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2019 DIGILAW 577 (GAU)

Azhar Uddin v. State of Assam

2019-05-09

M.R.PATHAK

body2019
ORDER : M.R. Pathak, J. 1. Heard Mr. R. Ali, learned counsel for the petitioners and Mr. J. Abedin, learned Standing counsel, Secondary Education Department for the respondent Nos. 1 to 3. Also heard Mr. B. Deuri, learned Government Advocate, Assam for the respondent No. 4 and Mr. B. Gogoi, learned Standing counsel, Finance Department for respondent No. 6. Though names of the counsels for the respondent No. 5 have been reflected in the cause list, none appeared for the said respondent. 2. Office note reflects that notice upon respondent No. 7 was duly served. The Registry has also received back the A/D card after service of notice of the case upon the said respondent. Inspite of that respondent No. 7 did not appear in the matter till date and as such the matter proceeded ex-parte against it. 3. Issue involved in this writ petition is with regard to the constitution of new School Management and Development Committee (SMDC) of Barpally Korertal Tetliktal (BKT) High School in the district of Barpeta. 4. Petitioners herein are the residents of the local village where the school in question is situated and some of them are the guardians of the students of the said school. 5. It is submitted by the petitioners that the State Government in the Secondary Education Department issued notifications for constitution of the SMDC of such High/Higher Secondary Schools in the State. Pursuant to such Notifications of the State Government, for constitution of SMDC of said BKT High School, its Headmaster called for a public meeting inviting the local public and guardian of the students of the said school that was held on 15.07.2016, in which the public present in the meeting selected and recommended 2 (two) persons, namely, Azhar Uddin, petitioner No. 1 and Nurul Islam, petitioner No. 2 for the post of President and 2 (two) persons, namely, Fariqul Islam and Rafique Ahmed for the post of Vice-President of SMDC of the said School, as specified by the State Government in its Notification in that regard. The Headmaster-cum-Member Secretary of the School forwarded said recommendation consisting the names of two President and Vice-President each to the Inspector of Schools, Barpeta District Circle, Barpeta for its onward necessary process and due recommendation of the Director of Secondary Education, Assam as well as the State Government in the Secondary Education Department. 6. The Headmaster-cum-Member Secretary of the School forwarded said recommendation consisting the names of two President and Vice-President each to the Inspector of Schools, Barpeta District Circle, Barpeta for its onward necessary process and due recommendation of the Director of Secondary Education, Assam as well as the State Government in the Secondary Education Department. 6. However, the Inspector of Schools, Barpeta, respondent No. 3 informed the Headmaster of said BKT High School that the State Government has approved the name of respondent Nos. 6 and 7 as the President and Vice-President of the SMDC of said BKT High School, though their names were not recommended by the public as well as by the Headmaster of the said school. Being aggrieved with the same, complaint was submitted before the Inspector of Schools, Barpeta by the petitioners praying to cancel the names of respondent Nos. 6 and 7 as President and Vice-President of the SMDC of said School, as their names were not recommended by them in the meeting held on 15.07.2016. It is also submitted by the petitioners that as per the Government Notifications, the respondent Nos. 6 and 7 are not qualified to be the President and Vice-President of SMDC of Secondary Schools since the respondent No. 6 is serving as the Principal of BKT Jatiya Bidyalaya, whereas respondent No. 7 is not even a Graduate. As the grievances of the petitioners with regard to the selection of President and Vice-President of SMDC of said BKT High School, district Barpeta were not considered by the respondents in the Secondary Education Department, they preferred this writ petition praying for setting aside and quash the impugned order dated 21.11.2016 of the Inspector of Schools, Barpeta, respondent No. 3, by which he intimated the Headmaster of said BKT High School about the nominations of respondent Nos. 6 and 7 as the President and Vice-President of the SMDC of said High School by the Government. 7. Notice in this case was issued to the respondents on 11.01.2017, but they did not choose to submit their affidavits in the matter. The Court while issuing Notice to the respondents on 11.01.2017 stayed the impugned order dated 21.11.2016 of the Inspector of Schools, Barpeta allowing the respondent Nos. 6 and 7 to be the President and Vice-President of the SMDC of said BKT High School and the same is still in force. 8. The Court while issuing Notice to the respondents on 11.01.2017 stayed the impugned order dated 21.11.2016 of the Inspector of Schools, Barpeta allowing the respondent Nos. 6 and 7 to be the President and Vice-President of the SMDC of said BKT High School and the same is still in force. 