Mukut Chandra Das vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1226 Gua

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GAHC010218612014




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

                         Case No. : WP(C)/2191/2014

         MUKUT CHANDRA DAS
         S/O SRI BANESWAR DAS, R/O NAKUL NO.1, P.O. and P.S. RANGIA, DIST-
         KAMRUP, ASSAM

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, EDUCATION SECO DEPARTMENT, DISPUR, GHY-6

         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-6

         3:THE DISTRICT SCRUTINY COMMITTEE
          KAMRUP DISTRICT
          REPRESENTED BY ITS CHAIRPERSON I.E.
         THE DY. COMMISSIONER OF KAMRUP
         AMINGAON
          GUWAHATI

         4:THE INSPECTOR OF SCHOOLS
          KAMRUP DISTRICT CIRCLE
          DIST- KAMRUP
         ASSAM

         5:THE SCHOOL MANAGING COMMITTEE
          PRAGATI HIGH SCHOOL
          RANGIA
          REPRESENTED BY ITS PRESIDENT
          P.O. RANGIA
          DIST- KAMRUP
         ASSAM
          PIN-781354
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            6:THANESWAR KALITA
             S/O PRAN HARI KALITA
             R/O MURARA
             P.O. and P.S. RANGIA
             DIST- KAMRUP
            ASSAM
             PIN-78135
Advocate for the Petitioner : MR.N PATHAK
Advocate for the Respondent :

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 30-03-2021

JUDGMENT & ORDER (ORAL)

Heard Mr. DK Sarmah, learned counsel for the petitioner, Ms. P Chakraborty, learned counsel for the Secondary Education Department appearing for the respondent Nos. 1, 2 and 4 and Mr. SR Barua, learned counsel for the respondent No.3 being the Deputy Commissioner, Kamrup (R) as well as Mr. PK Roy Choudhury, learned counsel for the respondent No.6. None appears for the respondent No. 5. Considering it to be a matter of the year 2014, we deem it appropriate not to grant any further time for the said respondent to appear before the Court.

2. The petitioner namely Sri Mukut Chandra Das was appointed as an Assistant Teacher in the Pragati High School, Rangia on 23.09.1994 and he has the qualification of B.Sc, B.Ed and Prabin. The respondent No.6 Sri Thaneshwar Kalita on the other hand was appointed as an Assistant Teacher in the Pragati High School on 10.11.1986. Thereafter, he had left the school on 20.10.1990 and served in another school up to 31.08.1991, but he was again re-appointed in the Pragati High School, Rangia in the year 1992. Even if the respondent No.6 is construed to have been appointed in the year 1992, still from the point of view of appointment, the respondent No.6 would be senior to the writ petitioner.

3. Late Chand Mohammad Ali was the Headmaster of Pragati High School and he died in the year 2012. On his death, the Managing Committee of the Pragati High School took a resolution dated 04.11.2012 to appoint the petitioner Sri Mukut Chandra Das as the Headmaster of the school on the premises that he was the only teacher in the school who has the qualification both as graduation and B.Ed. The said resolution of the Managing Committee appointing the petitioner Sri Mukut Chandra Das was assailed by Sri Thaneshwar Kalita in WP(C) No.5510/2012, which was given a final consideration Page No.# 3/5

by the order dated 20.11.2013.

4. While the said writ petition was being heard, the learned standing counsel for the Education Department made a submission that there is a legal provision under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011) for a resolution of the dispute under the provisions of the said Act and that u/s 10 of the Act of 2011, there is a District Level Scrutiny Committee to scrutinize all such matters. It was further submitted that as per another notification dated 30.01.2013, the Government had also constituted District Level Redressal Committee as well as a State Level Committee for such matters to b e looked into. Based on the aforesaid submission of the learned standing counsel for the Education Department, the order dated 20.11.2013 was passed by which the Director of Secondary Education, Assam was directed to take necessary steps for a resolution of the dispute.

5. The said order attained its finality and the petitioner did not assail the same. In the resultant situation, the order dated 31.03.2014 was passed by the Director of Secondary Education, Assam. In the order dated 31.03.2014, the Director had accepted the recommendation of the District Scrutiny Committee and declared the respondent No.6 Sri Thaneshwar Kalita to be eligible for the post of Headmaster of Pragati High School. The order dated 31.03.2014 of the Director is assailed in this writ petition.

6. Mr. DK Sarmah, learned counsel for the petitioner raises an issue that the respondent No.6 Sri Thaneshwar Kalita did not have the B.Ed. degree and therefore, he was ineligible to be provincialised as the Headmaster of the school and therefore, the order dated 31.03.2014 requires an interference.

7. Section 4(3) of the Act of 2011 inter-alia provides that the services of a teaching and non- teaching employee in a venture educational institution up to the Higher Secondary level shall be considered for provincialisation only if they have the requisite academic and professional qualification prescribed by the relevant Rules at the time of their initial appointment. In the instant case, the issue for decision is whether the respondent No.6 Sri Thaneshwar Kalita had the requisite academic and professional qualification to be appointed/ promoted as the Headmaster of the school at the relevant point of time when his service was provincialised.

