Gauhati High Court
Ahedul Hussain vs The State Of Assam And 6 Ors on 21 July, 2022
Page No.# 1/32
GAHC010217162018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6721/2018
AHEDUL HUSSAIN
S/O. LT. ABDUL SAMAD, R/O. VILL. RANGIA WARD NO.2, (KURIARA PATH)
P.O. AND P.S. RANGIA, DIST. KAMRUP (R), ASSAM.
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY COMMISSIONER AND SECY. EDUCATION (SECONDARY) DEPTT.,
ASSAM, DISPUR, GUWAHATI-06.
2:THE JOINT SECRETARY
TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY.-06.
3:THE DIRECTOR OF SECONDARY EDU. ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE INSPECTOR OF SCHOOLS
NALBARI DISTRICT CIRCLE
NALBARI
ASSAM.
5:MD. ABDUL KADIR
S/O. ISAHAQUE ALI
R/O. VILL. GOGORI
P.O. TINIPUKHURI
Page No.# 2/32
DIST. NALBARI
ASSAM-781367.
6:THE HEAD MASTER
PASCHIM BANBHAG ANCHALIK HIGH SCHOOL
VILL. NARAYANGAON
P.O. TINIPUKHURI
DIST. NALBARI
ASSAM-781367.
7:THE DY. COMMISSIONER
NALBARI DISTRICT
NALBARI
ASSAM
Advocate for the Petitioner : MR. D K SARMAH
Advocate for the Respondent : SC, SEC. EDU.
Linked Case : WP(C)/4733/2018
AHEDUL HUSSAIN
S/O LT. ABDUL SAMAD
R/O VILL- RANGIA
WARD NO. 2
(KURIARA PATH)
P.O AND P.S. RANGIA
DIST. KAMRUP (M)
ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY COMMISSIONER AND SECRETARY EDUCATION
(SECONDARY) DEPARTMENT
Page No.# 3/32
ASSAM
DISPUR
GUWAHATI-06.
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT. DISPUR
GUWAHATI-06.
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI - 781019.
4:THE INSPECTOR OF SCHOOLS
NALBARI DISTRICT CIRCLE
NALBARI
ASSAM
5:MD. ABDUL KADIR
S/O ISAHAQUE ALI
R/O VILL- GORGORI
P.O. TINIPUKHURI
DIST. NALBARI
ASSAM
PIN - 781367.
6:THE TREASURY OFFICER
NALBARI
DIST. NALBARI
ASSAM
PIN - 781367.
7:THE HEADMASTER
PASCHIM BANBHAG ANCHALIK HIGH SCHOOL
VILL- NARAYANGAON
P.O. TINIPUKHURI
DIST. NALBARI
ASSAM
PIN - 781367
------------
Advocate for : MR. D K SARMAH
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 6 ORS.
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (CAV)
Date : 21-07-2022
1. Heard Ms. A Talukdar, the learned counsel appearing on behalf of the
Petitioner and Mr. M. K. Choudhury, the learned Senior counsel assisted by Mr.
M. Khan appearing on behalf of the Respondent No.5. I have also heard Mr. U.
Sharma, the learned counsel appearing on behalf of the Respondent Nos. 1, 2,
3 and 4 and Mr. K. R. Patgiri, the learned counsel appearing on behalf of
Respondent No.6.
2. The dispute between the petitioner and the Respondent No. 5 have
undergone various litigations. The present two writ petitions are fall out of the
said dispute between the Petitioner and the Respondent No.5. In WP(C)
No.4733/2018, the challenge has been made to the order dated 07.05.2018
whereby the Joint Secretary to the Government of Assam (Secondary Education
Department) informed the Director of Secondary Education Department, the
decision of the Government to allow the Respondent No.5 to draw his salary
with effect from March, 2017 in compliance to this Court's order dated
16.02.2018, passed in WP(C) No.4565/2015.
3. Pursuant to the said order being passed, WP(C) No.4733/2018 was filed
by the Petitioner herein challenging the said order. This Court vide an order
dated 27.07.2018 directed that the operation of the order dated 07.05.2018
shall remain suspended. However, the authorities were directed to release the
current salary only i.e. for the month of July, 2018 in favour of the Respondent
No.5 which would obviously be subject to further orders that may be passed in
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the writ petition. Subsequent thereto, the Respondent No.5 filed an
Interlocutory Application being I.A.(Civil) No.3118/2018 seeking
vacation/modification of the order dated 27.07.2018 passed in WP(C)
No.4733/2018. This Court vide an order dated 03.09.2018 in I.A.(Civil)
No.3118/2018 observed that the Commissioner and Secretary, Government of
Assam, Secondary Education Department instead of passing a reasoned order,
allowed the Joint Secretary in the Department to pass the order dated
07.05.2018 by which the salary and allowances of the Respondent No.5 was
paid. It was observed that the action in passing the order dated 07.05.2018 can
be construed to be non-compliance to the order of this Court dated 21.07.2017
which have resulted in a complicated situation to which the Respondent No.5
has been paid the salary for which he was not entitled to. Accordingly, this Court
directed the Commissioner and Secretary to decide the dispute between the
Petitioner and the Respondent No.5 by passing a reasoned order and produce
the same before this Court on 24.09.2018. In pursuance to the said order dated
03.09.2018 passed in I.A.(Civil) No.3118/2018, the order dated 14.09.2018 was
passed by the Commissioner and Secretary to the Government of Assam,
Elementary and Secondary Education Department, whereby the claims of the
Petitioner was not accepted; whereas the claim of the Respondent No.5 was
found to be genuine. It is under such circumstances that the second writ
petition i.e. WP(C) No.6721/2018 was filed challenging the said order dated
14.09.2018. The legality and validity of the orders dated 07.05.2018 and
14.09.2018 is therefore the subject matter of the present two writ petitions. In
order to decide the legality and validity of the said impugned orders in both the
writ petitions, it is relevant to take note of the brief facts of the case.
4. The Petitioner herein claims to have passed the Madhyama Bisharad
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Examination and was issued a Provisional Pass Certificate by the Controller of
Examination Kendra Byabashthapak Ka Karjyaloy, Dhamdhama Girls' High
School, Dhamdhama, Nalbari. The said Provisional Pass Certificate has been
enclosed as Annexure-26 to the writ petition wherein it has been certified that
the Petitioner under Roll No.2942 has passed the exam of Madhyama (Bisharad)
from Hindi Sahitya Sammelon of Centre Dhamdhama in the year 2001.