8. Pursuant to the order dated 03.05.2019, the respondents in the Secondary Education Department have placed the records in original with regard to constitution of School Management and Development Committees of Secondary Schools of the State. It is seen that in super-session of its earlier Notification dated 06.11.2001, the State Government in the Secondary Education Department in pursuance of the 'Framework for implementation of Rastriya Madhyamik Siksha Abhijan (RMSA) to plan, support, guide supervise and monitor various Programmes and Scheme' issued Notification No. PMA(S)4/2010/Pt/100 dated 06.08.2014 stipulating the provisions for constitution of the SMDCs and two subcommittees namely (i) Infrastructure Development Sub-Committee as well as (ii) Academic Development Sub-Committee for Government/Provincialised Higher Secondary Schools/Junior Colleges/High Schools/High Madrassas with specified members to constitute such SMDCs. The said Notification dated 06.08.2014 of the respondents in the Secondary Education Department provides amongst others (i) Powers and Functions of the Schools Management and Development Committee, (ii) Constitution and Approval of the School Management and Development Committee, (iii) Dissolution of the School Management and Development Committee, (iv) Meeting of the School Management and Development Committee, (v) Infrastructure Sub-Committee, (vi) Function of the Infrastructure Sub-Committee, (vii) Members to constitute Academic Sub-Committee and (viii) Functions of such Academic Sub-Committee. 9. The State Government in the Secondary Education Department observing that SMDCs of each of the High/Higher Secondary Schools have a major role in improvement of quality in Secondary Schools and that many responsibilities have been delegated to the SMDCs of each such school, like selection of Principal/Headmaster/Teachers, Financial Management etc. in their respective School, in addition to the powers and functions of SMDC; considering all those the State Government in the Secondary Education Department vide Notification under Memo No. ASE. 416/2014/16 dated 27.06.2016 revamped the SMDCs in all the Higher Secondary Schools, Junior Colleges, Secondary Schools and High Madrassas of the State so as to achieve the desired result. In the said Notification dated 27.06.2016, the State Government also laid emphasis on anon-political Management Committee in Secondary Schools, laid down the criteria’s of the SMDC, amongst others are:-- "1. 416/2014/16 dated 27.06.2016 revamped the SMDCs in all the Higher Secondary Schools, Junior Colleges, Secondary Schools and High Madrassas of the State so as to achieve the desired result. In the said Notification dated 27.06.2016, the State Government also laid emphasis on anon-political Management Committee in Secondary Schools, laid down the criteria’s of the SMDC, amongst others are:-- "1. President and Vice-President of the SMDC should not be more than 65 years. 2. The qualification of the President and Vice-President of the SMDC should not be less than Graduation of any discipline. 3. The reputation of such persons should be beyond any doubt or suspicion and he should be a person of good reputation in the locality. Any person who is convicted for any offence cannot be selected for these posts. 4. Any person who have contested any election of Panchayat level/Parliament or Assembly Election in last 20 years should not be considered for the post of President/Vice-President even if he/she is fulfilled all other criteria as indicated above." 10. The said Notification dated 27.06.2016 stipulates the composition of the SMDC of the Junior Colleges/Higher Secondary Schools/High Schools/High Madrassas and its Power and Functions. As per said Government Notification dated 27.06.2016, the compositions of such SMDCs of Secondary Institutions of the State are as follows:-- "1. One local educated reputed citizen having no political carrier--President. 2. One local educated, reputed citizen having no political carrier--Vice President. 3. Principal/Head Master/Pradhan Adhyapak in case of Sanskrit Tols/Superintendent in case of Madrassas -- Member Secretary. 4. Vice President/Asstt. Head Master (in case of non-availability of vice principal/Assistant Head Master, One senior teacher be nominated--Member. 5. 1(one) Senior Teacher of English, Science, S. Science, Mathematics subjects to be nominated by the Principal/Head Master/Pradhan Adhyapak/Superintendent as the case may be -- Member 6. 1(one) officer who has knowledge of computer technology for monitoring of ICT based Education to be nominated by the Inspector of Schools--Member. 7. Member, Local Anchalik Panchayat or Member of Block Development Committees in case of Autonomous Council districts--Member. 8. President of the Gaon Panchayat or Urban Local Body or Body or Chairman of Village Council Development Committees (VCDC) in case of BTAD districts -- Member. 9. 5(five) parents, of which at least two should be women with adequate representation from SC, ST, Minority community to be nominated/selected in the first meeting of the SMDC -- Member 10. 8. President of the Gaon Panchayat or Urban Local Body or Body or Chairman of Village Council Development Committees (VCDC) in case of BTAD districts -- Member. 