Gauhati High Court
Abu Saleh Sharif Uddin vs Hanif Uddin And 8 Ors on 27 January, 2022
Page No.# 1/14
GAHC010192092021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2101/2021
ABU SALEH SHARIF UDDIN
S/O. LT. ABDUL JOLIL, VILL. KURSHAKATI, P.O. AOLATOLI, DIST.
GOALPARA, ASSAM, PIN-783129.
VERSUS
HANIF UDDIN AND 8 ORS.
S/O. FAJIL ALI, VILL. KUSHAKATI, P.O. AOLATOLI, P.S. LAKHIPUR, DIST.
GOALPARA, ASSAM. PIN-783129
2:THE STATE LEVEL SCRUTINY COMMITTEE
REP. BY THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE DY. COMMISSIONER
GOALPARA CUM CHAIRMAN DISTRICT LEVEL SCRUTINY COMMITTEE
(DLSC)
GOALPARA
ASSAM.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
GOALPARA
Page No.# 2/14
ASSAM.
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
LAKHIPUR EDUCATION BLOCK
LAKHIPUR
DIST. GOALPARA
ASSAM.
7:THE SCHOOL MANAGING COMMITTEE OF KURSHAKATI MEM
REP. BY THE PRESIDENT
ABDUS SAMAD MOLLAH
S/O. KANGAL MOLLAH
VILL. KURSHAKATI
P.O. AOLATOLI
DIST. GOALPARA
ASSAM
PIN-783129.
8:THE HEADMASTER
KURSHAKATI ME MADRASSA
VILL. KURSHAKATI
P.O. AOLATOLI
DIST. GOALPARA
ASSAM
PIN-783129.
9:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
ELEMENTARY EDUCATION DEPTT.
DISPUR
GHY-
Advocate for the Petitioner : MR. M A SHEIKH
Advocate for the Respondent : SC, EDU
Linked Case : WP(C)/2493/2021
HANIF UDDIN
S/O. FAJIL ALI
Page No.# 3/14
VILL. KUSHAKATI
P.O. AOLATOLI
P.S. LAKHIPUR
DIST. GOALPARA
ASSAM.
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
ELEMENTARY EDUCATION
DEPTT.
DISPUR
GUWAHATI-06.
2:THE STATE LEVEL SCRUTINY COMMITTEE
REP. BY THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE DY. COMMISSIONER
GOALPARA CUM CHAIRMAN DISTRICT LEVEL SCRUTINY COMMITTEE
(DLSC)
GOALPARA
ASSAM.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
GOALPARA
ASSAM.
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
LAKHIPUR EDUCATION BLOCK
LAKHIPUR
DIST. GOALPARA
ASSAM.
7:THE SCHOOL MANAGING COMMITTEE OF KURSHAKATI MEM
REP. BY THE PRESIDENT
ABDUS SAMAD MOLLAH
S/O. KANGAL MOLLAH
VILL. KURSHAKATI
P.O. AOLATOLI
Page No.# 4/14
DIST. GOALPARA
ASSAM
PIN-783129.
8:THE HEADMASTER
KURSHAKATI ME MADRASSA
VILL. KURSHAKATI
P.O. AOLATOLI
DIST. GOALPARA
ASSAM
PIN-783129.
9:ABU SALEH SHARIF UDDIN
S/O. LT. ABDUL JOLIL
VILL. KURSHAKATI
P.O. AOLATOLI
DIST. GOALPARA
ASSAM
PIN-783129.
------------
Advocate for : MR. A M KHAN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 8 ORS
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
JUDGMENT
CAV
Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Mr.
P.K. Borah, learned Standing Counsel for the Elementary Education Department,
representing respondent nos. 1 to 3, 5 and 6, Mrs. D.D. Barman, learned
Additional Senior Government, representing respondent no. 4 and Mr. M.A.
Sheikh, learned counsel for respondent no. 9. None appears on call for the
respondent nos. 7 and 8 although notice is deemed to be duly served.
