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2019 DIGILAW 428 (GAU)

Abdul Noor Laskar v. State of Assam

2019-04-04

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. 1. Heard Mr. A.M. Barbhuiya, the learned counsel for the petitioner and Mr. S.P. Bhattacharjee, the learned Standing Counsel Elementary Education appearing for all the respondents. 2. This is the fourth time the petitioner is before this Court. Brief fact of the case is that the petitioner was appointed on 25.02.1991, as an Assistant Teacher at Gararkandi M.E. School, a venture school. The school was provincialized w.e.f. 10.10.1992, but the petitioner's service was not provincialized and he became one of the dropped teachers. 3. Being aggrieved, the petitioner filed WP (C) No. 2024/2001, which was disposed of vide Order dated 17.08.2001 with a direction to the respondents to consider his case as per the Government Notification dated 21.06.2000, i.e. a Scheme for the regularization of the services of the dropped teachers within a time frame. 4. Despite the said direction, as the petitioner was not considered, he approached this Court again by filing WP (C) No. 10412/2003, which came to be disposed vide Order dated 23.12.2003, with a direction to the respondents that the petitioner's case be considered in terms of the Judgment and Order dated 01.09.2003, passed in Civil Rule No. 1571/1998, Jiban Chandra Deka and Others vs. State of Assam and Others. 5. After the disposal of the writ petition as above, the respondent authorities through the constituted High Power Committee carried out the exercise of scrutinizing the case of the dropped teachers for examining the genuineness of such claim. Consequently, a list of dropped teachers was published in the newspaper wherein, the petitioner did not find his name. Aggrieved, the petitioner again filed another writ petition along with another similar situated person i.e. WP (C) No. 1759/2008. The writ petition came to be disposed of vide Order dated 16.11.2010, with a direction that the reason for rejection by the High Power Committee be informed to the teachers concerned and that if there were any pending case of dropped teachers on LP/ME Schools despite examination carried out by the High Power Committee, the said Committee should carry out necessary exercise in terms of the Notification dated 16.07.2010 by which, the case of those teachers, who possess the Court's Order amongst others have been left unconsidered. Consequently, the respondents were directed to carry out the exercise within a time frame. 6. Consequently, the respondents were directed to carry out the exercise within a time frame. 6. After the disposal of the writ petition along with other analogous matters, the Commissioner and Secretary to the Government of Assam, Education (Elementary Department) vide Communication dated 06.08.2011 asked the District Elementary Education Officer, Cachar to submit the details and particulars of Gararkandi M.E. School for provincialization. In response to the said communication, the Block Elementary Education Officer, Sonai, Cachar, vide his letter dated 08.08.2011 forwarded the particulars of the petitioner and another person to the District Elementary Education Officer, Cachar, Silchar and which again were sent to the Commissioner & Secretary to the Government of Assam, Education (Elementary Department) by the District Elementary Education Officer, Cachar vide letter dated 11.08.2011. 7. It is the case of the petitioner that despite forwarding of the particulars, the respondent authorities have not considered his case. The petitioner therefore submitted a representation to the Commissioner and Secretary to the Government of Assam, Education (Elementary Department) on 17.02.2014 (Annexure-12) seeking his regularization. Since his representation has not been considered, the petitioner is again before this Court. 8. Mr. A.M. Barbhuiya, the learned counsel for the petitioner submits that the petitioner being a dropped teacher from the Gararkandi M.E. School, which has since been provincialized is entitled to be considered as per the policy document dated 13.01.2003, which has been referred to by this Court in the case of Jiban Chandra Deka and Others vs. State of Assam and Others, (2008) 3 GLT 229 which is. By referring to paragraph No. 4 of the said decision, which is annexed by the petitioner in his affidavit-in-reply dated 05.10.2015, Mr. A.M. Barbhuiya submits that upon considering the submission made by the learned counsels for the rival parties, Condition No. 1 & 2 of the policy document dated 13.01.2003 was agreed to cover the cases of all the 'dropped teachers' in service as on the date of provincialization of the concerned school and that the approval of the Managing Committee concerned on the appointment of the teachers as embodied in Condition No. 2 could be reflected by any document acknowledging the rendering of services by the dropped teachers. 9. 9. He therefore submits that in view of the policy document and the decision of this Court in Jiban Chandra Deka and Ors (Supra), the respondent authorities ought to have considered the case of the petitioners. Since such consideration was not done and the petitioner was not even informed about the rejection of his case as directed by this Court, vide its common Order dated 16.11.2010 in WP (C) No. 4626/2007, the respondent authorities be directed to consider the petitioner's representation dated 17.02.2014 (Annexure-12) and dispose of the same within a time frame. 