the submissions of the learned standing counsel for the Elementary Education Department, Shri T.J. Mahanta, learned senior counsel appearing on behalf of the respondent No. 7, questions the very locus of the petitioner to institute and maintain the present writ petition. Shri Mahanta, learned senior counsel contends that the petitioner was nowhere in the picture and only after the provincialization of the service of the existing staff including that of his client that she sprang into action by noticing that benefits would accrue to the incumbents upon provincialization of the school in question. The learned senior counsel further submits that in absence of a specific prayer to invoke the writ of quo warranto, this Court on its own would not undertake the said exercise. As regards the allegations that the respondent No. 7 is the wife of the headmaster, the learned senior counsel categorically refutes the same and submits that false statement has been made in the writ petition to unduly influence this Court in adjudicating the lis. Shri Mahanta, learned senior counsel, fully justifies the receipt of the amount of Rs. 1.52 Lakhs as that was the arrear salaries which the respondent No. 7 is otherwise entitled to. 11. Shri S. Sarma, learned standing counsel, Sarva Shiksha Mission, submits that the case projected by the petitioner does not appear to be correct and therefore, the writ petition ought to be dismissed. 12. Shri R. Sarma, learned counsel for the respondent No. 6, headmaster, endorses the arguments and submissions of the respective counsels for the respondents and has also produced the records of the case in original. He argues that the writ petition is bad in law as the petitioner has not challenged the order of provincialization of the respondent No. 7 and also her initial appointment as Assistant Teacher made by the school managing committee. As regards the allegation of misappropriation, the learned counsel for the respondent No. 6 submits that the amount in question was due to the respondent No. 7 as arrear salaries and there is no illegality in the same. As regards the allegation of misappropriation, the learned counsel for the respondent No. 6 submits that the amount in question was due to the respondent No. 7 as arrear salaries and there is no illegality in the same. As regards non-availability of the name of the respondent No. 7 in the list prepared prior to 2011-12, Shri Sarma has submitted that the appointment of the respondent No. 7 being as a third Assistant Teacher and the services of only two Assistant Teachers being provincialized under the Act of 2011, her name was not reflected. However, on upgradation of the respondent to the position of second Assistant Teacher vide resolution dated 08.07.2011, her name was duly inserted. In reply, Shri A. Ganguly, learned counsel for the petitioner, however, admits that there may be a mistake in describing the respondent No. 7 to be the wife of the headmaster. However he submits that even otherwise, the challenge made in the writ petition is maintainable. 13. On 11.12.2018, in the course of hearing of this matter, the photocopies of the attendance register of the school in question were produced and noticing certain anomalies, the original records were directed to be produced which was accordingly done by Shri R. Sarma, learned counsel for the respondent No. 6. 14. The facts and the materials on records prima facie show that as on 21.06.2011, when the list was prepared for the purpose of financial assistance, the respondent No. 7 was not in service. The said respondent while dealing with the aforesaid averment in paragraph 4 of her affidavit-in-opposition has simply stated that the aforesaid facts are matters on records. The said respondent No. 7 was inducted in the school with effect from 02.08.2011 and the connected resolution No. 1, dated 15.07.2011, was approved by the District Elementary Education Officer. The said arrangement being cancelled vide order dated 17.11.2011, by the District Elementary Education Officer, the consequential order of provincialization of the school, dated 14.05.2013, did not contained the name of the respondent No. 7 and infact, against the serial No. 3, the remark was "vacant". That being so, it is failed to be understood as to how the name of the respondent No. 7 could be inducted in the DISE list for the year 2011-12 that too by inserting her name by hand. That being so, it is failed to be understood as to how the name of the respondent No. 7 could be inducted in the DISE list for the year 2011-12 that too by inserting her name by hand. It is seen from the DISE list annexed at page 28 of the writ petition that apart from inserting the name of the respondent No. 7 by hand, there were overwriting which gives rise to grave suspicion in the action of the respondent authorities. No explanation had come as to why her name had to be inserted by hand and why the over writings were there in certain figures which did not even contain any endorsement/signature. In the said list at page 28, two more names appear after that of the respondent No. 7 whose date of joinings are however prior to that of the respondent No. 7, namely, 2004-05 respectively. Regarding the aforesaid anomalies, Shri Sarma, learned counsel has submitted that the school was in the venture stage and the authority was not well acquainted with the procedure and maintenance of the records and since most of the office bearers of the school were uneducated, inadvertent mistake may have occurred. 15. The perusal of the records in original which have been produced by the learned counsel appearing on behalf of the headmaster, more specifically the Teacher Attendance Register, shows glaring anomalies. From August 2006, when the service of the respondent No. 7 is projected to have been utilised as an Assistant Teacher by the respondents, her name has been separately written by bisecting a particular column between two teachers. That apart, there are overwritings in her name as well as use of whitener. Shri R. Sarma, learned counsel for the headmaster, tried to justify that the same had to be done due to want of space as the last column was of a non-teaching staff. However, it is seen that the register itself is a "teacher attendance" register and not for non-teaching staff and therefore, the aforesaid explanation does not appear to be convincing at all. 16. However, it is seen that the register itself is a "teacher attendance" register and not for non-teaching staff and therefore, the aforesaid explanation does not appear to be convincing at all. 16. Though it is a settled position that a Writ Court would not embark itself to make a roving enquiry into disputed questions of fact, but if anomalies which are glaring in nature, are brought to the notice of this Court, it cannot remain a silent spectator, more so, when it is connected to public employment. The technical objection of not praying for an appropriate writ would perhaps not come into the way for granting the appropriate relief which a party has been able to make out. In this connection, one may gainfully refer to the oft quoted judgment of the Hon'ble Supreme Court in the case of Dwarka Nath Vs. ITO reported in AIR 1966 SC 81 , wherein the Apex Court held as follows- "Article 226 of the Constitution...is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice where ever it is found....That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country..." 17. In view of the aforesaid discussions and on consideration of the materials on record, this writ petition is allowed by holding that the continuation of service by the respondent No. 7 as an Assistant Teacher of the Akabasti M.E. School in the district of Sonitpur is illegal and hence could not be allowed. Further, this Court directs the respondent authorities, more specifically, the Director of Elementary Education to examine whether withdrawal of Rs. 1.52 Lakhs by the respondent No. 7 was in accordance with law and if not to initiate recovery proceedings. In making such enquiry, the Deputy Commissioner of the district would render necessary cooperation. The resultant vacancy on discontinuation of the service of the respondent No. 7 may be filled up by a duly conducted recruitment process by giving the petitioner an opportunity to participate, if found to be eligible and qualified. 18. The writ petition is accordingly disposed of in terms indicated above. 19. The records in original are returned to the learned counsel, Shri R. Sarma, appearing on behalf of the headmaster.