5. Pursuant thereto, vide a resolution dated 29.10.2001 of the School
Managing Committee of Paschim Banbhag Anchalik High School (for short
referred to as "the School") it was resolved to appoint the Petitioner as the
Assistant Teacher (Hindi) of the said School. The said document has been
enclosed as Annexure A/R-2 to the Affidavit-in-reply against the Affidavit-in-
Opposition filed by the Respondent No.6. On the basis of the said resolution
adopted on 29.10.2001 by the School Managing Committee, the Headmaster of
the said School issued an Office Order appointing the Petitioner as the Hindi
Teacher of the said School and the copy of which was sent to various authorities
including the Inspector of Schools, Nalbari District Circle, Nalbari. Vide an order
dated 09.09.2004, the Inspector of Schools, Nalbari District Circle, Nalbari,
approved the appointment of various teaching and non-teaching staff of the
School including the appointment of the Petitioner. It may be relevant herein to
mention that in the said approval, the date of appointment of the Petitioner was
shown as 02.08.2002 and the date of joining was 03.08.2002 and the Managing
Committee's resolution number and date was shown as No.2 dated 01.08.2002.
6. Before proceeding further, it may be noted that on 09.08.2002, the final
Pass Certificate of the Petitioner was issued whereby the Petitioner was awarded
the Degree and the Mark Sheet of the Petitioner was issued on 30.04.2002. It
needs to be mentioned herein that the Roll Number mentioned in the Provisional
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Pass Certificate issued on 21.10.2001 and the Mark Sheet dated 30.04.2002
was the same i.e. 2942.
7. It is further the case of the Petitioner that the Inspector of Schools,
Nalbari District Circle, Nalbari vide a communication dated 19.07.2006,
submitted the list of Hindi teachers for an Orientation course to the Regional
Director, Central Institute of Hindi, Kahilipara, Guwahati. The names of the Hindi
teachers for the Orientation course was in respect to a course conducted by the
Central Institute of Hindi, Guwahati at Shiksha Bhawan Chowk Bazar, Nalbari.
In the list of the Hindi teachers for orientation, the name of the petitioner duly
appears at Serial No.33 and the Petitioner's name was shown against the
School. Pursuant to the said training, a completion certificate was issued to the
Petitioner certifying that the Petitioner had participated in the course from
24.07.2006 to 12.08.2006 and he was released from the said training on
12.08.2006.
8. The record further reveals that the Respondent No.5 was appointed as a
Hindi Teacher of the said school as per Resolution No.1 of the School Managing
Committee held on 08.08.2009 and the Respondent No.5 joined on 10.08.2009.
The Respondent No.5 thereafter claims to be continuing his service in the said
post till date.
9. It further appears from the records that there was a complaint made by
the Respondent No.5 to the Additional Deputy Commissioner, Nalbari District on
21.01.2012 for providing protection in discharging his duty. The Respondent in
the said communication to the Additional Deputy Commissioner, Nalbari District
dated 21.01.2012, had alleged that he went to the School for discharging his
duty as per the order of the Additional Deputy Commissioner, Nalbari District
dated 19.12.2011 but the husband of Mrs. Shafia Khatun namely Md. Abdul
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Halem and father of Mr. Abdul namely Md. Abdul Kadir at the instigation of Md.
Musaraf Hussain obstructed him at the time of discharging his duties. The
Additional Deputy Commissioner thereafter, directed the O/C, Ghograpar P.S.
Ghograpar to take necessary action in pursuance to the communication dated
21.01.2012. The Sub-Inspector of Ghograpar Police Station submitted a report
on 22.08.2012 wherein he stated that during the course of investigation after
inspection of the place where the incident occurred and after enquiry with the
witnesses, it was found that the Respondent No.5 was neither engaged in
teaching job nor ever attended the school.
10. It further reveals that the Additional Deputy Commissioner, Nalbari District
had submitted an enquiry report. Relevant to mention that he visited the School
on 28.05.2012 alongwith one K.C. Sen, A.P.O., Nalbari. The said date however,
happens to be a Sunday. Be that as it may, a report was submitted to the effect
that the appointment of the Respondent No.5 as Assistant Teacher (Hindi) at
the School was formal and genuine and the appointment of other teachers
seemed to be not genuine. It was further reported that the Respondent No.5
may be allowed to continue as the Assistant Teacher (Hindi) in the said School.
In the writ petition, it has been alleged that there was no such inspection on
28.05.2012 as it was a Sunday and it was the A.D.C. who had called the
Respondent No.5 to his Office alongwith two of his favourable witnesses and
recorded their statement without going through any of the records pertaining to
appointment of the Respondent No.5 and his attendance in the School.
11. The record further reveals that the Respondent No.5 preferred a Writ
Petition being WP(C) No.3870/2012 before this Court being aggrieved for not
granting him the financial assistance for the year 2010-11 and for not sending
his name for provincialisation of his services. This Court vide an order dated
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14.08.2012 had directed the Director of Secondary Education, Assam to make
an enquiry through the District Scrutiny Committee regarding entitlement of the
Respondent No.5 for financial assistance and provincialisation of his services. It
was further directed that such verification shall be done on the basis of school
records. The record further shows that on 11.04.2013, the Director of
Secondary Education, Assam vide an order held that the appointment of the
Respondent No.5 was in excess for which the Respondent No.5 was not entitled
to get financial assistance.
12. Subsequent thereto, the District Scrutiny Committee upon verification of
all the relevant records was pleased to approve the list of eligible teachers of
the School and forwarded the same to the Directorate for further steps. The
Petitioner's name duly figured as Hindi teacher alongwith one Shafia Khatun,
another Hindi teacher of the School. Pursuant thereto, the State Scrutiny
Committee approved the names of the eligible employees of the school and
uploaded in the website of the department wherein the Petitioner's name
alongwith one Shafia Khatun were found eligible alongwith other staff of the
school.
13. Pursuant thereto, the Respondent No.5 preferred a writ petition being
WP(C) No.3186/2013 challenging the order dated 11.04.2013 passed by the
Director of Secondary Education, Assam on the ground of a fictitious enquiry
report dated 30.09.2011 of the ADC, Nalbari. This Court vide an order dated
10.06.2013 directed not to provincialise one post of Hindi teacher of the school.
In view of the said order the services of the said Shafia Khatun was
provincialised with effect from 01.01.2013 vide an order dated 24.12.2013.
However, the Petitioner's services was not provincialised. It further appears from
the records that the Respondent No.5 filed a Complaint Case No.210/2012
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before the Court of SDJM, Nalbari wherein various allegations were made
against the Headmaster of the School stating inter alia that the Respondent
No.5 had not been allowed to join and work in the said School. Vide a judgment
dated 11.06.2014, the learned SDJM acquitted the Headmaster including the
Petitioner from all charges.
14. Thereafter the record further shows that WP(C) No.3186/2013 was
disposed of vide an order dated 21.07.2014, whereby the Respondent No.1
therein was directed to cause an enquiry through the Appointed Committee to
resolve the issue and then pass appropriate order as expeditiously as possible
preferably within 2 months, giving opportunity of hearing to the parties
involved. The interim order dated 10.06.2013 was also vacated.
15. Subsequent thereto, the Inspector of Schools i.e. the Respondent No.4
herein vide a Letter No. IS/NDC/Est-I/WP(C)/3186/2013/4140 dated 18.09.2014
directed the Headmaster of the School to allow the Respondent No.5 to take
classes in the School. Pertinent herein to mention that the said letter was issued
at a time when the matter was pending before the Respondent No.1 as per the
direction of this Court dated 21.07.2014 in WP(C) No.3186/2013.
16. The Petitioner being aggrieved, filed a Contempt Petition being Contempt
Case No.658/2014 and this Court was pleased to issue notice. During the
pendency of the aforesaid contempt petition, the Inspector of Schools, N.D.C.
Nalbari issued a letter vide a Memo No. IS/NDC/Est-I/WP(C)/3186/2013/4165
dated 19.09.2014 by which the Headmaster of the School was asked to appear
before him alongwith the Hindi teachers of the School on 20.09.2014 at 11 A.M.
Pursuant thereto, the Petitioner alongwith the Headmaster duly appeared in the
Office of the Inspector of Schools but the said Inspector of Schools was not
present.
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17. It further appears from the records that the Respondent No.1 vide Memo
No. ELC/WP(C)/3186/2013/511/577-A dated 12.06.2015, held that the post and
services of the Petitioner cannot be provincialised and the post and services of
the Respondent No.5 would be provincialised. The Director of Secondary
Education, Assam was directed to take action to provincialise the post and
service of Respondent No.5. This order dated 12.06.2015 was put to challenge
vide a Writ Petition bearing No.4132/2015. When the said writ petition was
taken up for motion hearing on 22.07.2015, the learned counsel appearing for
the Respondent No.5 submitted before this Court that the services of the
Respondent No.5 has already been provincialised on 10.07.2015. On coming to
know about the said order dated 10.07.2015, the Petitioner preferred another
writ petition being WP(C) No.4565/2015 before this Court. This Court vide an
order dated 10.08.2015 issued notice and in the interim order directed the
Respondents not to give the benefit of provincialisation to the Respondent No.5
in terms of the order dated 10.07.2015. On the very date, a W.T. message dated
10.08.2015 was issued by the Secretary, Secondary Education Department to
the Inspector of Schools, Nalbari and the Director of Secondary Education
thereby directing the said authority to instruct the petitioner as well as the
Respondent No.5 and the Headmaster of the School to appear before the Joint
Secretary, Education Department on 12.08.2015.
18. Pursuant thereto, the record further reveals that vide an order dated
06.02.2018 passed in WP(C) No.4565/2015, this Court held that the enquiry so
conducted in pursuance to the order dated 21.07.2014 in WP(C) No.3186/2013
was not by the Appointed Committee as directed by the Court. It was further
observed that the Appointed Committee is a defined concept under Section
10(7) of the Assam Venture Educational Institution (Provincialisation of Services)
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Act 2011. In view of the order dated 21.07.2014, as it was the Appointed
Committee who was to resolve the dispute, this Court vide the said order dated
16.12.2018 directed the said committee referred to Section 10(7) of the Act of
2011 to conduct the enquiry as ordered earlier. The Commissioner and Secretary
was directed to re-constitute the Appointed Committee as provided in Section
10(7) of the Act of 2011 and cause an enquiry as ordered by this Court in its
order dated 21.07.2014. It was further observed that upon the said enquiry
being done, the report thereof be placed before the Commissioner and
Secretary in the Secondary Education Department for doing the needful as
directed in the order dated 21.07.2014. Further to that it was observed that the
enquiry to be done by the Appointed committee and the subsequent order of
the Commissioner and Secretary be passed thereto shall prevail over all earlier
orders that have been passed. In other words, as per the order passed by this
Court on 16.02.2018, the order of provincialisation made in favour of the
Respondent No.5 was made subject to the enquiry to be done by the Appointed
Committee and the subsequent order to be passed by the Commissioner and
Secretary. It was further directed that till the said exercise was not completed,
the earlier interim order shall continue.
19. The record further reveals that on 06.06.2018 almost after 3 months from
the date of the order passed by this Court, a reminder was sent by the
petitioner to the Commissioner and Secretary, Secondary Education Department,
the Deputy Commissioner, Nalbari District as well as the Inspector of Schools
Nalbari District Circle, Nalbari.
20. Subsequent thereto, the Petitioner could come to learn that on
07.05.2018, an order was passed to release the salary of the Respondent No.5
behind the back of the Petitioner that too without giving any notice of hearing.
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Under such circumstances the Petitioner issued a legal notice dated 18.06.2018
to the Respondent Nos.1, 3, 4 and 6 as well as the Treasury Officer, Nalbari.
21. The order dated 07.05.2018 issued by the Joint Secretary to the
Government of Assam, Secondary Education Department was put to challenge
in WP(C) No.4733/2018. This Court vide an order dated 27.07.2018 issued
notice and as an interim, stayed the operation of the impugned order dated
07.05.2018. It was however, observed that the authorities may release the
current salary only for the month of July, 2018 in favour of the Respondent No.5
which would obviously be subject to further orders that may be passed in the
case. Subsequent thereto, an Interlocutory Application was filed by the
Respondent No.5 for vacation/modification of the order dated 27.07.2018. The
said Interlocutory Application was registered and numbered as I.A.(C)
No.3118/2018.
22. This Court vide an order dated 03.09.2018 directed the Commissioner and
Secretary to decide the dispute between the Petitioner and the Respondent No.5
by passing a reasoned order and produced the same before this Court on the
next date i.e. 24.09.2018. Pertinent herein to take note the observations made
by this Court in the said order dated 03.09.2018, the relevant portion of which is
quoted hereinbelow:
"By the order dated 27.02.2018, the Commissioner and Secretary to the
Government of Assam was directed to reconstitute the appointed committee as
required Under Section 10(7) of the Assam Venture Educational Institution
(Provincialisation of Services) Act, 2011 and cause an enquiry as ordered by this Court,
in its earlier order dated 21.07.2017. It is stated that the said order had not been
complied and the Commissioner and Secretary neither had reconstituted the
committee nor had passed a reasoned order on the claims between the petitioner and
the respondent No.5.
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It is taken note of that instead of passing a reasoned order, the Commissioner
and Secretary allowed to Joint Secretary in the Department to pass the order dated
07.05.2018 by which the salary and allowances of the respondent No.5 was paid. If
the salary and allowances are allowed to be paid without passing a reasoned order as
required, the same can be construed be a non-compliance of the order of this Court
dated 21.07.2017 resulting in a willful and deliberate violation. Because of non-passing
a reasoned order, a complicated situation had arisen wherein, respondent No.5 may
have been paid the salary to which he was not entitled.
Before the next date fixed the Commissioner and Secretary shall decide the
dispute between the petitioner and the respondent by passing a reasoned order and
produce the same before the Court.
If no such order is passed, the Commissioner and Secretary shall remain
personally present on 24.09.2018."
23. It is in pursuance to the aforementioned order, that the impugned order
dated 14.09.2018 was passed by the Commissioner and Secretary to the
Government of Assam, Elementary and Secondary Education Department. Vide
the impugned order dated 14.09.2018, the Commissioner and Secretary
observed that there were inconsistencies in the claim of the Petitioner in respect
to his first date of appointment as 30.10.2001 to the post of Hindi teacher in the
School. It was further observed that on account of multiple date of
appointments recorded in different official records, it leads to a questionable
authenticity to the actual fact of appointment of the Petitioner. Further to that, it
was also observed that the date of acquiring the qualification of Madhyama
(Bisharad) as indicated in the Pass Certificate as on 30.04.2002 and Mark Sheet
of the same year shows that appointment appears to have been given effect
prior to acquiring of the degree in Madhyama (Bisharad) and actual production
of the Pass Certificate for which the claim of the Petitioner cannot be accepted.
However, as regards, the Respondent No.5, it was observed that the procedure
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adopted in the selection and appointment of the Respondent No.5 by the
School authorities during its venture stage is found to be proper and his date of
appointment and joining recorded as on 10.08.2009 to the post of Hindi teacher
in the school was found to be genuine. On the basis of that, it was held that the
Respondent No.5 has been serving as a Hindi Teacher of the School till date. It
was against the said order that the instant writ petition has been filed
challenging the same on various grounds.
24. This Court vide an order dated 12.08.2018 issued notice returnable by 4
weeks. Subsequent thereto, the Respondent Nos. 5 and 6 have separately filed
their Affidavit-in-Opposition to which Affidavit-in-Reply have also been filed by
the Petitioner. The Secondary Education Department have not filed their
Affidavit-in-Opposition.
25. In the Affidavit-in-Opposition filed by the Respondent No.5, the
maintainability of the writ petition has been raised on the ground that vide a
notification dated 03.12.2015, the Government of Assam was pleased to
designate the Court of the District Judges and Additional District Judges of each
District to function as Educational Tribunals to adjudicate disputes relating to
the teaching and non-teaching staff of the Non-Government Educational
Institution as well as disputes concerning disciplinary action and claim for
provincialisation in respect of teaching and non-teaching staff of venture
educational institutions within their respective territorial jurisdictions, from the
date of issue of the said notification. It was also contended that the writ
petitioner has not challenged the provincialization order dated 10.07.2015 of the
Respondent No.5 and as such without a challenge to the said order of
provincialization, this Court may not interfere with the matter restraining the
drawing of the salary. It was further contended in the Affidavit-in-Opposition
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that the Assam Venture Educational Institution (Provincialisation of Services)
Act, 2011 was struck down by this Court and the claim of the Petitioner ought
not to be entertained as the Petitioner is claiming for provincialisation of service
under the said Act which no longer exists.
26. On merits, it was stated that the Respondent No.5 was appointed as the
Hindi Teacher of the School as per Resolution No.1 of the School Management
Committee meeting held on 08.08.2009 by following the due recruitment
procedure. Accordingly, the Respondent No.5 joined his post on 10.08.2009 and
since then he has been continuing his service in the said post till date. It was
further mentioned that the Respondent No.5's name was not included in the
teaching staff as Hindi Teacher for the share of financial assistance by the then
Headmaster of School with a mala fide intention and the same was intended to
disburse in favour of one Syeda Saima Begum by incorporating her name as
Hindi Teacher. Thereafter various complaints were lodged before the competent
authority and an enquiry was conducted by the Circle Officer and a report was
submitted on 30.09.2011. In the said report, it was reflected that the
appointment of the Respondent No.5 was genuine and the same in turn
submitted before the Inspector of Schools, Nalbari on 19.12.2011 with a request
to include the name of the Respondent No.5 as Hindi Teacher in the list of
teaching staffs and to disburse the financial assistance to the Respondent No.5.
However, in spite of the aforesaid direction, as the then Headmaster of the
School did not release the share of financial assistance in favour of the
Respondent No.5, a writ petition i.e. WP(C) No.3870/2012 was filed for a
direction to the Respondents to release the share of financial assistance in
favour of the Respondent No.5. The said case was disposed of vide an order
dated 14.08.2012 thereby directing the Director of Secondary Education, Assam
Page No.# 17/32
to make an enquiry. The Director of Secondary Education, Assam vide an order
dated 11.04.2013 declined the claim of the Respondent No.5 on the plea that
the post held by him was in excess. The Respondent No.5 thereafter, challenged
the said order dated 11.04.2013 in WP(C) No.3186/2013. The remaining facts
pursuant thereto, have already been stated in the above noted paragraph of the
instant judgment which led to the passing of the order dated 07.05.2018 as well
14.09.2018 and for the sake of brevity, the same are not repeated.
27. As regards, the claim of the petitioner, it was sought to be refuted by the
Respondent No.5 stating inter alia at Paragraph No.10 of the Affidavit-in-
Opposition that the record shows that the Petitioner passed the Madhyama
Bisharad Examination in the year 2002 which is the minimum requisite
qualification for a Hindi Teacher and passed B.A. Examination in the year 2004.
It was further stated that the record shows that the Petitioner was appointed on
different dates i.e. appointment order dated 22.08.2001 in pursuance to the
S.M.C. resolution dated 21.08.2001; appointment order dated 30.01.2001 in
pursuance to the S.M.C. resolution dated 29.10.2001 and similarly joined in
services on different dates i.e. on 30.10.2001, 31.10.2001 and 22.08.2001
respectively. Further to that, the post approval order of the Inspector of Schools,
Nalbari dated 09.09.2004 indicates the Petitioner's date of appointment on
02.08.2002 pursuant to the Managing Committee Resolution No.2 dated
01.08.2002 and the date of joining was on 03.08.2002 indicating his
qualification as H.S. passed and Madhyama Bisharad. Further to that, the
Headmaster while submitting the particulars of teaching and non-teaching staffs
had indicated the Petitioner's date of appointment on 09.09.2002 as Assistant
Teacher. It was alleged that the appointment of the Petitioner was a clear case
of manipulation as made by the then Headmaster of the School just to
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accommodate his brother i.e. the writ petitioner for an undue benefit. The said
paragraph have been verified as true to the knowledge of the Respondent No.5.
28. In Paragraph No.14 of the said Affidavit-in-Opposition of the Respondent
No.5, he had categorically mentioned that the Joint Secretary to the
Government of Assam, Education Secondary Department issued a letter dated
17.07.2018 whereby the payment of arrear salary amounting to Rs.5,66,304/-
for the period from 01.01.2013 to 28.02.2015 has been sanctioned in favour of
the Respondent No.5 and the Respondent No.5 had duly received the said
amount. Further to that, the Respondent No.5 had also received his arrear dues
for the period from March, 2017 till February, 2018 and then receiving the
current salary from March, 2018.
29. The Respondent No.6 in his Affidavit-in-Opposition have stated that
though the Petitioner had claimed to be appointed as Hindi Teacher on
30.10.2001, but there is no records in the school pertaining to his appointment
as Hindi Teacher except some photo copies of his appointment order on
different dates. He further stated that at the time of the handing over the
charge of Headmaster, the earlier Headmaster did not hand over all the records
in original despite repeated request made to him. The said Respondent No.6 has
handed over some Xerox copies of Attendance Register of teaching and non-
teaching staffs wherein the name of the writ petitioner has not been found for
the year 2001, 2002 and 2003. Apart from that, it was also mentioned that
there was no vacant post for Hindi Teacher at that relevant point of time
inasmuch as initially the school was of three classes and as such one Sabina
Choudhury was appointed as Hindi Teacher on 11.07.1990 and after introduction
of six classes High School, another Hindi Teacher namely Sufia Khatun was
appointed on 19.09.2001 as Assistant Teacher which was subsequently
Page No.# 19/32
converted to the post of Hindi Teacher by the S.M.C. meeting Resolution No.1
dated 10.02.2004. On the basis thereof, the said Sufia Khatun was serving as
Hindi Teacher. Thereafter, in the year, 2009, Mrs. Sabina Choudhury was
released from the Post of Hindi Teacher and as she has been absorbed in
another High School, the said post was lying vacant w.e.f. 24.06.2009.
Thereafter, the S.M.C. of the school invited application to fill up the said vacant
post and accordingly the Respondent No.5 has been appointed as Hindi Teacher
of the said School as per Resolution No.1 of the School Management Committee
(S.M.C.) meeting dated 08.08.2009.
30. It was further mentioned that the Respondent No.5 had joined his services
on 10.08.2009 and has been serving in the said post till date. Further to that, it
has been mentioned that although the Respondent No.5 was discharging his
duty from 10.08.2009 but he was not allowed to sign in the Attendance Register
by the then Headmaster of School for a particular period from January, 2012 to
August, 2014. However, with the intervention of the Inspector of School,
Nalbari, the Respondent No.5 was allowed to put his signature from September,
2014. It has been further mentioned that the photo copies of the Attendance
Register of 2009, 2010, 2011 handed over by the earlier Headmaster, reflects
the name of the Respondent No.5. In Paragraph No.11 of the said Affidavit-in-
Opposition filed by the Respondent No.6, he repeated the same as was done by
the Respondent No.5 in his Affidavit as regards the various appointment letters
of the Petitioner and as regards when the Petitioner had passed his
examination.
31. To the said Affidavit-in-Opposition filed by the Respondent No.5, the
Petitioner had filed his Affidavit-in-Reply. In the said Affidavit-in-Reply, the
Petitioner had submitted that the question of bar created by the notification
Page No.# 20/32
dated 03.12.2015 would not apply to the facts of the instant case, inasmuch as
the adjudication of the instant case is under the provisions of Assam Venture
Educational Institution (Provincialisation of Services) Act, 2011 wherein there is
no provision for Constitution of an Educational Tribunal and furthermore, there
is no absolute bar when the fundamental rights of the Petitioner has been duly
affected. As regards the question of not having challenged the provincialisation
order dated 10.07.2015, it was mentioned that the said order was duly put to
challenge in WP(C) No.4565/2015 and this Court vide the order dated
16.02.2018 had nullified all orders including the order of provincialisation dated
10.07.2015. Further to that, as regards the preliminary objection raised
pertaining to the claim of the Petitioner under the Act of 2011, in spite of the
said Act having been held to be ultra vires, it was contended that subsequent
declaration of the Act of 2011 to be ultra vires does not dilute the requirement
of the earlier order of this Court. On facts, it was mentioned that a perusal of
the appointment letter dated 08.08.2009 enclosed to the Affidavit-in-Opposition
would show that the decision of the Managing Committee was taken on
10.08.2009 which clearly shows that the appointment order of the Respondent
No.5 and the Resolution dated 10.08.2009 are both manipulated. Further to
that, it was mentioned that as the Petitioner was working in the School since
2001 as a Hindi Teacher, therefore his name was included in the list of teaching
staffs of School for provincialisation of their services. The Respondent No.5 had
never attended the school and therefore was held to be an excess teacher
which was reflected in the order dated 11.04.2013 by the Director of Secondary
Education. Further to that, it was mentioned that the Petitioner has passed
Madhyama Bisharad Examination on 21.10.2001 as would be apparent from the
provisional certificate issued. The Final Certificate and the Mark Sheet have
Page No.# 21/32
been issued by the competent authority subsequently. It was mentioned that
the resolution was adopted by the S.M.C. on 29.10.2001 regarding his
appointment as Hindi Teacher and he was appointed as a Hindi Teacher of the
School on 30.10.2001. The said appointment of the Petitioner as Hindi Teacher
was duly approved by the Inspector of Schools, Nalbari on 09.09.2004. It was
mentioned that although the Respondent No.5 asserted that there were
different dates with regard to the appointment of the Petitioner but the fact that
he had been working continuously in the School since 2001 cannot be nullified
by any means. It is being an admitted case that the Respondent No.5 claims to
be appointed in the year 2009, the Petitioner is much senior to the Respondent
No.5. As regards the appointment letter dated 22.08.2001 enclosed to the
Affidavit-in-Opposition by the Respondent No.5, it was stated that the said
appointment letter was never received by the Petitioner and the joining report
dated 31.10.2001 seems to be manufactured document. For the sake of brevity,
it is relevant to mention that this Court is not dealing with each of the
paragraphs in the Affidavit-in-Reply filed by the Petitioner but it is pertinent to
mention that the statements made in the Affidavit-in-Opposition filed by the
Respondent No.5 were duly denied and explained.
32. As regards the Affidavit-in-Opposition filed by the Respondent No.6, the
Petitioner had filed his Affidavit-in-Reply. In Paragraph No.5 of the Affidavit-in-
Reply, it was mentioned that the Petitioner was appointed pursuant to the
S.M.C. resolution dated 29.10.2001 vide an appointment letter dated
30.10.2001. The Respondent No.6 was a signatory to the resolution dated
29.10.2001, that apart, a copy of the said resolution dated 29.10.2001 was
certified by the Respondent No.6 and furnished to the Petitioner. Further to that,
the Respondent No.6 had also furnished the copy of the Attendance Register for
Page No.# 22/32
the year 2001, 2002 and 2003 certified by himself wherein the names and
signatures of the Petitioner was very much there. As regards Sabina Choudhury,
who is the wife of the Respondent No.5, it was averred that her case is totally
different as because she was getting salary from the Government although
working in the Venture School but subsequently, adjusted in a provincialised
School by transferring to Nalbari Girls High School vide an order dated
24.06.2009. It was mentioned that the Respondent No.5 was never appointed
as a Hindi Teacher nor worked in the school at any point of time. The resolution
dated 08.08.2009 and the appointment letter dated 10.08.2009 were only draft
copies and have not been acted upon. As regards the name of the Respondent
No.5 in the Attendance Register dated 2009, 2010 and 2011 it was mentioned
that in the copy of the Attendance Register certified by the Respondent No.6 to
the Petitioner, the name of the Respondent No.5 is not reflected. It was
mentioned that the Respondent No.6 in connivance with the Respondent No.5
may create some photo copies by pasting the name of the Respondent No.5 in
the Attendance Register for which the original copy of the Attendance Register
may be directed to be placed before this Court.
33. Further to that, it was mentioned that the Respondent No.6 who is the
present Headmaster had furnished the copy of the resolution dated 29.10.2001,
appointment letter dated 30.10.2001, joining report dated 30.10.2001 which
were certified by Respondent No.6 himself. The Petitioner had enclosed to his
Affidavit-in-Reply the minutes of the meeting of the School Managing Committee
dated 29.10.2001, the Office Order dated 30.10.2001 as well as his joining
report dated 30.10.2001 which were certified by Respondent No.6. Further to
that, it has also been mentioned that on 24.02.2015, the Respondent No.6 had
received all the documents from the earlier Headmaster which includes the
Page No.# 23/32
Attendance Register from 2000 to 2015 and the appointment file and the
question of not having the original records in his custody does not arise. To that
effect, the acknowledgement of the Respondent No.6 to the various documents
received on 24.02.2015 have been enclosed as Annexure- A/R-5 to the Affidavit-
in-Reply.
34. Further to that, it is also relevant to mention that the Respondent No.6
has filed another Affidavit-in-Reply to the Affidavit-in-Reply filed by the writ
petitioner denying the signatures in the document enclosed as Annexure- A/R-2.
Further raising question on the authenticity of the said S.M.C. resolution dated
29.10.2001 stated inter alia that the persons namely Birdutta Kalita and Shabitri
Kalita whose names appeared at Serial No.5 and 7 have denied that they were
members of the School Managing Committee. In so far as the Attendance
Register of 2001, 2002, 2003, 2005, 2010 and 2011 and S.M.C. resolution dated
29.10.2001, appointment letter dated 30.10.2001 and the joining report dated
30.10.2001, it was mentioned that at the time of handing over of the charge of
Headmaster by the earlier Headmaster, the Respondent No.6 was given only a
set of photo copies of the Attendance Register from 2000 to 2015 and some
other documents including S.M.C. resolution, appointment order and the joining
report of the writ petitioner by the earlier Headmaster and another set was
retained with him. However, after few days the earlier Headmaster asked the
Respondent No.6 to meet at his residence and accordingly, he went to the
house of the earlier Headmaster wherein he was asked to certify the photo
copies of the said set of documents retained by him. The Respondent No.6 had
mentioned that he had signed therein with good faith being working with the
earlier Headmaster since the last 25 years. The Respondent No.6 further stated
in his Affidavit-in-Reply that the set which was given to him did not contain the
Page No.# 24/32
signature of the writ petitioner for the period 2001, 2002 and 2003 and
accordingly, he had made the statement on oath that the name of the writ
petitioner does not reflect in the Attendance Register of 2001, 2002 and 2003.
Similarly, the photo copies of the Attendance Register of 2009, 2010 and 2011
as available with the Respondent No.6 reflects the signature of the Respondent
No.5. It was mentioned that the Attendance Register which the writ petitioner is
trying to show would be the Attendance Register retained by the earlier
Headmaster which might have been tampered by the Petitioner in connivance
with his elder brother wherein the Respondent No.6 had certified and put his
signature on good faith having good relation with the earlier Headmaster.
35. Further to that, it was mentioned that the earlier Headmaster have not
handed over the original records till date despite repeated request made by the
Respondent No.6. To that effect, the Respondent No.6 claimed to have
intimated the matter to the Inspector of Schools, NDC Nalbari by a
communication dated 27.05.2015 with a request to take necessary steps to
hand over the records indicated therein. It was further mentioned that since no
action was taken by the Inspector of Schools, the Respondent No.6 again issued
another communication dated 22.11.2017 requesting to make necessary
arrangement to hand over those documents. Further to that, it was also
mentioned that on 24.02.2015, the earlier Headmaster had handed over the
charge of the Headmaster of the School and he had given the photo copies of
the various documents mentioned in Paragraphs 4A to 4G, however the other
documents were given to him in original.