8. Admittedly the respondent No.6 Sri Thaneshwar Kalita was never appointed as the Headmaster of the Pragati High School. But by the impugned order of the Director dated 31.03.2014 without deciding the said issue, the service of the respondent No.6 Sri Thaneshwar Kalita was provincialised as the Headmaster of the school. The illegality and infirmity went to the extent that irrespective of the validity of the declaration that the respondent No.6 Sri Thaneshwar Kalita is to be provincialised as the Page No.# 4/5

Headmastser of the school, the Director even did not go into the question as to whether the petitioner otherwise as per his service particulars did meet the requirement of Section 3 of the Act of 2011 and also whether his services were deemed to have been provincialised under the Act of 2011 at least as an Assistant Teacher of the school.

9. From both the points of view, we find the order of the Director dated 31.03.2014 to be unsustainable. The Director also ought to have looked into the aspect that if the respondent No.6 Sri Thaneshwar Kalita would be continued to be not eligible to be the Headmaster of the School, in such event at least he was an Assistant Teacher in the school concerned and his case also can be considered whether he meets the requirement of Section 3 of the Act of 2011 as an Assistant Teacher and therefore, whether his services can be deemed to have been provincialised under the Act of 2011 at least as an Assistant Teacher.

10. We have also taken note that by the resolution dated 04.11.2012, the petitioner was appointed by the School Managing Committee as the Headmaster of the school on the strength of his educational qualification of being a graduate and B.Ed degree holder. From the said point of view, prima-facie no infirmity can be noticed in the said resolution. Although the resolution dated 04.11.2012 was assailed in WP(C) No.5510/2012 by the respondent No.6 Sri Thaneshwar Kalita, but the order dated 20.11.2013 was not passed in merit either affirming or rejecting the resolution dated 04.11.2012 appointing the petitioner as the Headmaster of the school and all that the order dated 20.11.2013 provided was that the Director of Secondary Education, Assam is required to take a decision on the dispute.

11. From the said point of view also we deem it appropriate that there was also a requirement on the part of the Director of Secondary Education, Assam as per the order dated 20.11.2013 in WP(C) No.5510/2012 to take a decision as to whether the resolution dated 04.11.2012 appointing the petitioner as the Headmaster of the school was a valid and sustainable resolution or not. We have noticed that in the order dated 31.03.2014, the said question was not determined by the Director.

12. For the aforesaid reasons, we interfere with the order dated 31.03.2014 of the Director of Secondary Education, Assam and direct the Director of Secondary Education, Assam to pass a fresh reasoned order as per the requirement of the order dated 20.11.2013 in WP(C) No.5510/2012. In doing so, the Director shall first take a decision as to whether the resolution dated 04.11.2012 is a valid and sustainable resolution or it is contrary to any provisions of law and secondly, if the decision goes in favour of the writ petitioner, the Director is to take a call whether the writ petitioner satisfies all the requirements of Section 3 of the Act of 2011, so as to be provincialised as the Headmaster of Page No.# 5/5

the Pragati High School.

13. If the decision of the Director is against the resolution dated 04.11.2012 appointing the petitioner as the Headmaster, the Director to take a decision as to whether the writ petitioner Sri Mukut Chandra Das satisfies all the requirement of Section 3 of the Act of 2011 for being provincialised as an Assistant Teacher of the school and if yes, declare that he is deemed to have been provincialised as an Assistant Teacher on and from 01.01.2013 with all consequential benefits. As the respondent No.6 Sri Thaneshwar Kalita was never appointed by any appropriate resolution of the Managing Committee of the school as the Headmaster and if the Director feels that his services should not have been provincialised as the Headmaster, in that circumstance, the Director to consider whether the respondent No.6 Sri Thaneshwar Kalita did meet all the requirement of Section 3 of the Act of 2011 as an Assistant Teacher of the school and if yes, to declare that he is deemed to have been provincialised as an Assistant Teacher of the school concerned. For passing the reasoned order, the Director may give a hearing to the petitioner as well as to the respondent No.6 on the factual aspects of their services in the school and without again reopening the legal issues which had already been decided by this order. The Director shall examine the entitlement of the petitioner as well as the respondent No.6 for provincialisation u/s 3 of the Act of 2011.

14. It is provided that in the event the Director arrives at a decision that it is the writ petitioner Sri Mukut Chandra Das, who was to have been provincialised as the Headmaster of the school and the respondent No.6 Sri Thaneshwar Kalita was to have been provincialised as an Assistant Teacher in the school, but by taking into consideration that the respondent No.6 Sri Thaneshwar Kalita had already retired from service, the difference in the pay between that of the Headmaster and Assistant Teacher which he had already enjoyed, be not recovered. But at the same time, the petitioner Sri Mukut Chandra Das be given the financial benefits of being provincialised w.e.f 01.01.2013, as it would be a case of deemed provincialisation, either as a Headmaster or as an Assistant Teacher, as the case may be.

15. The reasoned order be passed within a period of two months from the date of receipt of a certified copy of this order.

JUDGE

Comparing Assistant