Sanjib Kumar Talukdar vs The State Of Assam And 3 Ors
2022 Latest Caselaw 2155 Gua

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GAHC010116812022




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

                             Case No. : WP(C)/3963/2022

         SANJIB KUMAR TALUKDAR
         S/O. LT. PHATIK CHANDRA TAUKDAR, R/O. RAIPUR, P.O. RAIPUR, P.S.
         PATARCHARKUCHI, DIST. BARPETA, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REP. THROUGH THE SPECIAL COMMISSIONER TO THE GOVT. OF ASSAM,
         EDUCATION DEPTT., SACHIVALAYA, DISPUR, PIN-781006.

         1:(A) THE SECRETARY TO THE GOVT. OF ASSAM

          EDUCATION (SECONDARY)
          SACHIVALAYA
          DISPUR
          PIN-781006.

         2:THE DIRECTOR OF SECONDARY EDUCATION

          ASSAM
          KAHILIPARA
          GUWAHATI-781019.

         3:THE INSPECTOR OF SCHOOLS

          BARPETA DISTRICT CIRCLE
          BARPETA
          ASSAM.

         4:SRI RANJAN KUMAR CHAKRABORTY

          ASSTT. TEACHER
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              BAJALI HIGHER SECONDARY SCHOOL
              DIST. BARPETA
              ASSAM

Advocate for the Petitioner     : MR. P K GOSWAMI

Advocate for the Respondent : SC, SEC. EDU.




                                                BEFORE
                     HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                                ORDER

16-06-2022

Heard Mr. P. K. Goswami, learned Senior counsel assisted by Ms. B. Chowdhury, learned counsel for the petitioner and Mr. R. Mazumdar, learned Standing counsel, Secondary Education Department of the State for the respondent Nos. 1, 2 & 3. Also heard Mr. K. N. Choudhury, learned Senior counsel assisted by Mr. J. Patowary, learned counsel for the private respondent No. 4/caveator.

2. The matter pertains to seniority dispute in service between the petitioner Sri Sanjib Kumar Talukdar and the respondent No. 4 Sri Ranjan Kumar Chakravarty. Petitioner and the respondent No. 4 are Assistant Teachers and both of them are serving in Bajali Higher Secondary School, Pathsala under the Inspector of Schools, Barpeta District Circle, Barpeta.

3. The petitioner joined the post of Assistant Teacher in Bajali Higher Secondary School, Pathsala on 27.04.1994 whereas, the respondent No. 4 joined in Paka Higher Secondary School on 28.03.1992.

4. In compliance of the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020, while disposing of the dispute of seniority between the petitioner and the respondent No. 4, the Secretary to the Government of Assam in the Secondary Education Department by the impugned order under No. ASE. 389/2020/Pt/192 dated 06.06.2022, found the respondent No. 4 to be senior in service to the petitioner, Assistant Teacher of the same school as the respondent No. 4, who joined as Assistant Teacher in Paka H. S. School on 28.03.1992 was transferred from said School to Bajali H. S. School in public interest on 27.04.2005 (Annexure-8).

5. It is submitted by Mr. P. K. Goswami, learned Senior counsel for the petitioner that the Page No.# 3/11

impugned order dated 06.06.2022 of the Secretary to the Government of Assam in the Secondary Education Department determining the respondent No.4 senior to the petitioner should be set aside and quashed as it is not in conformity with the direction of the Court dated 01.03.2021 passed in WP(C) No. 4620/2020.

6. Mr. Goswami, learned Senior counsel submitted that from the impugned order dated 06.06.2022, it can be seen that hearing of the matter took place on 25.10.2021 in the Office Chamber of the Special Commissioner, Secondary Education Department which was attended by both the petitioner and the respondent No. 4 and others, whereas the impugned order has been passed by the Secretary to the Government of Assam in the Secondary Education Department, who was not present during the said hearing on 25.10.2021. As such, Mr. Goswami submitted that impugned order dated 06.06.2022 of the Secretary; Secondary Education Department of the State is liable to be set aside and quashed.

7. In this regard, relying on a decision of the Constitution Bench Judgment of the Hon'ble Supreme Court in the case of Gullapalli Nageswara Rao and Others -Vs- Andhra Pradesh State Road Transport Corporation and Another, reported in AIR 1959 SC 308, Mr. Goswami, learned Senior counsel submitted that - If one person hears and another decides, then personal hearing becomes an empty formality and such procedure offends basic principle of judicial procedure.