36. I have heard the learned counsels for the parties and have perused the
materials on record. Although, there has been various allegations and counter
allegations made by the Petitioner as well as the Respondent Nos. 5 and 6, the
Page No.# 25/32
official Respondents whose orders have been put to challenge, have not cared
to file their Affidavit-in-Opposition or made their stand clear. From the materials
on record what transpires from the admitted facts is that the Petitioner was
issued a provisional Pass Certificate on 21.10.2001 wherein it has been
mentioned that the Petitioner under Roll No.2942 had passed the exam of
Madhyama (Bisharad) from Hindi Sahitya Sammelon of center Dhamdhama in
the year 2001. There is no challenge to the said provisional certificate. It further
appears that subsequent thereto, on 30.04.2002, the Mark Sheet of the
Petitioner was issued bearing the same Roll Number being 2942 and further to
that on 09.08.2002, the final Pass Certificate was issued. All these certificates
are not subject matter of dispute. It may not be out of place to mention that it
is a practice followed of issuing a Provisional Pass Certificate followed by the
Mark Sheet as well as the Final Certificate. The Respondents have not been able
to show any other practice followed or have denied the said practice. The late
issuance of the Final Pass Certificate as well as the Mark Sheet cannot be a
reason to nullify the Provisional Pass Certificate dated 21.10.2001. Therefore, as
on 21.10.2001 the Petitioner had duly passed the Madhyama (Bisharad) from
Hindi Sahitya Sammelon of Centre Dhamdhama in the year 2001.
37. Now, the question arises as regards the Petitioner's date of appointment.
While the Petitioner claims that the School Managing Committee in its resolution
dated 29.10.2001 had adopted a resolution to appoint him as a Hindi Teacher
and subsequently on 30.10.2001, the Office Order was issued appointing him as
a Hindi Teacher and on the basis of the Office Order, the Petitioner has joined
on 30.10.2001, the Respondent Nos.5 and 6 had disputed the said aspect of the
matter. The Respondent No.5 was not there in the scene in the year 2001 and
therefore, obviously he could not have the knowledge of the same and neither
Page No.# 26/32
he could be privy to any of the records. But the Respondent No.6 in his
Affidavit-in-Opposition duly claims that he was appointed as Assistant Teacher of
the School on 01.01.1990 and he has been holding the charge of Headmaster
w.e.f. 01.02.2015 and he has been appointed as the regular Headmaster on
08.08.2017. In Paragraph No.11 of his Affidavit-in-Opposition, he categorically
stated as follows:
"The records available with the deponent shows that he was appointed on various
date i.e., appointment order dated 22.08.2001 in terms of the S.M.C. resolution
dated 21.08.2001 and appointment order dated 30.10.2001 in terms of the S.M.C.
resolution dated 29.10.2001. Similarly his joining reports also shows different dates
i.e., on 30.10.2001, 31.10.2001 and 22.08.2001 respectively. Further, the post
approval order of the Inspector of Schools, NDC, Nalbari dated 09.09.2004 indicates
his date of appointment on 02.08.2002 pursuance to the S.M.C. resolution dated
01.08.2002 indicating his date of joining on 03.08.2002 with qualification H.S.
passed and Madhama Bisharad."
38. The above quoted portion of his Affidavit clearly shows that the
Headmaster of the School i.e. the Respondent No.6 had an appointment order
dated 30.10.2001 in terms with the S.M.C. resolution dated 29.10.2001 amongst
others. It also cannot be overlooked in the post approval order of Inspector of
Schools, NDC Nalbari dated 09.09.2004, that the appointment of the Petitioner
to the School was provisionally approved by the Inspector of Schools, NDC
Nalbari. Now, the question arises as to whether the wrong quoting of the
appointment dates in the order of provisional approval or for that matter the
Petitioner therebeing two appointment orders dated 22.08.2001 and 30.10.2001
would disentitle the Petitioner to his rights for provincialisation of his services.
The documents enclosed to the Affidavit-in-Reply by the Petitioner which are
Page No.# 27/32
certified copies of the resolution dated 29.10.2001, the Office Order dated
30.10.2001 and the joining report dated 30.10.2001, all certified by the
Respondent No.6 would be pointer to the fact that the Petitioner was appointed
on the basis of the resolution adopted on 29.10.2001 and thereafter, his
appointment order was issued on 30.10.2001 and consequently, the Petitioner
joined on 30.10.2001. It is also relevant to take note of that in the Affidavit-in-
Reply filed by the Respondent No.6 to the Affidavit-in-Reply of the Petitioner, he
has not denied the certification being given to those documents enclosed as
Annexure- A/R-2, Annexure- A/R-3 and Annexure- A/R-4 but gives an
explanation to the fact that due to good relation with the earlier Headmaster, he
had certified the said documents. This prima facie appears to be an
afterthought inasmuch as the said stand was not taken in the Affidavit-in-
Opposition filed by the Respondent No.6 initially but was taken in the Affidavit-
in-Reply by the Respondent No.6 to the Affidavit-in-Reply filed by the Petitioner.
It is also relevant to take note of that not only the Inspector of Schools, NDC
Nalbari had provisionally approved the appointment of the Petitioner in its order
dated 09.09.2004, the Inspector of Schools had also vide a communication
dated 19.07.2006 forwarded the names of various Hindi Teacher Orientation
Course conducted by the Central Institute of Hindi, Guwahati to be held at
Shiksha Bhawan, Chowk Bazar, Nalbari and the Petitioner's name duly appeared
at Serial No.33.
39. Further to that, on 12.08.2006 the Academic Register of the Central
Institute of Hindi, Guwahati had certified the participation of the Petitioner in
the said course and he was released on 12.08.2006 from the aforesaid course.
