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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J
Ahedul Hussain S/o. Lt. Abdul Samad – Appellant
Versus
The State Of Assam And Ors. – Respondents
WP(C) 6721, 4733 of 2018
Decided on : 21-07-2022
Assam Venture Educational Institution (Provincialisation of Services) Act 2011 - Section 10(7) – Litigation – Challenging Order - Wrong quoting of appointment dates - Dispute between petitioner and Respondent No. 5 have undergone various litigations - Two writ petitions are fall out of said dispute between Petitioner and Respondent No.5 - In WP(C), challenge has been made to order whereby Joint Secretary to Government of Assam (Secondary Education Department) informed Director of Secondary Education Department, decision of Government to allow Respondent No.5 to draw his salary in compliance to this Court’s order - Whether wrong quoting of appointment dates in order of provisional approval or for that matter Petitioner there being two appointment orders would disentitle Petitioner to his rights for provincialisation of his services - It is not known on what basis Commissioner and Secretary had come to conclusion that on basis of Provisional Pass Certificate appointment was illegal (Para 42).
Findings of Court :
Commissioner and Secretary did not take into consideration that Inspector of Schools has given a provisional approval to Petitioner’s appointment, which clearly shows that Petitioner’s appointment was provisionally approved in official records - It would have been understable if Respondent’s appointment and question of various dates of appointments would have been germane. But admittedly till 2009, Respondent was nowhere in scene - Commissioner and Secretary failed to take into consideration, Inspector of Schools, NDC, has forwarded names of various teachers for orientation course and Petitioner’s name duly appeared wherein it has been shown that Petitioner was a Hindi Teacher in respect to School in question - Completion certificate was issued - There were clear materials on records that Petitioner was duly appointed in School as a Hindi Teacher prior to Respondent - Merely finding that procedure adopted in selection and appointment of Respondent during venture stage to be proper and Respondent’s date of appointment and joining recorded to be genuine, Commissioner and Secretary held that Respondent has been serving as a Hindi Teacher at School till date - It is not known what is basis on which Commissioner and Secretary had come to finding except statement of Respondent who seems to have supported Respondent.
Result : Writ petitions disposed of.
JUDGMENT :
1. Heard Ms. A Talukdar, the learned counsel appearing on behalf of the Petitioner and Mr. M.K. Choudhury, the learned Senior counsel assisted by Mr. M. Khan appearing on behalf of the Respondent No.5. I have also heard Mr. U. Sharma, the learned counsel appearing on behalf of the Respondent Nos. 1, 2, 3 and 4 and Mr. K. R. Patgiri, the learned counsel appearing on behalf of Respondent No.6.
2. The dispute between the petitioner and the Respondent No. 5 have undergone various litigations. The present two writ petitions are fall out of the said dispute between the Petitioner and the Respondent No.5. In WP(C) No.4733/2018, the challenge has been made to the order dated 07.05.2018 whereby the Joint Secretary to the Government of Assam (Secondary Education Department) informed the Director of Secondary Education Department, the decision of the Government to allow the Respondent No.5 to draw his salary with effect from March, 2017 in compliance to this Court’s order dated 16.02.2018, passed in WP(C) No.4565/2015.
3. Pursuant to the said order being passed, WP(C) No.4733/2018 was filed by the Petitioner herein challenging the said order. This Court vide an order dated 27.07.2018 directed that the operation of the order dated 07.05.2018 shall remain suspended. However, the authorities were directed to release the current salary only i.e. for the month of July, 2018 in favour of the Respondent No.5 which would obviously be subject to further orders that may be passed in the writ petition. Subsequent thereto, the Respondent No.5 filed an Interlocutory Application being I.A.(Civil) No.3118/2018 seeking vacation/modification of the order dated 27.07.2018 passed in WP(C) No.4733/2018. This Court vide an order dated 03.09.2018 in I.A.(Civil) No.3118/2018 observed that the Commissioner and Secretary, Government of Assam, Secondary Education Department instead of passing a reasoned order, allowed the Joint Secretary in the Department to pass the order dated 07.05.2018 by which the salary and allowances of the Respondent No.5 was paid. It was observed that the action in passing the order dated 07.05.2018 can be construed to be non-compliance to the order of this Court dated 21.07.2017 which have resulted in a complicated situation to which the Respondent No.5 has been paid the salary for which he was not entitled to. Accordingly, this Court directed the Commissioner and Secretary to decide the dispute between the Petitioner and the Respondent No.5 by passing a reasoned order and produce the same before this Court on 24.09.2018. In pursuance to the said order dated 03.09.2018 passed in I.A.(Civil) No.3118/2018, the order dated 14.09.2018 was passed by the Commissioner and Secretary to the Government of Assam, Elementary and Secondary Education Department, whereby the claims of the Petitioner was not accepted; whereas the claim of the Respondent No.5 was found to be genuine. It is under such circumstances that the second writ petition i.e. WP(C) No.6721/2018 was filed challenging the said order dated 14.09.2018. The legality and validity of the orders dated 07.05.2018 and 14.09.2018 is therefore the subject matter of the present two writ petitions. In order to decide the legality and validity of the said impugned orders in both the writ petitions, it is relevant to take note of the brief facts of the case.
4. The Petitioner herein claims to have passed the Madhyama Bisharad Examination and was issued a Provisional Pass Certificate by the Controller of Examination Kendra Byabashthapak Ka Karjyaloy, Dhamdhama Girls’ High School, Dhamdhama, Nalbari. The said Provisional Pass Certificate has been enclosed as Annexure-26 to the writ petition wherein it has been certified that the Petitioner under Roll No.2942 has passed the exam of Madhyama (Bisharad) from Hindi Sahitya Sammelon of Centre Dhamdhama in the year 2001.
5. Pursuant thereto, vide a resolution dated 29.10.2001 of the School Managing Committee of Paschim Banbhag Anchalik High School
Point of Law : It would show that Commissioner and Secretary on basis of inconsistencies as regards multiple dates of appointment recorded in different official records had rejected claim of Petition....
The court established that eligibility for provincialization of teachers' services must be based on verified service records and seniority, as per the provisions of the relevant Act.
Continuous service is essential for eligibility for provincialisation under the Assam Education Act, and valid termination negates claims for such benefits.
Point of Law : Issues involved in instant writ petition can be decided by a fact finding authority i.e. Educational Tribunal constituted under Section 19(2) of Act.
The Court established that seniority for provincialization of teachers' services must be determined based on accurate service records as per the Assam Education Act, 2017.
The court affirmed that the petitioner, having been appointed prior to provincialization, has a right to regularization based on continuous service as established by credible documentation.
The central legal point established in the judgment is that the termination of service of an employee in a non-Government educational institution must comply with the provisions of the Assam Non-Gove....
The omission of a qualified teacher from the provincialization list is arbitrary and violates statutory provisions and principles of natural justice.
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