8. By placing the paragraph Nos. 6, 7, 8, 9, 10 & 11 from the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020 (Annexure-4), Mr. Goswami, learned Senior counsel for the petitioner submitted that since the respondent authorities in the Secondary Education Department while issuing the impugned order dated 06.06.2022 did not comply with the same, therefore, the said order dated 06.06.2022 should be set aside and quashed. Mr. Goswami, submitted that in the judgment & order dated 01.03.2021 passed in said WP(C) No. 4620/2020, the Court specifically directed the Commissioner & Secretary to the Government of Assam in the Secondary Education Department to decide the issue relating to seniority between the petitioner and the respondent No. 4, whereas the impugned order has been passed by the Secretary to the Government of Assam in the Secondary Education Department, who was not empowered to pass the said order dated 06.06.2022.

9. Mr. Goswami, placed before the Court that while disposing of said WP(C) No. 4620/2020, the Court by the judgment and order dated 01.03.2021, directed the Commissioner & Secretary, Secondary Education Department, Assam to consider certain specific issues and the Secretary of the Secondary Education Department of the State while determining the seniority of the respondent No. 4 Page No.# 4/11

above the petitioner by the impugned order dated 06.06.2022 did not consider all those aspects and the directions of the Court dated 01.03.2021.

10. It is submitted by Mr. Goswami, learned Senior counsel for the petitioner that for all such reasons, the impugned order dated 06.06.2022 passed by the Secretary, Secondary Education Department of the State determining the respondent No. 4 to be senior to the petitioner, being not sustainable in law should be set aside and quashed.

11. On the other hand, Mr. Mr. K. N. Choudhury, learned Senior counsel appearing for the private respondent No. 4 by placing his transfer order dated 27.04.2005 issued by the Inspector of Schools, Barpeta District Circle, Barpeta under Memo No. E/A-Misc/2/04/3562-657 submitted that the respondent No. 4 Assistant Teacher of Paka Higher Secondary School was transferred and posted at Bajali Higher Secondary School, Pathsala at his own grade and scale of pay, in the interest of public service, vice one Sri Tapan Kakati, Assistant Teacher of Bajali H.S. School transferred to Paka H. S. School (respondent No. 4).

12. Mr. Choudhury, learned Senior counsel also placed before the Court that in pursuance of the order dated 06.06.2022 of the Secretary, Secondary Education Department, Government of Assam, holding the respondent No. 4 senior to the petitioner; the Director of Secondary Education, Assam by order No. GB-EST/DSE/CC/248/2016/406 dated 13.06.2022 temporarily allowed the respondent No. 4, Assistant Teacher of Bajali H.S. School, Pathsala, to hold the charge of Principal of the said School in addition to his normal duties as Assistant Teacher along with financial power as per the provisions of FR 49(C) to draw and disburse salary etc. of the staff of the said school relieving the petitioner from the charge of Principal of the said school. Mr. Choudhury also stated that the DSE, Assam by the said order dated 13.06.2022, also cancelled its earlier order No. GB-EST/DSE/CC/248/2016/305 dated 02.11.2020 whereby the petitioner was temporarily allowed to hold the charge of Principal of said Bajali H.S. School, Pathsala, in addition to his normal duties as its Assistant Teacher along with financial power as per the provisions of FR 49(C) to draw and disburse salary etc. of the staff of the said school. It is further stated by Mr. Choudhury, learned Senior counsel that pursuant to said order dated 13.06.2022 of the DSE, Assam, the respondent No. 4 has already taken over the charge of Principal of said Bajali H.S. School, Pathsala.

13. Mr. Choudhury, learned Senior counsel from the impugned order dated 06.06.2022 passed by the Secretary, Secondary Education Department, placed before the Court that the concerned Secretary have passed the impugned order determining seniority of the respondent No. 4 above the Page No.# 5/11

petitioner in service as the Inspector of Schools, Barpeta by its letter dated 14.02.2022 informed the Government in the Secondary Education Department that the then Inspector of Schools, Barpeta transferred the respondent No.4 to Bajali H.S. School, on public interest.

14. It is also submitted by Mr. Choudhury, learned Senior counsel that since the Commissioner & Secretary to the State Government in the Secondary Education Department is no longer available, therefore, in compliance of the judgment and order dated 01.03.2021 passed by the Court in WP(C) No. 4620 of 2020 it is the Secretary in the Secondary Education Department who have passed the impugned order. Therefore, Mr. Choudhury, learned Senior counsel submitted that the said action on the part of the respondent No. 1, Secretary to the Government of Assam in the Secondary Education Department in no way vitiates the impugned order dated 06.06.2022.

15. Perused the records placed before the Court today by Mr. Mazumdar, learned Standing counsel, Secondary Education Department.

