Md. Afzal Hussain vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1914 Gua

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GAHC010106392021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3586/2021

         MD. AFZAL HUSSAIN
         S/O SAHIRUDDIN AHMED
         RESIDENT OF VILLAGE DALGAON, PO AND PS DALGAON, DIST
         DARRANG, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
         OF SECONDARY EDUCATION, GOVT. OF ASSAM, DISPUR GUWAHATI 06

         2:THE COMMISSIONER AND SECRETARY
          DEPARTMENT OF FINANCE
          DISPUR
          GUWAHATI 06

         3:THE EXPERT COMMITEE

         HEADED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
         ASSAM
         DISPUR GUWAHATI 06

         4:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM

          KAHILIPARA
          GUWAHATI 19

         5:THE INSPECTOR OF SCHOOLS

          DARRANG
          MANGALDAI
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             ASSAM

            6:THE TREASURY OFFICER

             DARRANG
             MANGALDAI
             ASSA

Advocate for the Petitioner   : MR. D P MANDAL

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 20-08-2021

Heard Mr. D P Mandal, learned counsel for the petitioner. Also heard Mr. S M T Chistie, learned counsel for the respondents no. 1, 3, 4 and 5 being the authorities under the Secondary Education Department, Assam and Mr. B Gogoi, learned counsel for the respondents no. 2 and 6 being the authorities under the Finance Department, Government of Assam.

2. Without going into the details of the facts, what we take note of is that this writ petition is instituted with the following prayers:

"In the premises aforesaid, it is therefore humbly prayed that Your Lordship may be pleased to admit this petition and call for records of the case, issue a Rule calling upon the respondents to show cause as to why relief's sought for in the application should not be granted and on cause/causes being shown and after hearing the parties and on perusal of the records be pleased to grant the following:-

i) To issue a writ in the nature of Certiorari quashing and setting aside the impugned orders dated 05.09.11(Annexure- XII) issued by Director, Secondary Education Assam.

ii) To issue writ in the nature of Certiorari quashing and setting aside the impugned orders dated 11.12.12 (Annexure- XV) issued by Director, Secondary Education, Assam.

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iii) To issue a writ in the nature of Certiorari quashing and setting aside the impugned orders dated 18.01.19 issued by Inspector of Schools, Darrang, Assam.

iv)To issue writ in the nature of Certiorari quashing and setting aside the impugned orders dated 05.12.20 (Annexure- XVIII) issued by Expert Committees.

v) To issue a writ in the nature of Mandamus directing the respondents to release the arrear salary for the period 01.06.1996 to 19.09.07.

vi) To issue a writ in the nature of Mandamus directing the respondents to fix the date of regularization of service with effect from 01.07.94 as per order dated 21.11.94 (Annexure- V) issued by the Inspector of Schools, Darrang to ensure the benefits of pension under Assam Service(Pension) Rules 1969.

vii) To pass any such order/ orders/ directions as Your Lordships may deem fit and proper.

And for this act of kindness, your petitioner as in duty bound shall ever pray."

3. The prayers no. 1, 2, 3, 4 and 5 apparently relates to the status of the service of the petitioner as a teacher in the Danda Saharia Higher Secondary School and subsequently, in the Sipajhar Academy in the Darrang district. The sixth prayer is for payment of pension upon the petitioner having retired from service on 31.03.2021.

4. During his service tenure there was an issue in respect of the petitioner as to whether he was duly appointed in his service or his entry in the service itself was not sustainable.

5. Without going to the other litigations and representations that the petitioner might have submitted during his service career, we take note of that the petitioners had instituted WP(C) 6061/2002 raising the grievance that his salaries etc. were not paid. The said writ petition was given a final consideration by the order dated 10.12.2002 that his representation submitted before the authorities for payment of salary be given a consideration by the Principal Secretary to the Government of Assam in the Education Department. On an alleged non-compliance of the said order, Cont. Cas(C) 731/2003 was instituted. Subsequently, the petitioner instituted another writ petition being WP(C) 1187/2013 which was given a final consideration by the order dated 12.03.2018 requiring the claim of the petitioner to be placed before the Expert Committee constituted in terms of the judgment in Sudhendu Mohan Talukdar vs. Page No.# 4/5

State of Assam. Again on an alleged non-compliance of the said order dated 12.03.2018, Cont.Cac(C) 512/2018 was instituted.

6. In the said contempt petition, a stand was taken by the respondents therein that the claim of the petitioner was already given a consideration by the Expert Committee in its meeting of 05.12.2020 and accordingly, the contempt petition stood closed.

7. In this writ petition, the minutes of the Expert Committee of 05.12.2020 in respect of the writ petitioner Md. Afzal Hussain is available as Annexure-XVII, page 71 to the writ petition.

8. Mr. S M T Chistie, learned counsel for the Secondary Education Department, Government of Assam by referring to the said minutes of the Expert Committee takes a stand that as the Expert Committee had rejected the claim, therefore he is neither entitled to the arrear salary nor he is entitled to any pension.

9. We have perused the minutes of the Expert Committee of 05.12.2020. A reading of the minutes merely indicates that the Expert Committee had recorded the history of litigations made by the petitioner. In the penultimate paragraph, a conclusion was arrived as extracted below:

"After verification the IS Darrang issued an order vide W.P(C) 1187/2015/64/68 dated 18.01.2019 where it was stated that the regularization of service of the petitioner was illegal. Since the regularization of the petitioner was illegal he has not got the salary of the above mentioned period."

10. A reading of the penultimate paragraph of the minutes goes to show that the Expert Committee, had only relied upon an order issued by the IS Darrang vide WP(C) 1187/2015/64/58 dated 18.01.2019 in which order it was stated that the regularization of service of the petitioner was illegal.

11. Without making any further enquiry, the Expert Committee concluded that the claim of the petitioner stood rejected. When the Court by its earlier order dated 12.03.2018 in WP(C) 1187/2015 required the Expert Committee to go into the claim of the petitioner as regards the validity and authenticity of the service of the petitioner as a teacher in the aforesaid school, it is incumbent upon the Expert Committee to go into the entire records or arrive at satisfaction, based upon the records, whether the service of the petitioner is acceptable in law or it is construed to be illegal.

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12. In the instant case, apparently it appears that no such application of mind was made by the Expert Committee and the order of the IS Darrang dated 18.01.2019 was reiterated.

13. From the said point of view, we remand the matter back to Expert Committee for an appropriate decision based upon materials on records as regards the service of the petitioner and arrive at a conclusion as regards the acceptability, validity and authenticity of the service of the petitioner in the school concerned.

14. Based on the decision that may be taken by the Expert Committee, in the event the decision goes against the petitioner, he may be informed about the same and in the event, it goes in favour of the petitioner, necessary process for initiation of other consequential benefits be made.

15. The Expert Committee may give its decision within a period of two months from the date of receipt of the certified copy of the order.

16. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant