Babul Chandra Mazumdar vs The State Of Assam And 5 Ors
2021 Latest Caselaw 2609 Gua

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GAHC010026542021




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

                          Case No. : WP(C)/5706/2020


         BABUL CHANDRA MAZUMDAR
         S/O. LT. BECHARAM MAZUMDAR
         VILL. AND P.O. BORBIL
         P.S. HOWRAGHAT
         DIST. KARBI ANGLONG-782481.


          VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE SECRETARY EDUCATION DEPTT.
         KAHILIPARA
         GUWAHATI-781019.

         2:SECRETARY EDUCATION DEPTT.
         KARBI ANGLONG
          DIPHU.

         3:DIRECTOR OF SECONDARY EDUCATION
         ASSAM KAHILIPARA
         GUWAHATI-19.

         4:INSPECTOR OF SCHOOLS
         KARBI ANGLONG DISTRICT CRCLE
         DIPHU.

         5:THE HEAD MASTER
         UTTARBORBIL NINAPANI HIGH SCHOOL
         KARBI ANGLONG
         DISTRICT.

         6:KHOKAN CH. DAS
         S/O. LT. HARIKAMAL DAS
         ASSTT. TEACHER
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           VILL. AND P.O. UTTARBORBIL
           P.S. HOWRAGHAT
           DIST. KARBI ANGLONG.
           ------------

Advocate for : MR R YADAV Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 5 ORS

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 29-10-2021

JUDGMENT & ORDER (ORAL)

Herad Mr. R Yadav, learned counsel for the petitioner, Ms. P Chakraborty, learned counsel for the respondent No. 1 being the authority under the Secondary Education Department, Government of Assam, Mr. J Chutia, learned counsel for the respondents No. 2, 3 and 4 being the authorities under the Education Department of the KAAC and Mr. BD Das, learned senior counsel for the respondent No. 6 namely Sri Khokan Chandra Das. The respondent No. 5 being the Headmaster of Uttar Borbil Binapani High School, Karbi Anglong would not be an appropriate respondent in this writ petition from the point of view that it is a dispute between the petitioner and the respondent No. 6 as to who between the two would be senior in service and thereby have a claim over the post of Headmaster and therefore, till such dispute is settled, neither the petitioner nor the respondent No. 6 can be construed to be the Headmaster.

2. The petitioner Sri Babul Chandra Mazumdar was appointed as an Assistant Teacher (Intermediate) in the Uttar Borbil Binapani High School, Karbi Anglong on a temporary basis for a period of four months as per the order dated 13.02.1990 of the Inspector of Schools, Karbi Anglong District Circle, Diphu.

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Subsequently, by the order dated 01.03.2008, also of the Inspector of Schools, Karbi Anglong District Circle, Diphu, the service of the petitioner Sri Babul Chandra Mazumdar as an Assistant Teacher of Uttar Borbil Binapani High School, who was appointed by the order dated 13.02.1990 was regularized with immediate effect.

3. The respondent No. 6 Sri Khokan Chandra Das on the other hand was appointed as a Hindi Teacher in the Uttar Borbil Binapani High School, Karbi Anglong also on a temporary basis to act as the Hindi Teacher (Junior) in the scale of pay of Rs.1185-2395/- per month. By a subsequent order of 21.12.2013 of the Inspector of Schools, Karbi Anglong District Circle, Diphu, the respondent No. 6 Sri Khokan Chandra Das, who was the Hindi Teacher (Junior) in the school was promoted and appointed as a Hindi Teacher (Senior) in the scale of pay of Rs.5200-20,200/- with a grade pay of Rs.3,300/- per month. By another order of the Inspector of Schools, Karbi Anglong District Circle, Diphu dated 11.11.2019, the petitioner Sri Babul Chandra Mazumdar, who is referred as an Assistant Teacher (Intermediate) of the Uttar Borbil Binapani High School was promoted to the post of Assistant Teacher (Graduate) in the same school in the scale of pay of Rs.14,000 to Rs.49,000/- with grade pay of Rs.8,700/- per month in place of another teacher Ratan chakraborty, Assistant Teacher (Graduate), who was up-graded to the post of Headmaster of the same school.

4. In the present writ petition, there is a dispute between the petitioner Sri Babul Chandra Mazumdar and the respondent No. 6 Sri Khokan Chandra Das as to who between the two in the aforesaid factual circumstance would be senior in service, so as to be the in-charge Headmaster of Uttar Borbil Binapani High School.

5. By the order dated 10.12.2020 of the Inspector of Schools, Karbi Anglong Page No.# 4/7

District Circle, Diphu, the respondent No. 6 Sri Khokan Chandra Das was promoted to act as the Assistant Headmaster of the school. The grievance of the writ petitioner is that the respondent No. 6 Sri Khokan Chandra Das having been allowed to act as the Assistant Headmaster of the school, would now assume the duties of the in-charge Headmaster of the school on the superannuation of the earlier incumbent Headmaster. The order dated 10.12.2020 is assailed by the writ petitioner claiming that as he is senior as an Assistant Teacher (Graduate) in the school, therefore, it is the writ petitioner, who ought to have been promoted as the Assistant Headmaster and not the respondent No. 6.

