Abul Hussain Md. Luqman vs The State Of Assam And 6 Ors
2021 Latest Caselaw 1017 Gua

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GAHC010051272021




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

                           Case No. : WP(C)/1768/2021

         ABUL HUSSAIN MD. LUQMAN
         S/O- LT. MD. ASHAHID ALI, VILL- HIZIM, P.O. DASGRAM, DIST.-
         KARIMGANJ, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
         (SECONDARY) DEPTT., DISPUR, GHY-06

         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         3:THE INSPECTOR OF SCHOOLS
          KDC
          KARIMGANJ
          P.O. AND DIST.- KARIMGANJ
         ASSAM
          PIN- 788710

         4:THE ADDL. DY. COMMISSIONER
          (EDUCATION)
          KARIMGANJ
          P.O. AND DIST.- KARIMGANJ
         ASSAM
          PIN- 788710

         5:THE TREASURY OFFICER
          KARIMGANJ
          PATHARKANDI TREASURY OFFICE
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             P.O. AND DIST.- KARIMGANJ
             ASSAM
             PIN- 788724

             6:ABU MD. SUFIAN
              (EX-PRINCIPAL OF ASIMIA TITLE MADRASSA)
              S/O- LT. MOULANA IMDADUR RAHMAN
             VILL- DULAVPUR
              P.O. KANAIBAZAR
              DIST.- KARIMGANJ
             ASSAM
              PIN- 788724

             7:MD. FAKHRUL ISLAM
              S/O- LT. MD. RASMAN ALI
             VILL- HAITORKHA
              P.O. PATHARKANDI
              DIST.- KARIMGANJ
             ASSAM
              PIN- 78872

Advocate for the Petitioner   : MR. M K CHOUDHURY

Advocate for the Respondent : SC, SEC. EDU.




                                  BEFORE
             HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                            ORDER

Date : 17-03-2021

Heard Mr. MK Choudhury, learned senior counsel for the petitioner Abul Hussain Md. Luqman. Also heard Mr. AR Bhuyan, learned counsel for the respondent No.7 Md. Fakhrul Islam, Mr. R Mazumdar, learned counsel for the Secondary Education Department, Government of Assam and Mr. B Deori, learned counsel for respondent No.4 being the Additional Deputy Commissioner (Education) Karimganj.

2. The petitioner Abul Hussain Md. Luqman is a Lecturer in the Asimia Title Madrassa Karimganj whereas the respondent No.7 Md. Fakhrul Islam is an Assistant Teacher in the Asimia Senior Madrassa. Both the institutes are located in the same premises. Further the petitioner is the only Page No.# 3/5

Lecturer in the Asimia Title Madrassa. The earlier incumbent Principal of the Asimia Title Madrassa had retired from service and in the circumstance, there is a dispute between the petitioner and the respondent No.7 as to who between them would be the Principal in-charge of the Asimia Title Madrassa.

3. The dispute between the petitioner and the respondent No.7 had led to the earlier filling of WP(C)No.5753/2020 by the respondent No.7 which resulted in the order dated 22.12.2020. By the order of 22.12.2020 the Court had directed the Commissioner and Secretary to the Government of Assam to take a decision as to whether the Asimia Title Madrassa and the Asimia Senior Madrassa would be merged into one institution and if the order goes in favour of the merger, the respondent No.7 may be the in-charge Principal and in the event, the merger is refused the petitioner may be the in-charge Principal.

4. The question as to who would be the in-charge Principal would therefore depend on the decision that the Commissioner and Secretary may take. In response thereof, the Commissioner and Secretary had passed the order dated 21.01.2021 by which it was provided that as the two institutions did not fulfill the criteria contained in paragraph 5 (a)(b) and Para 6(1) (2) (3) (4) (5) of the OM No.ASE.481/2016/17 dated 22/9/2016 and, therefore, the proposal of merger which was submitted by the Director of Secondary Education could not be considered. Accordingly, the petitioner who is a teacher of Asimia Title Madrassa was allowed to be the in-charge Principal of Asimia Title Madrassa until further order. The order dated 21.01.2021 was assailed by the respondent No.7 in WP(C)No.809/2021 and by the judgment dated 08.02.2021, the order dated 21.01.2021 was set aside for the reason that it was not in conformity with the provisions of Clause 6 of the Scheme for Amalgamation and Merger of different schools - Siksha Khetra. Having set aside the order dated 21.01.2021, the matter was again remanded back to the Commissioner and Secretary for a fresh decision in terms of the observations made in the earlier order dated 22.12.2020 passed in WP(C)No.5753/2020.