2) The connected interlocutory application has been filed under
Page No.# 5/14
Article 226 (3) of the Constitution of India by the respondent no. 9 in the writ
petition for vacating the interim order dated 27.09.2021. In the said
interlocutory application, (i) the petitioner has been arrayed as opposite party
no. 1, (ii) the Elementary Education Department and its authorities are arrayed
as opposite party nos. 2 to 4, 6 and 7, (iii) the respondent no. 4 has been
arrayed as opposite party no. 5 and the School Managing Committee has been
arrayed as opposite party no. 8, and (iv) the Headmaster of the Kurshakati M.E.
Madrassa has been arrayed as opposite party no. 9. In this order, for the sake of
clarity, the parties have been referred to as per their position/ status in the writ
petition.
3) The case of the petitioner is that pursuant to appointment order
dated 10.11.2006, the petitioner joined as 2 nd Assistant Teacher of Kurshakati
M.E. Madrassa on 14.11.2006, which is under administrative control of the Block
Elementary Education Officer, Lakhipur, in Goalpara District (hereinafter referred
to as 'BEEO' for short). The said Madrassa was allotted District Information
System for Education (DISE for short) Code in the year 2006. The name of the
petitioner was entered in DISE data with effect from the academic year 2008-09
as 2nd Assistant Teacher of the said M.E. Madrassa. It is claimed that on
resignation of the previous Headmaster, the then Managing Committee of the
said Kurshakati M.E. Madrassa appointed the respondent no. 9 as the
Headmaster on 09.08.2009 and accordingly, he joined as Headmaster on
11.08.2009 and that his name was entered in the DISE data for academic year
2011-12. Accordingly, it is claimed that the respondent no. 9 was junior to the
petitioner. It is also projected that the said Madrassa received Government grant
in the year 2011 for the teaching and non-teaching staff. It is claimed that a
Page No.# 6/14
meeting of the District Scrutiny Committee, Goalpara (DSC for short) was held
on 09.06.2018 to consider and recommend provincialisation of Teaching and
non-Teaching staff in venture educational institutions. The petitioner alleges that
the said DSC had illegally recommended the name of the respondent no. 9 for
provincialisation of his service, showing him to have been appointed on
01.06.2005. Thus, the aggrieved petitioner had submitted his representation
dated 10.08.2020 before the DSC, Goalpara for excluding the name of the
respondent no. 9 and inclusion of his name for provincialisation of his service.
An enquiry was conducted and vide letter dated 16.10.2020, the enquiry report
was submitted before the Additional Deputy Commissioner, Goalpara, inter alia,
recommending that the matter be placed before DSC for re-verification and
necessary action, but as nothing has happened, by filing this writ petition under
Article 226 of the Constitution of India, the petitioner has prayed for setting
aside and quashing of the notification dated 04.02.2021 issued by the Director
of Elementary Education, Assam (respondent no.3) in so far it relates to
provincialisation of service of the respondent no. 9 at serial no. 269 and for
directing the respondent authorities for provincialising the service of the
petitioner as teacher/ tutor of Upper Primary School under the provisions of
Assam Education (Provincialisation of Services of Teachers and Re-organisation
of the Educational Institutions) Act, 2017.
4) While issuing a notice of motion by order dated 27.09.2021, as
an interim measure, the Court had provided that the further effect of
provincialisation be not given to the respondent no. 9 Abu Saleh Sharif Uddin,
until further orders. Aggrieved by the said ad interim order, the respondent no.
9 has filed an interlocutory application under Article 226(3) of the Constitution
Page No.# 7/14
for vacating the said interim order. The said application was registered as I.A.(C)
2101/2021. The petitioner has contested the said interlocutory application by
filing affidavit-in-opposition.