These documents would clearly show that the Petitioner was a Hindi Teacher of
the School in question prior to the appointment of the Respondent No.5 on
Page No.# 28/32
10.08.2009 as claimed by the Respondents. At this stage, it may not also be out
of place to mention that the Petitioner had denied the receipt of the
appointment letter dated 22.08.2001 and the joining report as Hindi Teacher on
31.10.2001. It further reveals that the Office Order dated 30.10.2001 enclosed
as Annexure-11 to the Affidavit-in-Opposition filed by the Respondent No.5 is
completely different from the Office Order dated 30.10.2001 enclosed as
Annexure- A/R-3. It is not known how the Respondent No.5 had access to
Annexure-11 to his Affidavit-in-Opposition. The difference can be seen from the
fact that the document enclosed as Annexure-11 is a document in the letterhead
of Office of the Headmaster cum Secretary Pashchim Banbhag Anchalik High
School, whereas the document as Annexure- A/R-3 is the document in the
letterhead of Office of Paschim Banbhag Anchalik High School. The contents of
Anexure-11 and Annexure- A/R-3 are also different, inasmuch as in Annexure-
11, it was mentioned that the petitioner may be terminated from his service at
any time without assigning any reasons thereof but the said sentence is not
seen in Annexure- A/R-3. But it has to be taken into account that Annexure-
A/R-3 had been admittedly certified by the Respondent No.6.
40. The next aspect of the matter which also needs to be taken into
consideration is the Attendance Register. While the Petitioner claims that in the
Attendance Register which have been certified by the Respondent No.6, clearly
shows that his signature was duly recorded in the year 2001, 2002 and 2003,
whereas the Respondents have produced an Attendance Register wherein there
is no signature of the Petitioner but there are signatures of Respondent No.5 for
the period from 2009 onwards.
41. Now, let this Court take into consideration the impugned order in both the
writ petitions. In WP(C) No.4733/2018, the order dated 07.05.2018 has been
Page No.# 29/32
put to challenge. The order dated 03.09.2018 passed in I.A.(Civil)
No.3118/2018, the relevant portion of which have been quoted hereinabove
would clearly show that the order dated 07.05.2018 has been passed in
complete violation to the orders passed by this Court for which the said order on
the face of it is nullity. In pursuance to the order being passed on 03.09.2018 by
this Court, the impugned order dated 14.09.2018 was passed.
42. From a perusal of the impugned order dated 14.09.2018, it would show
that the Commissioner and Secretary on the basis of the inconsistencies as
regards the multiple dates of appointment recorded in the different official
records had rejected the claim of the Petitioner. Another reason why the claim of
the Petitioner was rejected is that the Petitioner was appointed prior to
acquiring a Degree in Madhyama Bisharad and actual production of Pass
Certificate. This Court is of the opinion that the Commissioner and Secretary
while passing the impugned order have completely failed to take into account
that there was a Provisional Pass Certificate issued on 21.10.2001 clearly
indicating that the Petitioner had passed the examination in question. It is not
known on what basis the Commissioner and Secretary had come to the
conclusion that on the basis of Provisional Pass Certificate the appointment was
illegal. More so, when the said Provisional Pass Certificate is backed by the Final
Certificate issued as well as the Mark Sheet issued which clearly show the
authenticity of the Provisional Pass Certificate. These conclusions so reached by
the Commissioner and Secretary in coming to the finding that the Petitioner was
given appointment even prior to actual production of the Pass Certificate was
not at all germane to the issues involved. More so, when the Provisional Pass
Certificate as stated hereinabove was backed by the Final Certificate and the
Mark Sheet which as per the normal practice was issued later on.
Page No.# 30/32
43. The other ground taken for rejecting the contention of the Petitioner by
the Commissioner and Secretary was that there were multiple dates of
appointment recorded in the different official records. But surprisingly, the
Commissioner and Secretary did not take into consideration that the Inspector
of Schools has given a provisional approval to the Petitioner's appointment on
09.09.2004, which clearly shows that the Petitioner's appointment was
provisionally approved in the official records as on 09.09.2004. It would have
been understable if the Respondent No.5's appointment was prior to
02.08.2002 and the question of the various dates of appointments would have
been germane. But admittedly till 2009, the Respondent No.5 was nowhere in
the scene. Further to that, the Commissioner and Secretary failed to take into
consideration that on 19.07.2006, the Inspector of Schools, NDC, Nalbari has
forwarded the names of the various teachers for orientation course and the
Petitioner's name duly appeared at Serial No.33 wherein it has been shown that
the Petitioner was a Hindi Teacher in respect to the School in question. The
completion certificate was issued on 12.08.2006. There were clear materials on
records that the Petitioner was duly appointed in the School as a Hindi Teacher
prior to the Respondent No.5.
44. Merely finding that the procedure adopted in the selection and
appointment of the Respondent No.5 during the venture stage to be proper and
the Respondent No.5's date of appointment and joining recorded on 10.08.2009
to be genuine, the Commissioner and Secretary held that the Respondent No.5
has been serving as a Hindi Teacher at the School till date. It is not known what
is the basis on which the Commissioner and Secretary had come to the finding
except the statement of the Respondent No.6 who seems to have supported
the Respondent No.5.
Page No.# 31/32
45. In view of the above, this Court is of the opinion that the order dated
14.09.2018 has been passed without taking into account various material facts
which are germane to the issue and rather had taken into account certain
irrelevant materials as discussed hereinabove for which the impugned order
dated 14.09.2018 is set aside and quashed.
46. At this stage, it may also be relevant to take note of that one of the
preliminary objections taken to the effect that Petitioner's provincialisation order
dated 10.07.2015 has not been put to challenge. The order dated 16.02.2018
passed in WP(C) No.4565/2015 (the writ petition wherein the order dated
10.07.2015 was put to challenge) would show that all earlier orders including
the order of provincialisation was made subject to the enquiry to be done by the
appointed committee and the subsequent orders of the Commissioner and
Secretary passed thereto. Therefore, the said order dated 10.07.2015 had
already been made subject to the outcome of the said proceedings and the fall
out of the said proceedings in the order dated 14.09.2018 which have been set
aside and quashed by this Court.
47. In view of the above, this Court therefore disposes of the instant writ
petitions with the following observations and directions.
(I) The orders dated 07.05.2018 and 14.09.2018 are set aside and
quashed.
(ii) The Commissioner and Secretary to the Government of Assam,
Secondary Education Department is directed to reconsider the case of the
Petitioner and the Respondent No.5 in the light of the observations made
hereinabove and the same should be done within a period of 60 days
from the date of certified copy of the instant judgment is served upon the
Commissioner and Secretary to the Government of Assam, Secondary
Page No.# 32/32
Education Department.
(iii) The order of the provincialisation of the Respondent No.5 and the
various benefits accrued therefrom to the Respondent No.5 shall be
subject to the orders to be passed by the Commissioner and Secretary in
terms with directions made in Serial No. (ii) hereinabove.
48. With above observations and directions, both the instant writ petitions
stands disposed of.
JUDGE
Comparing Assistant