6. To substantiate his argument, Mr. R Yadav, learned counsel for the petitioner relies upon a statement of particulars of the teachers of the school under the signature of the Headmaster, which provides that the writ petitioner Sri Babul Chandra Mazumdar had been receiving graduate scale of pay from 30.12.1993 and on the other hand, the respondent No. 6 Sri Khokan Chandra Das is receiving his graduate scale of pay from 26.10.1994.

7. In the circumstances, the provisions of Assam Secondary Education (Provincialised Schools) Rules, 2018 (in short Rules of 2018) is relied upon by the petitioner to contend that as under Rule 15(1) of the Rules of 2018, the post of Assistant Headmaster of a High School is to be filled up by promotion from the candidates amongst the Graduate teachers of the same school, therefore, the petitioner Sri Babul Chandra Mazumdar being senior to the respondent No. 6 Khokan Chandra Das from the point of view of receiving graduate scale of pay has a better claim to be promoted as the Assistant Headmaster. Raising such contention, the order dated 10.12.2020 promoting the respondent No. 6 Sri Khokan Chandra Das as the Assistant Headmaster of the Page No.# 5/7

school is being assailed.

8. Mr. BD Das, learned senior counsel for the respondent No. 6 Sri Khokan Chandra Das on the other hand raises the contention that as the writ petitioner Sri Babul Chandra Mazumdar was initially appointed as an Assistant Teacher (Intermediate) on a temporary basis for a period of four months and thereafter regularized as an Assistant Teacher by the order dated 01.03.2008, therefore, his date of receipt of graduate scale of pay would have to be construed from the date of regularization and the writ petitioner would not be entitled to the prior period of service from the date of his initial appointment on 13.02.1990.

9. When the writ petition was moved on 21.12.2020, an interim order was passed staying the operation of the order of promotion of the respondent No. 6 dated 10.12.2020 on the submission of the learned counsel for the petitioner that as per the service particulars provided by the Headmaster, the petitioner had received his graduate scale of pay from 30.12.1993, whereas the respondent No. 6 had received his graduate scale of pay from 26.10.1994. By instituting an Interlocutory Application for vacating the interim order, the respondent No. 6 has raised the question that the service particulars provided in the statement under the signature of the Headmaster of the school does not depict the correct factual situation to indicate that the writ petitioner had received his graduate scale of pay from 30.12.1993. The said contention raised by the respondent No. 6 Sri Khokan Chandra Das is a question of dispute of facts that has been raised and this Court is placed with the situation of assertions and counter assertions by the two parties.

10. Mr. BD Das, learned senior counsel for the respondent No. 6 also points out that the initial appointment of the writ petitioner Sri Babul Chandra Mazumdar by the order dated 13.02.1990 was as an Assistant Teacher Page No.# 6/7

(Intermediate), which itself is an indication that the writ petitioner Sri Babul Chandra Mazumdar was not receiving graduate scale of pay from the date of initial appointment on 13.02.1990.

11. But, no material is available before the Court to verify as to whether he had received graduate scale of pay from 30.12.1993 as stated by the Headmaster in the statement of particulars. Another aspect that remains as to whether the provisions of the Rules of 2018 is applicable or had been adopted by the authorities under the Karbi Anglong Autonomous Council (KAAC), so as to take into account the provisions thereof for determining the dispute.

12. Considering the matter in its entirety i.e. firstly there is a disputed question of fact as to from which date the writ petitioner Sri Babul Chandra Mazumdar is receiving the graduate scale of pay and from which date the respondent No. 6 Sri Khokan Chandra Das is receiving his graduate scale of pay, so as to determine the inter-se seniority between the two and secondly from the aspect that it is unclear as to what procedure of law and principle the KAAC is following for determining such seniority and eligibility for promotion as Assistant Headmaster of a High School, we are of the view that the ends of justice will be met on a direction to the Secretary, Department of Education of KAAC to take a complete decision on the aforesaid aspect and pass a reasoned order thereon.

13. The Secretary, Department of Education, KAAC shall firstly determine from the records as to factually from which date the writ petitioner had received his graduate scale of pay and from which date the respondent No. 6 had received his graduate scale of pay. After arriving at such factual conclusion, the Secretary shall examine as to what principle of law is governing the field for appointment of Assistant Headmaster of a High School and thereupon determine with a reasoned order as to who between the writ petitioner and the respondent No. 6 Page No.# 7/7

should be the Assistant Headmaster of the Uttar Borbil Binapani High School.

14. The requirement of taking a decision and passing a reasoned order be done by the Secretary, Education Department of KAAC within a period of two months from the date of receipt of a certified copy of this order. In doing so, the Secretary shall give an opportunity of hearing to both the petitioner as well as the respondent No. 6 and allow them to produce any relevant material/documents that they may desire to produce in order to substantiate their respective claims. The Secretary shall also call for the original records and verify and satisfy himself on the factual aspect. Thereafter, the Secretary shall take note of the legal principle of law that are being followed for such promotion and pass a reasoned order.

15. As the interim order was passed on the basis of a service particular provided by the Headmaster of the school and no such determination has been made as yet, which may lead to a prima-facie satisfaction of the Court as to who between the two are senior, we deem it appropriate not to continue with the interim order any further. Accordingly, the interim order passed on 21.12.2020 stands vacated, meaning thereby that the impugned order of the Inspector of Schools, Karbi Anglong District Circle, Diphu dated 10.12.2020 has now its effect.

The writ petition is disposed of in the above terms.

JUDGE

Comparing Assistant