5) The learned counsel for the petitioner had submitted that for
the purpose of provincialisation of service under the provisions of the Assam
Education (Provincialisation of Services of Teachers and Re-organisation of the
Educational Institutions) Act, 2017, only cases of those persons would be
considered whose name have been entered in the DISE data for the year -2009-
10. Accordingly, it had been submitted that as the respondent no. 9 had joined
service only on 11.08.2009, much later than the petitioner, who had joined the
said school on 14.11.2006, the petitioner had a better claim to be considered for
provincialisation. By referring to the money receipts dated 22.01.2006
(Annexure-A to the affidavit-in-opposition filed by the petitioner in the
interlocutory application), it has been submitted that the said money receipt was
signed by the President of the Managing Committee of the School, namely, Haji
Habibar Rahman and counter-signed by Habibor Rahman, as the Secretary of
the Madrassa. It has been submitted that the Headmaster of the Madrassa, by
virtue of his office, is also the Secretary of the said Madrassa. It has also been
submitted that even on 22.04.2008 (Annexure-B to the affidavit-in-opposition
filed by the petitioner in the interlocutory application), the earlier Headmaster,
Habibor Rahman had issued money receipt on behalf of the said Madrassa.
Moreover, by referring to the document containing particulars of the Madrassa
and its working staff (Annexure-C to the affidavit-in-opposition filed by the
petitioner in the interlocutory application), it has been submitted that the name
of the petitioner was not entered therein showing that as on 06.04.2006, the
Page No.# 8/14
respondent no. 9 was not listed as one of the teachers/tutors in the said
Madrassa.
6) The learned counsel for the petitioner has referred to the
School Report Card for 6 (six) academic years from 2006-2007 (as on
30.09.2006) to 2011-12 (as on 30.09.2011) and it is submitted that although
the name of the petitioner is entered therein in all these years, but the name of
the respondent no. 9 is entered as Headmaster only in respect of the academic
year 2011-12 (as on 30.09.2011). It has been submitted that only after the
respondent no. 9 has taken over charge as Headmaster and Secretary of the
said Kurshakati M.E. Madrassa, he had manipulated the entry of his name in the
school records in the staff details for the year 2005, which was contrary to all
the documents annexed by the petitioner in the writ petition and the affidavit-
in-opposition filed in the interlocutory application. It has also been submitted
that the Managing Committee resolution dated 30.05.2005 (Annexure-G to the
interlocutory application) has over-writing and that the purported resolutions no.
2 and 3 were written in handwriting, which is different from the resolution no. 1.
It has also been submitted that Haji Habibar Rahman, who was the then
President of the School Managing Committee had sworn an affidavit on
10.12.2021, before the Notary Public to the effect that the respondent no. 9 was
not appointed as Headmaster during his tenure and that the fake resignation
letter dated 26.05.2005 of the then Headmaster was prepared with his
signature. It has further been submitted that the Assistant Commissioner,
Goalpara had conducted a enquiry and submitted her report dated 16.10.2020
to the Additional Deputy Commissioner, Goalpara, wherein it has been
mentioned in para-4 thereof that - "After scrutiny of DISE Code records, it is
Page No.# 9/14
noticed that the name of Hanif Uddin, A/T has appeared in all DISE Code from
2009-10 to 2017-18 whereas name of Abu Saleh Sharif Uddin, H/M has
appeared in the DISE Code from 2011-12 to 2017-18 (copies enclosed) ."
Accordingly, it has been submitted that the provincialisation of service of the
respondent no. 9 be interfered with and a direction be given to the respondent
authorities to provincialised the service of the petitioner.
7) The learned counsel for the respondent no. 9 has submitted
that the then Headmaster of the School had resigned on 26.05.2005 and the
said post had fallen vacant on 26.05.2005. Thereafter, the Managing Committee
of the Madrassa had held a meeting on 30.05.2005, wherein by resolution no. 2,
the Secretary of the Madrassa was authorised to appoint the respondent no. 9
as Headmaster. Accordingly, the Secretary of the said Madrassa had issued
appointment letter dated 30.05.2005 and the respondent no. 9 had joined the
Madrassa on 01.06.2005 and the joining report was accepted on the same day
and that the respondent no. 9 had been serving as Headmaster in the said
Madrassa till 04.02.2021. Thereafter, by an order dated 05.02.2021, the Director
of Elementary Education, Assam (respondent no. 3) had appointed the
respondent no. 9 as tutor in Kurshakati M.E. Madrassa and directed him to join
at the base school, namely, Kurshakati L.P. School and his salary was fixed at
Rs.10,800/-. It has been submitted that this was done because in school where
the enrollment of students is below 100, service of Headmaster is not
provincialised and that the Madrassa has been linked with a "base" school.
