Md Sultan Mamud Sheikh vs Md Sadeque Hussain And 13 Ors
2021 Latest Caselaw 423 Gua

                                                               Page No.# 1/6

GAHC010040452019




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

                           Case No. : WA/62/2019

         MD SULTAN MAMUD SHEIKH
         S/O LATE FORMAN ALI SHEIKH,
         VILLAGE SADHUBHASA NO. 2, PO MAKRIJHORA PS GAURIPUR, DIST
         DHUBRI, ASSAM,783349



         VERSUS

         MD SADEQUE HUSSAIN AND 13 ORS
         S/O MD. SHAHAR ALI SK,
         VILLAGE ALOMGANJ, PO RANGAMATI, DIST DHUBRI, ASSAM 783339

         2:THE STATE OF ASSAM
          REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF
         ASSAM
          DISPUR
          GUWAHATI 06

         3:THE PRINCIPAL SECRETARY
         TO THE GOVERNMENT OF ASSAM
          EDUCATION DEPARTMENT
          DISPUR
          GUWAHATI 06

         4:THE SECRETARY
         TO THE GOVERNMENT OF ASSAM

         EDUCATION(SECONDARY) DEPARTMENT
         DISPUR
         GUWAHATI 06

         5:THE COMMISSIONER AND SECRETARY
         TO THE GOVERNMENT OF ASSAM
                                                 Page No.# 2/6

FINANCE DEPARTMENT
DISPUR
GUWAHATI 06

6:THE DIRECTOR
 MADRASSA EDUCATION ASSAM
 KAHILIPARA
 GUWAHATI-19

7:THE TREASURY OFFICER.
 DHUBRI
 PO AND DIST DHUBRI
ASSAM
 783301

8:THE SELECTION COMMITTEE

PANBARI RANGAMATI SENIOR MADRASSA
RANGAMATI
DHUBRI ASSAM
TO BE REPRESENTED BY ITS PRESIDENT HAZRAT ALI
C/O SUPERINTENDENT
PANBARI RANGAMATI SENIOR MADRASSA
VILL PANBARI
PO RANGAMATI
DIST DHUBRI
ASSAM 783339

9:ABDUL HAMID MOLLAH

SUPERINTENDENT CUM MEMBER SECRETARY
PANBARI RANGAMATI SENIOR MADRASSA
AND ITS SELECTION COMMITTEE
C/O SUPERINTENDENT
PANBARI RANGAMATI SENIOR MADRASSA
VILL PANBARI
PO RANGAMATI
DIST DHUBRI
ASSAM 783339

10:MIZANUR RAHMAN
 DME NOMINATED MEMBER SELECTION COMMITTEE
 PANBARI RANGAMATI SENIOR MADRASSA
C/O SUPERINTENDENT
 PANBARI RANGAMATI SENIOR MADRASSA
VILL PANBARI
 PO RANGAMATI
 DIST DHUBRI
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             ASSAM 783339

            11:ABDUL MALEQUE

            ACADEMICIAN MEMBER SELECTION COMMITTEE
            PANBARI RANGAMATI SENIOR MADRASSA
            C/O SUPERINTENDENT
            PANBARI RANGAMATI SENIOR MADRASSA
            VILL PANBARI
            PO RANGAMATI
            DIST DHUBRI
            ASSAM 783339

            12:AHSAN ALI
            ACADEMICIAN MEMBER SELECTION COMMITTEE
             PANBARI RANGAMATI SENIOR MADRASSA
            C/O SUPERINTENDENT
             PANBARI RANGAMATI SENIOR MADRASSA
            VILL PANBARI
             PO RANGAMATI
             DIST DHUBRI
            ASSAM 783339

            13:MD. ABDUR RAHMAN SHEIKH
             MANAGING COMMITTEE MEMBER

            SELECTION COMMITTEE
            PANBARI RANGAMATI SENIOR MADRASSA
            C/O SUPERINTENDENT
            PANBARI RANGAMATI SENIOR MADRASSA
            VILL PANBARI
            PO RANGAMATI
            DIST DHUBRI
            ASSAM 783339

            14:ABDUR RASHID MIAH
             MANAGING COMMITTEE MEMBER

            SELECTION COMMITTEE
            PANBARI RANGAMATI SENIOR MADRASSA
            C/O SUPERINTENDENT
            PANBARI RANGAMATI SENIOR MADRASSA
            VILL PANBARI
            PO RANGAMATI
            DIST DHUBRI
            ASSAM 78333

Advocate for the Petitioner   : MR B SINHA
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Advocate for the Respondent : SC, SEC. EDU.

BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) Date : 08-02-2021 (Sudhanshu Dhulia, C.J.)