9. 5(five) parents, of which at least two should be women with adequate representation from SC, ST, Minority community to be nominated/selected in the first meeting of the SMDC -- Member 10. 1(one) Expert of the area from the Computer literacy, Humanities and Art/Craft/Culture background to be nominated by the concerned Inspector of Schools based on recommendation of the President." 11. The said notification dated 27.06.2016 also stipulates the Powers and Functions of SMDC of such Secondary Schools of the State as well as the selection process of President and Vice-President of such SMDC's which are as follows:-- "The Inspector of Schools after consultation with the Principals/Head Master and local people will forward 2 names to the Director, Secondary Education, Assam for each President and Vice-President with the recommendation of the Deputy Commissioner within a period of 30 days. After considering the names Director, Secondary Education, Assam will provide the list to the Government with his comment for selecting single name after comparing data of both the candidates and then Government will approve the Committee." 12. In the said notification dated 27.06.2016, the State Government in the Secondary Education Department also stipulated that other terms and conditions including the grounds of dissolution of SMDC's shall remain the same as specified in its earlier Notifications dated 06.08.2014 and 29.12.2014. 13. In the said notification dated 27.06.2016, the State Government in the Secondary Education Department also stipulated that other terms and conditions including the grounds of dissolution of SMDC's shall remain the same as specified in its earlier Notifications dated 06.08.2014 and 29.12.2014. 13. From the perusal of the records, it is seen that the Inspector of Schools, Barpeta District Circle, Barpeta, respondent No. 3 after obtaining the approval from the Deputy Commissioner, Barpeta, respondent No. 4 submitted the list of President and Vice-President of the SMDC of the School before the Director of Secondary Education, Assam as per the prescribed format for formation of new SMDC of 240 numbers of provincialised High/High Madrassas under Barpeta District Circle that includes the names of President and Vice-President of said BKT High School recommended by the Deputy Commissioner, Barpeta at Serial No. 106, which reflects the name of respondent No. 6 as President and respondent No. 7 as Vice-President of the SMDC of the School in question, which goes to show that the respondent No. 6 is a Graduate of 40 years of age from Jania and a Social Worker, whereas the respondent No. 7 aged above 50 years, a Graduate in Arts and a Social Worker. 14. The Joint Director of Secondary Education, Assam on 14.10.2016 forwarded the entire list of Barpeta District recommended by the Deputy Commissioner, Barpeta stating that after verification of the said list with regard to the detail statements for eligible schools and non eligible schools, he forwarded the same to the State Government in the Secondary Education Department for necessary approval. The records produced before the Court by the Official respondents reflects that the Commissioner and Secretary, Secondary Education Department vide Notification No. ASE. 416/2014/5027 dated 18.10.2016 approved the said list of Presidents and Vice-Presidents of the SMDCs of Secondary Schools of Barpeta district as forwarded by said Joint Director of Secondary Education Department on 14.10.2016, which the later received from the Inspector of Schools, Barpeta and forwarded to the Government for approval. 15. It is seen that the names of Presidents and Vice-Presidents of SMDCs of High Schools/High Madrassas of Barpeta District that was forwarded by the Inspector of Schools, Barpeta on 22.09.2016 were approved by the Director of Secondary Education, Assam and forwarded the same to the State Government in the Secondary Department for its necessary approval. 16. 15. It is seen that the names of Presidents and Vice-Presidents of SMDCs of High Schools/High Madrassas of Barpeta District that was forwarded by the Inspector of Schools, Barpeta on 22.09.2016 were approved by the Director of Secondary Education, Assam and forwarded the same to the State Government in the Secondary Department for its necessary approval. 16. The State Government by the said Notification dated 27.06.2016 prescribed the 'Selection process of President and Vice-President of SMDC in Secondary Schools of the State, which stipulates that the Inspector of Schools of the District concerned, after consultation with the Principal/Head Master of the school and local people shall forward 2 (two) names to the Director of Secondary Education, Assam for each of the post of President and Vice-President with the recommendation of the concerned Deputy Commissioner and thereafter considering those names for the post of President as well as Vice-President and comparing the data of both the candidates for each of those two posts, the Director of Secondary Education, Assam with his comment shall provide the list to the Government for selecting single name to the posts of President and Vice-President of the SMDC of the school concern. Then, the Government shall approve such committee for the SMDC of the said school. 