Accordingly, the respondent no. 9 joined in the said base school on 08.02.2021
and his joining report was accepted by the Headmistress of the said School on
the same date. The learned counsel for the petitioner has submitted that the
Page No.# 10/14
document marked as Annexure-3 to the writ petition was a forged document
which would be apparent if the said document is compared with the documents
marked as Annexure-G to K of the interlocutory application.
8) It has been submitted that the name of Habibor Rahman, the
previous Headmaster was captured in the DISE data before he had resigned on
26.05.2005 and due to inadvertence, his name continued to be reflected in the
DISE data for academic years 2006-07 to 2010-11 and his name appeared only
in the DISE data of the academic year 2011-12. It has been submitted that as
the respondent no. 9 had joined as Headmaster of the Madrassa on 01.06.2005,
it was evident that the DISE data was erroneous. It has further been submitted
that on 09.06.2018, the DSC had held its meeting and recommended the name
of 3 teachers for provincialisation, being (i) Mridul Chandra Saha as "Maths and
Science" subject Teacher; (ii) Mahmud Hussain as "Language" subject Teacher;
and (iii) Abu Saleh Sharif Uddin (respondent no. 9) as "Social Studies" subject
Teacher. Thus, it is submitted that as the DSC had not recommended the name
of the petitioner, the interim order passed on 27.09.2021 be vacated and the
writ petition be dismissed. It has also been submitted that not only the name of
the respondent no. 9 had been recommended for provincialisation, but the
respondent no. 9 is also rendering service as Teacher/ Tutor in Kurshakati L.P.
School at a fixed salary of Rs.10,800/-. It is submitted that the petitioner would
never get the salary for the service rendered by the respondent no. 9 and as
such, it is submitted that the interim order be vacated so as to pave the way for
the respondent no. 9 to get his dues.
9) The learned Standing counsel for the Elementary Education
Page No.# 11/14
Department has submitted that the services of the Teaching and non-Teaching
staff are provincialised on the basis of DISE data and therefore, it had been
submitted that after due verification, the name of the respondent no. 9 was
recommended for provincialisation. It was also submitted that as highly disputed
questions has been raised and contested by the petitioner and the respondent
no. 9, it would be appropriate to either relegate the parties to avail statutory
remedy of preferring an appeal before the Educational Tribunal under Section
19(2) of the Assam Education (Provincialisation of Services of Teachers and Re-
organisation of the Educational Institutions) Act, 2017, or in the alternative, the
matter be directed to be determined by the Director of Elementary Education,
Assam (respondent no. 3).
10) Having heard the submissions made by the learned counsel for
the appearing parties, perused the writ petition, interlocutory application filed by
the respondent no. 9 for vacating the order dated 27.09.2021 and affidavit-in-
opposition filed by the petitioner in the said interlocutory application.
