Page No.# 1/6 vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2700 Gua

                                                                    Page No.# 1/6

GAHC010125092014




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

                          Case No. : WP(C)/3066/2014

         KAILASH CHANDRA PRODHANI and ANR
         S/O LT. NIPENDRA NATH PRODHANI, VILL. and P.O. BIDYARDABRI, DIST-
         DHUBRI, ASSAM

         2: JULL HUSSAIN MONDOL
          S/O LT. NASIRUDDIN MUNSHI
         VILL. and P.O. DIGHALTARY
          DIST- DHUBRI
         ASSA

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, EDUCATION ELE DEPARTMENT, DISPUR, GHY-6

         2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GHY-6

         3:THE UNDER SECRETARY TO THE GOVT. OF ASSAM
          EDUCATION ELE DEPARTMENT
          DISPUR
          GHY-6

         4:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY-19

         5:THE DY. INSPECTOR OF SCHOOLS
          DHUBRI
          DIST- DHUBRI
                                                                          Page No.# 2/6

             ASSA

Advocate for the Petitioner   : MR.S BANIK

Advocate for the Respondent : SC, FINANCE

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL) 08.11.2021 Heard Mr. SK Roy, learned counsel for the petitioners. Also heard Ms. N Phukan, learned counsel for the respondents No.1, 3, 4 and 5 being the authorities in the Elementary Education Department, Government of Assam and Mr. B Gogoi, learned counsel for the Finance Department, Government of Assam.

2. The petitioner No.1 Kailash Chandra Prodhani had earlier instituted WP(C)No.3187/2001 and the petitioner No.2 Md. Julil Hussain Mondol had instituted WP(C)No.3088/2001 on the grievance that although they were honorary teachers having served for more than 10 years their services had not been provincialised, whereas other similarly placed persons whose names are stated there in the aforesaid writ petitions have been provincialised.

3. By the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001, the following direction was issued:

"Therefore, these writ petitions are disposed of with a direction to the Page No.# 3/6

Deputy Inspector of Schools, Dhubri to complete the formalities for issue of letters of appointment in view of the discussions made in this judgment."

4. A reading of the direction of this Court in the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001 goes to show that there was a clear mandamus to the Deputy Inspector of Schools, Dhubri to complete the formalities of issuing letters of appointment to the writ petitioners. Understanding of the said direction would go to show that there was no further requirement for the respondent authorities to arrive at any decision other than to issue the appointment letters. If for any reason, according to the respondents, the petitioners are not entitled for being appointed, the appropriate remedy before them would be to either prefer an appeal or a review, but as long as the mandamus of the Court remains and had attained its finality, no scope remains with the respondent authorities to take any other view.

5. In the circumstance, there is a communication dated 19.08.2010 of the Deputy Inspector of Schools Dhubri to the Director of Elementary Education Assam with reference to the judgment and order dated 29.04.2002 passed in WP(C)No.3187/2001 and WP(C)No.3088/2001 wherein the Deputy Inspector of Schools sought for some instruction from the Director of Elementary Education Assam. But as no instruction was forthcoming, therefore, nothing further was done. Subsequently, the Commissioner and Secretary to the Government of Assam in the Elementary Education Department had passed an order dated 14.06.2011. The order dated 14.06.2011 proceeds on the premises that there is a judgment and order dated 29.04.2002 of this Court in WP(C)No.3187/2001 Page No.# 4/6

and WP(C)No.3088/2001 directing the Director of Elementary Education, Assam to forthwith complete the process of regularization of the services of the petitioners. The very basis on which the order of the Commissioner and Secretary to the Government of Assam in the Elementary Education Department proceeded appears to be a deviation from what was provided in the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001. As already noted that the direction of this Court in the aforesaid judgment was to issue letters of appointment to the petitioners whereas, the Commissioner and Secretary to the Government of Assam in the Elementary Education Department understood it to be a direction to complete the process of regularization. There is a substantial difference between issuing letters of appointment to that of completing the process of regularization. For the purpose of completing the process of regularization, further application of mind on the part of the respondent authorities would remain, but in a direction to issue letters of appointment no scope for any further application of mind would be there.

6. From the said point of view, we have to accept that the Commissioner and Secretary to the Government of Assam in the Elementary Education Department was misdirected. Thereafter, the Commissioner and Secretary arrived at his finding that the records reveal that the petitioners were not selected by the Sub-Divisional Level Selection Board and accordingly, it was ordered that the claim of the petitioners for being appointed stands rejected. But the said finding of the Commissioner and Secretary appears to be inapplicable from the point of view that the requirement of being selected by the Sub-Divisional Level Selection Board is a provision in case of a direct recruitment as teachers and it Page No.# 5/6

has nothing to do with issuing appointment letters pursuant to a direction of the Court.

7. In view of the above, we are of the view that the findings and conclusion arrived at by the Commissioner and Secretary to the Government of Assam in the Elementary Education Department in the order dated 14.06.2011 would be unsustainable in law as well as facts of the case. Accordingly, the said order is set aside

8. We have also taken note of that the aforesaid order of the Commissioner and Secretary dated 14.06.2011 was in compliance of the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001. It being so, having set aside the order dated 14.06.2011, we direct the Director of Elementary Education Assam to comply with the directions issued in the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001.

9. The above requirement be done within a period of 2(two) months from the date of receipt of the certified copy of this order. We have taken note of that there is another order by the Commissioner and Secretary to the Government of Assam in the Elementary Education Department dated 22.12.2012 by which again in compliance of the judgment and order dated 29.04.2002 in WP(C)No.3187/2001 and WP(C)No.3088/2001, there was a modification of the earlier order dated 14.06.2011, but with a reiteration that the petitioners were not selected by the Sub-Divisional Level Selection Board, and, therefore, the Page No.# 6/6

claim for issuance of appointment letters stood dismissed. The subsequent order does not in any manner improve upon the earlier order.

10. Accordingly, the subsequent order of 22.12.2012 also stands set aside and our direction to comply with the judgment and order dated 29.04.2002 passed in WP(C)No.3187/2001 and WP(C)No.3088/2001 in its entirety remains.

11. Writ petition stands allowed with the above observations.

JUDGE

Comparing Assistant