5. In the meantime, a day later i.e. 09.02.2021, the Director of Secondary Education issued another order providing for rejection of the merger allowing the petitioner Abul Hussain Md. Luqman to be the Principal in-charge of Asimia Title Madrassa. But we have taken note of that there is an Page No.# 4/5

order of the Director dated 09.02.2021 pursuant to the order dated 21.01.2021 of the Commissioner and Secretary to the Government of Assam in the Secondary Education Assam. As the order dated 21.01.2021 of the Commissioner and Secretary had already been set aside, the subsequent order dated 09.02.2021 of the Director of Secondary Education based on the said order of 21.01.2021 would be unsustainable. However, as provided in the order dated 08.02.2021 in WP(C)No.809/2021, the Commissioner and Secretary to the Government of Assam in the Secondary Education Department may take a fresh decision on the question of merger between the Asimia Title Madrassa and the Asimia Senior Madrassa. In doing so, the Commissioner and Secretary shall also take note of paragraph 5 of the judgment dated 22.12.2020 passed in WP(C)No.5753/2020 which is extracted as below:

"Without expressing any view on the merit of either the petitioner to continue as the in- charge Principal or whether the Principal in-charge should be the respondent No.4 being the only Lecturer of the Asimia Title Madrassa, we require the Commissioner and Secretary to the Government of Assam in the Secondary Education Department to bring a logical end to the proposal of the Director, Secondary Education Assam contained in the communication dated 10.12.2020 and take a reasoned decision thereof. If the decision is in favour of the merger, the consequence thereof may follow and the in-charge Principal would be suitably decided and on the other hand, if the decision is not to go ahead with the merger, the respondent No.4 Abul Hussain Md. Luqman, being the only Lecturer of the Asimia Title Madrassa be allowed to continue as the in-charge Principal. Till such a decision is taken by the Commissioner and Secretary, the order dated 18.12.2020 allowing the respondent No.4 to be the in-charge Principal shall not be given its effect."

6. The required order be passed by the Commissioner and Secretary within a period of seven days from the date of receipt of the certified copy of this order and as provided in paragraph 5 of the order dated 22.12.2020, the issue as to who between the petitioner Abul Hussain Md. Luqman and the respondent No.7 Md. Fakhrul Islam would be the Principal in-charge of Asimia Title Madrassa shall again depend on the decision of the Commissioner and Secretary as to whether there should or there should not be a merger between the two institutions.

7. Although, we have retained the earlier requirement of paragraph 5 of the judgment dated 22.12.2020 in WP(C)No.5753/2020, but Mr. R Mazumdar, learned counsel for the Secondary Education Page No.# 5/5

Assam has pointed out that in the meantime, the Assam Madrassa Education (Provincialised) Service Rules, 2016 has been repealed and now the services of the petitioner would be governed by the Assam Secondary Education (Provincialised Schools) Service Rules 2018. If that is so, the question as to who would be the Principal in-charge shall now be decided on a conjoint reading of paragraph 5 of the order dated 22.12.2020 as well as the law regarding the Madrassa which is presently in force i.e. the Assam Secondary Education (Provincialised Schools) Service Rules 2018.

8. If the petitioner had been working as the Principal in-charge of the Madrassa concerned during the intervening period, the respondents shall pay the salary and allowances to the petitioner as per his entitlement, but the payment of salary shall not be construed to have vested any further right on the petitioner other than receiving the salary for the period he had worked.

9. In terms of the above, the writ petition stands disposed of.

JUDGE

Comparing Assistant