11) It appears that the petitioner has been able to make out a strong
prima facie case for continuance of the ad interim order dated 27.09.2021
passed in this writ petition because although the respondent no. 9 claims to
have been appointed as Headmaster on 01.06.2005, but the name of the
respondent no.9 was entered for the first time in the DISE data for academic
year 2011-2012 as on 30.09.2011. After the alleged appointment of the
petitioner, the first opportunity to provide particulars of the petitioner in the
DISE data was on 30.09.2006. Hence, the absence of submission of particulars
of the petitioner in the DISE data leads to a strong presumption that the
Page No.# 12/14
respondent no. 9 was not serving the said Madrassa as Headmaster as on
30.09.2006. Moreover, to support his contention, the petitioner has also
produced an affidavit sworn by the then President of the Managing Committee
of the said Madrassa that during his tenure the respondent no. 9 was not
appointed as the Headmaster. It is difficult for the Court to envisage a situation
where a DISE data is submitted in respect of academic year 2006-07 to 2010-11
without correct name of Headmaster being reflected. Therefore, as it is unlikely
that the respondent no. 9 would forget to enter his own name in the DISE data
and allow previous incumbent's name to be entered in the DISE data of the
academic years 2006-07 to 2010-11 and thereafter wake up only on 30.09.2011
to enter his own name as Headmaster.
12) The respondent no. 9 further claims that on 26.05.2005, Habibor
Rahman, the then Headmaster of the School had resigned. On 30.05.2005, vide
resolution no.2, the Managing Committee of the Madrassa had purportedly
authorised the Secretary of the Madrassa to appoint the respondent no. 9 as
Headmaster, which is not at all believable because when Habibor Rahman had
resigned as Headmaster on 26.05.2005, he had also lost his power and
authority to act as Secretary of the Managing Committee of the said Madrassa.
13) As indicated herein before, highly disputed questions of fact has
arisen in this case. Hence, the Court is of the considered opinion that the issue
relating to the claim of provincialisation of the service of (a) Hanif Uddin
(petitioner), and (b) Abu Saleh Sharif Uddin (respondent no. 9) be relegated to
be decided by the Director of Elementary Education, Assam (respondent no. 3)
for a fresh examination and determination by considering all the relevant
Page No.# 13/14
materials. It is also desirable that while deciding the matter, the respondent no.
3 would also examine the qualification of the petitioner and the respondent no.
9 as well as the records of the District Scrutiny Committee, Goalpara (DSC) to
find out on what basis their recommendation had been made. The Director,
Elementary Education, Assam shall also ascertain why an enquiry came to be
conducted by the Assistant Commissioner and whether follow up action, if any,
was taken after the Enquiry Report was submitted before the Additional Deputy
Commissioner, Goalpara vide letter dated 16.10.2020, inter alia, recommending
that the matter be placed before DSC for re-verification and necessary action.
14) Subject to Covid-19 protocol in force from time to time, the
Director of Elementary Education, Assam shall make an endeavour to examine,
determine and dispose of the claim of the petitioner for provincialisation of his
service in vis-à-vis the respondent no. 9 within a period of 2 (two) months from
the date of service with a certified copy of this order before the office of the
respondent no.3. The petitioner as well as the respondent no. 9 are given liberty
to forward the respondent no.3 any document(s) they intend to rely upon,
which shall be done within a period of 10 (ten) days. The petitioner and the
respondent no. 9 are not granted liberty to submit any write-up, summary or
any argumentative petitions, which if still filed, may be discarded. As the matter
would be decided on the basis of documents, no opportunity of personal
hearing is required. If any of the parties are still aggrieved, the aggrieved party
shall be at liberty to file statutory appeal as provided for.
15) As narrated herein before, the claim made by the respondent no.
9 that he was working in the Kurshakati M.E. Madrassa from 14.11.2006 till his
Page No.# 14/14
name was entered as Headmaster w.e.f. 30.09.2011 in the DISE data does not
inspire the confidence of the Court. Therefore, the interim order dated
27.09.2021, passed in this writ petition that the further effect of provincialisation
be not given to the respondent no. 9, namely, Abu Saleh Sharif Uddin, until
further orders, would stand extended till the fresh determination is made by the
Director of Elementary Education, Assam (respondent no.3). However, it is
clarified that while determining the matter, the respondent no.3 shall not be
influenced by this order, thereby extending the interim order as aforesaid and
the matter would be decided on its own merit.
16) The writ petition stands allowed to the extent as indicated above.
The parties are left to bear their own cost.
JUDGE
Comparing Assistant