16. Records reveal that the petitioner joined the post of Assistant Teacher in Bajali Higher Secondary School, Pathsala on 27.04.1994 on being appointed by the Inspector of Schools, Barpeta District Circle, Barpeta on adhoc basis for a period of three months. Later, the Inspector of Schools, Barpeta District Circle, Barpeta by an order dated 18.04.2001 regularised his service w.e.f. 27.04.1994. On the other hand on being selected by the District Level Selection Board, Barpeta, the Inspector of Schools, Barpeta District Circle, Barpeta by order dated 28.03.1992 appointed the respondent No. 4 as an Assistant Teacher and posted him at Paka Higher Secondary School, pursuant to which he joined his service in the said school on 28.03.1992.

17. It is seen that with regard to the seniority dispute between the petitioner and the respondent No. 4, the Commissioner & Secretary to the State Government in the Secondary Education Department earlier passed an Order under No.ASE.389/2020/111 dated 31.10.2020 and determined seniority of the petitioner in service above the respondent No. 4 in Bajali H.S. School, Pathsala. Pursuant to the same, the DSE, Assam by Order No. GB-EST/DSE/CC/248/ 2016/305 dated 02.11.2020, temporarily allowed the petitioner, Assistant Teacher of Bajali H.S. School, Pathsala, to hold the charge of Principal of the said School in addition to his normal duties as Assistant Teacher along with financial power as per the provisions of FR 49(C) to draw and disburse salary etc. of the teaching and non-teaching staff of the said school as the Principal of the said School, Sri Binod Saikia retired on 31.10.2020 and accordingly the petitioner on 03.11.2020 joined as Principal In-Charge of said Bajali H.S. School, Pathsala.

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18. The respondent No.4 being aggrieved with all these, preferred the said WP(C) No. 4620/2020, which was disposed of by the Court on 01.03.2021 with the following observation:-

"8. We have gone through the records produced by Mr. R. Mazumdar, learned counsel for the Secondary Education Department of Government of Assam. The records reveal that on 13.04.2005, as indicated above, an application was made by the petitioner Sri Ranjan Kumar Chakravarty seeking a transfer on personal interest. The records do not reveal whether the subsequent application for withdrawal of the earlier application by the petitioner Sri Ranjan Kumar Chakravarty was received in the office of the Inspector of Schools but the note-sheet contains an order dated 25.04.2005 by which the application of the petitioner Sri RanjanKumar Chakravarty dated 13.04.2005 was rejected on the ground of unavailability of any vacant post in the Bajali Higher Secondary School. The note-sheet further reveals that by an order dated 27.04.2005 Sri Ranjan Kumar Chakravarty was transferred to Bajali Higher Secondary School in place of Sri Tapan Kakati.

9. From a reading of the note-sheet it is not discernable whether the decision to transfer the petitioner Sri Ranjan Kumar Chakravarty to Bajali Higher Secondary School in place of Sri Tapan Kakati was in continuation of the consideration of the application dated 13.04.2005 or it was a fresh consideration in the public interest which was unconnected with his application dated 13.04.2005.

10. The note-sheet also does not make it discernable whether the consideration of the application dated 13.04.2005 of Sri Ranjan Kumar Chakravarty came to an end as per the order dated 25.04.2005 or on 25.04.2005 the matter was kept pending and subsequently on 26.04.2005 when the occasion arose for a requirement of transfer of Sri Tapan Kakati the authorities in furtherance of his earlier application dated 13.04.2005 had transferred Sri Ranjan Kumar Chakravarty.

11. As the materials on record would be insufficient to arrive at a definite conclusion by this Court on the aforesaid two possibilities, we remand the matter back to the Commissioner and Secretary in the Secondary Education Department of Government of Assam to take a fresh decision on the matter without being influenced by any of the earlier conclusions that he may have arrived and in doing so, the Commissioner and Secretary shall confer with the Inspector of Schools of Barpeta as well as take into consideration all the records, so as to arrive at an appropriate conclusion as to whether the transfer of the petitioner Sri Ranjan Kumar Chakravarty on 27.04.2005 was pursuant to his application dated 13.04.2005 or whether the consideration of the said application came to an end on 25.04.2005 when it was rejected for want of vacant post or whether the process for considering the application dated 13.04.2005 continued till the availability of a vacant post which had occasioned on 26.04.2005 on the requirement to transfer Sri Tapan Kakati.

12. The reasoned order be passed by the Commissioner & Secretary within a period of one month from the date of receiving the certified copy of the order and in doing so, the writ petitioner Sri Ranjan Kumar Chakravarty and the respondent no. 5 Sri Sanjib Kumar Talukdar be given a personal hearing to substantiate their own respective cases.

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13. Both the petitioner and the respondent no. 5 would be at liberty to produce any material in furtherance of their respective stands at the time of hearing before the Commissioner and Secretary.

