Page No.# 1/4 vs Smt. Rina Hazarika
2022 Latest Caselaw 558 Gua

                                                                      Page No.# 1/4

GAHC010011582013




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

                                 Case No. : WP(C)/5913/2013

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

            2: THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM
             KAHILIPARA
             GHY-1

            VERSUS

            SMT. RINA HAZARIKA
            W/O SRI ROMEN HANDIQUE, R/O MISSONPATTY, P.O. GOLAGHAT, DIST-
            GOLAGHAT, ASSAM



Advocate for the Petitioner   : MR.P N GOSWAMI

Advocate for the Respondent : MS. S AHMED




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                          ORDER

Date : 17-02-2022

Heard Mr. N.J. Khataniar, learned counsel for the petitioner. Also heard Ms. J. Paul, learned counsel for the respondent.

2. The respondent Smti. Rina Hazarika had earlier instituted WP(C) 5716/2004 Page No.# 2/4

raising the claim that she was appointed as an Assistant Teacher in Geleki M.E. School as per the order dated 17.02.1992 pursuant to a selection under the Directorate of Elementary Education, Assam and was provisionally attached to the Numuligarh M.E. School. When the salary and allowance were not paid to the petitioner from December, 2000 the said writ petition was instituted. The writ petition was given a final consideration by the order dated 02.12.2008 requiring the petitioner to have her case referred before the committee constituted pursuant to the judgment referred in Sudhendu Mohan Talukdar - vs- The State of Assam in WP(C) 2147/99.

3. It is stated that the matter upon being referred to the committee constituted as per the requirement of Sudhendu Mohan Talukdar Committee (supra) the claim of the petitioner for salary and allowance was rejected on a factual finding that the appointment and attachment of the petitioner was illegal and contrary to the Rules.

4. Being aggrieved, the petitioner approached the Assam Administrative Tribunal in Case No.64ATA/2009. The said appeal before the Assam Administrative Tribunal was given a final consideration by the judgment dated 30.03.2013. In paragraph-1 of the judgment of the Assam Administrative Tribunal it was taken note of that it was the claim of the respondent that she was appointed as an Assistant Teacher in Geleki M.E. School, Golaghat on 17.02.1992 pursuant to a selection process against the retirement vacancy arising out of the retirement of the Headmaster of the school concerned but was attached to Numuligarh M.E. School although the Education Department of the Govt. of Assam had raised the objection before the Tribunal that the appointment of the petitioner itself was contrary to the Rules.

5. The Tribunal in paragraph-3 of its judgment arrived at its conclusion as Page No.# 3/4

extracted:-

"3. We have considered the submission of the learned Counsels of the parties as well as the relevant materials on records. It is not in dispute that the appellant appointed in the Geleki M.E. School on 17/02/1992 in a regular vacancy after observing due selection process."

6. A reading of the conclusion arrived at by the Assam Administrative Tribunal goes to show that the Tribunal was of the view that after considering the relevant materials on record and upon arriving at its conclusion it was not in dispute that the respondent was appointed in Geleki M.E. School on 17.02.1992 against the regular vacancy after observing due selection process. But upon perusal of the records we do not find any material on record which may indicate that the petitioner was appointed after due selection process.

7. Further we take note of that it cannot be a situation where it was not in dispute that the respondent was appointed after regular selection inasmuch, as the Education Department of the Govt. of Assam had raised a specific objection that the respondent was not appointed after regular selection and also there is a conclusion arrived at by the expert committee constituted pursuant to the judgment of Sudhendu Mohan Talukdar (supra) that the petitioner was not appointed by following the Rules.

8. In view of such infirmity in the judgment of the Assam Administrative Tribunal that the conclusion was stated to be based on the materials on record where no such material exists and further it being not a case that it was not in dispute that the respondent was appointed by following the due procedure of selection, we are of the view that the judgment of the Assam Administrative Tribunal in Case No.64ATA/2009 dated 30.03.2013 would be not sustainable in law and accordingly, the judgment dated 30.03.2013 is set aside and remanded Page No.# 4/4

back to the Assam Administrative Tribunal for a fresh consideration. For the purpose, the Tribunal may admit any evidence on record which may enable the Tribunal to arrive at a just and proper conclusion.

Writ petition stands allowed as indicated above.

Interim order, if any, passed earlier stands vacated.

JUDGE

Comparing Assistant