17. But the records placed before the Court today, clearly reveals that it is the Inspector of Schools, Barpeta who recommended single name for each of the post of President and Vice-President of Secondary Schools under his jurisdiction, instead of forwarding two names for each of such post, that too without consulting the Principal/Head Master of the school and local people, but with the endorsement of the Deputy Commissioner, Barpeta. The records of the case placed before the Court also disclosed that the Directorate of Secondary Education, Assam without asking the Inspector to recommend other names so as to make necessary comparison, forwarded the name of single person to the post of President and Vice-President of the SMDC of the Schools to the State Government in the Secondary Education Department, as it was provided by the Inspector of Schools, Barpeta, which is not in conformity with the provisions of said Notification dated 27.06.2016 of the State Government in the Secondary Education Department. 18. 18. The said record placed before the Court also divulged that Commissioner & Secretary to the State Government in the Secondary Education Department as well as the Directorate of Secondary Education, Assam and the Inspector of Schools, Barpeta constituted the SMDC of the school in question in violation of the provision of the Notification dated 27.06.2016 giving it a complete bye. 19. Since the impugned SMDC of BKT High School in the district of Barpeta has been constituted without following the provisions stipulated by the State Government in the Secondary Education Department in its Notification No. ASE. 416/2014/116 dated 27.06.2016, noted above, is bad in law being not in conformity with the provisions specified in the said Notification dated 27.06.2016 and therefore, the recommendation of the State Government under Government letter No. ASE. 416/2014/5027 dated 18.10.2016 recommending the names of respondent Nos. 6 and 7 as President and Vice-President respectively of the SMDC of BKT High School, forwarded by the Director of Secondary Education, Assam vide his letter No. PC/SMDC/16/2016/106 dated 19.10.2016 and the impugned consequential order of the Inspector of Schools, Barpeta under No. GB/SMDC/Prov/2016/1/8899 dt. 21.11.2016 is hereby quashed and set aside. 20. It is also observed that even the Deputy Commissioner, Barpeta, respondent No. 4 did not follow the said Notification dated 27.6.16 and merely approved the list of President and Vice-President to the SMDC of the said school, without applying his mind. 21. It is a settled legal principle that when the statute or executive instructions of the State issued by way of Office Memorandums/Notifications etc. if not inconsistent with the constitutional or statutory provisions concerned, provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It is also settled that where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all and any other methods or mode of performance are impliedly and necessarily forbidden. The said settled legal proposition is based on a legal maxim expressio unius est exclusio alterius, which means that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible in law. 22. The said settled legal proposition is based on a legal maxim expressio unius est exclusio alterius, which means that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible in law. 22. In State of U.P. Vs. Singhara Singh reported in AIR 1964 SC 358 the Hon'ble Supreme Court at para 8 have held that - The rule adopted in Taylor Vs. Taylor [(1875) 1 Ch D. 426] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. 23. For the reasons above and observing that the SMDC of Secondary Schools of the State plays a very important role for the functioning and development in their respective schools, it is, therefore, directed that the Inspector of Schools Barpeta after consulting with the Head Master of said BKT High School and local people shall forward two names each for the post of President and Vice-President to the Director of Secondary Education Department, Assam so as to constitute the SMDC of the said school, with due recommendation of the Deputy Commissioner, Barpeta, as stipulated in said Notification dated 27.06.2016 noted above. Thereafter, following the provisions in the said Notification dated 27.06.2016, the Director of Secondary Education Department, Assam shall do the needful recommending candidates to the State Government for the post of President and Vice-President of the SMDC of the School, after comparing datas of those candidates and thereafter, the Government shall approve the single candidate for the post of President and Vice-President of the SMDC of the said School in terms of the Notification dated 27.06.2016. 24. 24. The entire selection process of selecting the names for the post of President and Vice-President to the SMDC of BKT High School in the district of Barpeta shall be completed within a period of 60 days from the date of receipt of a certified copy of this order to be submitted by the Petitioners before the Commissioner and Secretary to the Government of Assam in the Secondary Education Department, respondent No. 1.