10. 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 18.11.2014 submits that the petitioner having deficiency in service prior to provincialization of the School concerned is not eligible even to be considered in terms of Sub-Rule 3 of Rule 5 of the Assam Elementary Education (Provincialization) Service Rules, 1977 amongst others. Moreover, the petitioner having not being enlisted amongst the list of teachers, who were published in the newspaper as dropped teachers, it is only obvious that the petitioner was not found to be eligible to be amongst other dropped teachers to be considered for provincialized/regularized. He thus submits that the writ petition being without any merit should be dismissed. 11. I have heard the learned counsels appearing for the rival parties and I have perused the materials available on record. 12. As may be noticed, the petitioner has filed a number of writ petitions and which were disposed of by this Court requiring the respondent authorities to consider the same as per the policy document dated 13.01.2013 and also as well as in terms of Jiban Chandra Deka and Others (Supra). 13. From the documents available on the record, I do not find any document which says that the case of the petitioner was considered and the same was rejected for one reason or the other. The representation of the petitioner dated 17.02.2014 has also not received any response from the Department. 14. The objection of Mr. 13. From the documents available on the record, I do not find any document which says that the case of the petitioner was considered and the same was rejected for one reason or the other. The representation of the petitioner dated 17.02.2014 has also not received any response from the Department. 14. The objection of Mr. S.P. Bhattacharjee that in view of the relevant provisions of the Assam Elementary Education (Provincialization) Service Rules, 1977, having not being fulfilled by the petitioner, the question of considering his case will not arise in my considered view will have to be considered together with the decision rendered by this Court in Jiban Chandra Deka and Ors (Supra). 15. However, despite the above view, it is noticed that a similar challenge was made by a teacher, who had not completed 2 (two) years of service immediately preceding the taking over of the School by the Government in Badshah Pair vs. State of Assam and Others, (2008) 3 GLT 232. This Court came to the finding that the petitioner therein, admittedly did not complete 2 (two) years of continuous service as prescribed by the Notification dated 13.01.2003 and accordingly dismissed the writ petition vide Judgment and Order dated 11.03.2008. It may also be noticed that the case of Jiban Chandra Deka and Others (Supra) was also taken into consideration by this Court while dismissing the writ petition. 16. Against the dismissal of the writ petition, the petitioner preferred W.A. No. 175/2018 before the Division Bench, Badshah Pair vs. State of Assam and Others. The writ appeal was however dismissed by the Division Bench vide its Judgment and Order dated 25.04.2012. The relevant portion of the said Judgment may be abstracted below for ready reference:- "6. Only contention raised by the learned counsel for the appellant is that there are some similarly placed persons who did not have two years service prior to the date of taking over of the school and still their services were regularized. 7. This submission cannot be accepted. Admittedly, the case of the appellant was not covered by the parameters laid down by the State vide notification dated 13.1.2003. Learned counsel for the appellant submitted that the notification dated 13.1.2003 was not applicable to the case of the appellant as he had been appointed prior to the said notification. This contention can also not be accepted. Admittedly, the case of the appellant was not covered by the parameters laid down by the State vide notification dated 13.1.2003. Learned counsel for the appellant submitted that the notification dated 13.1.2003 was not applicable to the case of the appellant as he had been appointed prior to the said notification. This contention can also not be accepted. Consideration for regularization had to in terms of regularization policy when introduced. The appellant has not shown any right to claim regularization de hors the policy. No case is, thus, made out for interference with the order of the learned Single Judge. The appeal is dismissed." 17. From the above abstract of the Judgment and Order passed by the Division Bench, it may be seen that the claim for regularization de-hors the policy contained in the Notification dated 13.01.2003 was not accepted. Further, the submission of the appellant to the affect that similar other persons, who did not have the requisite 2 (two) years of service prior to the date of taking over of the school but were still regularized was also not accepted by the Division Bench. The petitioner in the present case admittedly was appointed on 25.02.1991 and the school was provincialized w.e.f. 10.10.1992. In other words, the petitioner did not have the 2 years of service when his school was provincialized. 18. Therefore, the case of the writ petitioner is only covered by the case of Badshah Pair (Supra). In the result, there is no other option but to dismiss the writ petition, which I accordingly do. No cost.