Gauhati High Court
Prem Raj Goala vs The State Of Assam And 5 Ors on 28 September, 2021
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GAHC010065812018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2020/2018
PREM RAJ GOALA
S/O- PURUSHATTOM GOALA, VILL AND P.O. MANIPUR BAGAN, P.S.
KATLICHERRA, DIST- HAILAKANDI, ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (ELEMENTARY) DEPTT., DISPUR, GHY-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
HAILAKANDI
P.O. AND DIST- HAILAKANDI
ASSAM
PIN-788152
4:THE TREASURY OFFICER
HAILAKANDI
P.O. AND DIST- HAILAKANDI
ASSAM
PIN-788152
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
KATLICHERRA
P.O. KATLICHERRA
PIN-788165
DIST- HAILAKANDI
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ASSAM
6:THE HEADMASTER
MANIPUR M.V.SCHOOL
P.O. MANIPUR BAGAN
PIN-788165
DIST- HAILAKANDI
ASSA
Advocate for the Petitioner : MR. U K NAIR
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 28-09-2021
Heard Mr. U K Nair, learned senior counsel for the petitioner. Also heard Mr. B Kaushik,
learned counsel for the respondents no. 1, 2, 3 and 5 being the authorities under the
Elementary Education Department, Government of Assam and Mr. A Chaliha, learned counsel
for the respondent no. 4 being the authorities under the Finance Department, Government of
Assam.
2. Considering the nature of the order proposed to be passed, we are of the view that the
respondent no. 6 need not be heard for the present. Accordingly, we also ignore the office
note of 19.05.2020 which shows that neither the A/D Card nor any un-served notice has been
received in respect of the respondent no. 6.
3. The petitioner was appointed as an Assistant Teacher in the Manipur MV School in the
Hailakandi on 20.10.1993 and accordingly, he joined on 21.10.1993. By a subsequent order of
19.09.2002, the service of the petitioner was regularized against an existing non-plan vacancy
in the school concerned. On 16.03.2016, the petitioner submitted a letter of resignation
before the District Elementary Education Officer, Hailakandi stating that he intended to
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contest the Assam Assembly Election 2016, from L.AC., Hailakandi constituency. Accordingly,
the resignation of the petitioner was accepted. He contested the election but the result of his
contest did not go in his favour. In that situation, the petitioner submitted an application
dated 04.07.2017 before the Director of Elementary Education, Assam requesting that the
resignation earlier given by him be considered to have been withdrawn and also to allow him
to continue his service as an Assistant Teacher.
4. In the aforesaid circumstance, the Joint Secretary to the Government of Assam in the
Elementary Education Department by letter dated 21.09.2017 directed the Director of
Elementary Education, Assam to withdraw his resignation as well as to allow him to join in his
substantive post where he earlier served. In response thereof, the Director of Elementary
Education, Assam issued the letter dated 06.10.2017 to the District Elementary Education
Officer, Hailakandi requesting the authorities to furnish a detailed report regarding the period
of absence of the petitioner from the date of acceptance of his resignation till the date of the
said communication. In the process, the Director of Elementary Education, Assam issued the
order dated 13.10.2017 with reference to the earlier letter of the Joint Secretary dated
21.09.2017 allowing the petitioner to join his service in the Manipur MV School against the
substantive post which he earlier held, after allowing the withdrawal of the resignation with
immediate effect and the period of absence from the date of acceptance of his resignation till
the date when he rejoined his substantive post was ordered to be treated to be leave without
pay by following the principle of No Work No Pay.
5. In the above manner, the petitioner again rejoined his substantive post in the school
concerned.
6. Subsequently, the order impugned dated 31.03.2018 was passed by the Director of
Elementary Education, Assam providing that under the law there is no provision for allowing
the withdrawal of a resignation after it had been accepted and accordingly, the petitioner was
relieved from his duties.
7. The order dated 31.03.2018 is assailed in this writ petition. The core ground taken in
this writ petition is that prior to issuing the order impugned dated 31.03.2018, relieving the
petitioner from his duty on the ground that there is no provision of law to withdraw the
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resignation, neither any notice nor any opportunity of hearing was given to the petitioner.
8. Mr. B Kaushik, learned counsel for the Elementary Education Department on the other
hand submits that the reasoning given in the order impugned that there is no provision of law
to allow the withdrawal of resignation after such resignation has been accepted is a correct
proposition of law and therefore, the order impugned does not require any interference.
9. We have heard the learned counsel for the parties to a considerable extent.
10. The facts narrated above reveals that rightly or wrongly by the order dated 13.10.2017
of the Director of Elementary Education, Assam which again was pursuant to the letter of the
Joint Secretary dated 21.09.2017, a decision had been taken to allow the petitioner to resume
his duties in the substantive post which he held earlier by accepting the withdrawal of his
earlier resignation. Accordingly, pursuant to such order, the petitioner had also rejoined his
duties.
11. After allowing the withdrawal of the letter of resignation and allowing the petitioner to
join his service, a vested right had accrued in favour of the petitioner to continue as such, till
such order of allowing him to rejoin his duties is reversed in an appropriate manner by
following due procedure of law.
12. In the instant case, it is an admitted position of fact that neither any notice nor any
opportunity of hearing was given to the petitioner before relieving him from his duties by the
order impugned dated 31.03.2018. In other words, we have to be understood that a vested
right that was created in favour of the petitioner had been taken away without following the
due procedure of law. It is another aspect that the reason for doing so would be a legally
sustainable reason which again would be a question for determination. But merely, because
the reason of doing so would be a legally acceptable reason that itself cannot mean that the
vested right can be taken away without following the due procedure of law.
13. From the aforesaid proposition, we interfere with the order dated 31.03.2018 relieving
the petitioner from his duties. Although it would have to understand that the petitioner is
again back to his duty as an Assistant Teacher in the school, but as the respondents claim to
have a good legal reasoning for relieving the petitioner from his duty, liberty remain to
proceed against the petitioner but by following the due procedure of law as indicated above.
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14. Writ petition stands disposed of in the above terms.
JUDGE
Comparing Assistant