Heard Mr. KN Choudhury, learned senior counsel assisted by Ms. R Kakati, learned counsel for the appellant. Also heard Mr. A Ali, learned counsel for respondent No.1 and Mr. KP Pathak, learned standing counsel for the Secondary Education Department, Government of Assam.

2. The writ appeal is against an order of the learned Single Judge dated 12.02.2019 passed in WP(C)No.1670/2016 whereby the appointment of the appellant has been set aside.

3. The brief facts of the case are that the present writ appellant was appointed as a Lower Division Assistant (LDA) in Panbari Rangamati Senior Madrassa which was a government Madrassa at the relevant time and there were three candidates shortlisted for the said post, where Md. Sadeque Hussain was given the highest marks by the selection committee and then was Abdus Salam Mollah and Md. Sultan Mamud Sk. (i.e. the writ appellant) was at the third position. As per the Rules, these proceedings of the selection committee have to go to the Director for further action.

4. The Director recalculated the marks and increased the marks of Md. Sultan Mamud Sk. from 11.50 in Viva Voce 12.75 and his computer marks from 78.40 to 91.40. This has changed the entire equation and with these new changes in the marks, Md. Sultan Mamud Sk. has come to number one position and was ultimately appointed.

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5. This appointment of Md. Sultan Mamud Sk. was challenged at the hands of Md. Sadeque Hussain who was at position number one by the selection committee. The case of the writ petitioner (present respondent no. 1) before the learned Single Judge was that the Director on his own could not have increased the marks of either viva voce or computer marks, if at all he was in disagreement with the marks given to one or any of the candidates, he would have remanded the matter back to the selection committee, who would have recalculated afresh and then action would have been taken as per the revised marks. However, the appointment of the respondent No.14 (the present appellant) was set aside and a direction was given to appoint Md. Sadeque Hussain who was at Sl.No.1. This order has been challenged before us.

6. This Court has also been informed that by the interim order dated 08.03.2019 the order of the learned Single Judge has been stayed. The effect of the stay order would be that the writ appellant continues to work as an LDA in the said Madrassa since 2016 and is also drawing his salary thereafter.

7. There is one aspect, however, which troubles us and for this reason, we are inclined to send the matter back to the selection committee for reappraisal.

8. The learned counsel for the writ petitioner/respondent No.1 has drawn our attention to two certificates which have been given by Global Education and Techno World, which is a computer institute located at Dhubri, presently in the South Salmara District.

9. According to the respondent No. 1/writ petitioner in the writ petition, the certificates submitted by Md. Sultan Mamud Sheikh which was actually appraised by the selection committee showed that he has only 78.40 marks in the interview, but a new certificate has appeared of the same institute before the Director in which the marks shown was 91.40. The photocopies of both the certificates are on record before us. We have not been able to ascertain as to which of these two certificates is genuine and was before the selection committee. For this reason, purely in order to go to the truth of the matter, we direct the Sub-Divisional Judicial Magistrate, Hatsingimari to personally examine the original records from the concerned Institute i.e. Global Education and Techno World, prepare a report and submit it before the concerned selection committee which is constituted under Section 5(2) of the Assam Madrassa Education (Provincialisation) Act, 1995.

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10. The selection committee shall, thereafter, re-appraise all the relevant records, including the marks given by each of the members of the selection committed to all the three candidates who had appeared before them and thereafter, the selection committee will make a fresh recommendation to the Director, who shall take a decision based on the recommendations of the selection committee.

11. We make it very clear that in case of reappraisal, the selection committee comes to a decision that the respondent No. 1 before this Court i.e. the writ petitioner has actually received the highest marks, the appointment of the present writ appellant would be set aside and the appointment will be given to the writ petitioner i.e. respondent No.1. But the reverse is also true, in case, the selection committee comes to the conclusion that it is the writ appellant who was rightly appointed and he had received the correct marks, he would continue to work as an LDA in the concerned Madrassa. Meanwhile, purely in the interest of justice and for the interest of general public, since the writ appellant is presently continuing as LDA, he shall presently continue, but subject to the decision taken by the selection committee.

12. We also make it clear that this decision has to be taken very expeditiously by the selection committee. Let a copy of this order be given to the concerned Sub-Divisional Judicial Magistrate by the Registry, free of cost. We direct the selection committee to complete all the formalities as directed by us within a period of thirty days from the date they receive the report of the concerned Sub- Divisional Judicial Magistrate and within a period of 30 days, thereafter, the decision shall be taken by the Director.

13. With the above observations and directions, the writ appeal stands disposed of.

                                               JUDGE                                  CHIEF JUSTICE




Comparing Assistant