14. Any order to be passed by the Commissioner and Secretary pursuant to this order shall prevail over the earlier order dated 31.10.2020 which was impugned in this writ petition.

15. Writ petition stands disposed of in the above terms."

19. It is seen from the Para 11 of the said judgment and order dated 01.03.2021, the Court while remanding the matter back to the Commissioner & Secretary, Secondary Education Department, directed the said authority to take a fresh decision on the matter of seniority between the petitioner and the respondent No. 4 without being influenced by any of the earlier conclusions that he might have arrived with and while doing the said exercise, said Commissioner & Secretary was directed to confer with the Inspector of Schools, Barpeta as well as take into consideration all the records, so as to arrive at an appropriate conclusion as to whether the transfer of the present respondent No. 4 Sri Ranjan Kumar Chakravarty on 27.04.2005 was pursuant to his application dated 13.04.2005 or whether the consideration of the said application came to an end on 25.04.2005 when it was rejected for want of vacant post or whether the process for considering the application dated 13.04.2005 continued till the availability of a vacant post which had occasioned on 26.04.2005 on the requirement to transfer of Sri Tapan Kakati, Assistant Teacher of Bajali H.S. School, Pathsala.

20. Though in the impugned order dated 06.06.2022 issued by the Secretary to the Government of Assam in the Secondary Education Department, there is mention that a report was called from the Inspector of Schools, Barpeta vide letter No. ASE 389/2020/Pt/177 dated 30.12.2021, pursuant to which, the Inspector of Schools, Barpeta vide letter No. Esstt/APPTT/pl/2016/1/1668 dated 14.02.2022 informed the Government in the Secondary Education Department that the then Inspector of Schools, Barpeta transferred the respondent No. 4 on public interest; but on perusal of the said letter dated 14.02.2022, also annexed to the writ petition as Annexure-5, it can be seen that the relevant record of transfer of the respondent No. 4 from Paka H.S. School to Bajali H.S. School was with the Standing counsel, Education Department of this Court at the relevant time and the impugned order dated 06.06.2022, did not disclose anything with regard to the specifications directed by the Court at Para 11 of the said judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020. It is seen that in the impugned order dated 06.06.2022 the specifications as directed by the Court in its judgment and order dated 01.03.2021 remained unattended/unanswered.

21. From the records it is seen that as the matter in considering the issue of seniority in service Page No.# 8/11

between the petitioner and the respondent No. 4, as directed in the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020 got delayed, the respondent No.4 preferred a Contempt Petition being Cont.Cas (C) No. 68/2022 against one Sri Preetom Saikia, Special Commissioner to the Government of Assam, Education (Secondary) Department. It is also seen that on 13.05.2022, the counsel for the said Contemnor submitted before the Court that the concerned contemnor has already demitted his office. The Court accordingly, on 13.05.2022, in said Cont.Cas (C) No. 68/2022 directed that on the next date of the case, information shall be placed before the Court as to whether the said contemnor prior to demitting his office had passed an order as directed by the Court on 01.03.2021 in WP(C) No. 4620/2020 or not.

22. From the records it is also seen that though in terms of the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020 the hearing should have been before the Commissioner & Secretary, Secondary Education Department, but the hearing took place on 25.10.2021 before the Special Commissioner to the Government of Assam, Secondary Education Department, Mr. P. Saikia in which (i) the Additional Secretary to the Government of Assam, Secondary Education Department, Mr. F.H. Choudhury; (ii) the Joint Director of Secondary Education, Assam Mr. R. Rongpi; (iii) the Inspector of Schools, Barpeta; (iv) the Principal In-Charge of Bajali H.S. School, Pathsala, (v) the petitioner and

(vi) the respondent No. 4 participated.

23. The records reveal that after the said hearing dated 25.10.2021, the Additional Secretary to the Government of Assam in the Secondary Education Department Mr. F.H. Choudhury on 30.12.2021 vide No. ASE.389/2020/Pt/177 wrote to the Inspector of Schools, Barpeta requesting him to furnish the relevant information at the earliest indicating - Whether the transfer of Ranjan Kumar Chakravarty (present respondent No. 4) on 27.04.2005 was pursuant to his application dated 13.04.2005 or whether the consideration of the said application came to an end on 25.04.2005 when it was rejected for want of vacant post or whether the process for considering the application dated 13.04.2005 of the respondent No. 4 continued till the availability of a vacant post, which had occasioned on 26.04.2005 on the requirement of transfer of Sri Tapan Kakati. The Inspector of Schools, Barpeta replied the same on 14.02.2022, which is already indicated above (Annexure-5 to this petition).

24. From the records it is seen that on 18.05.2022, after filing of said Contempt Case by the respondent No. 4, the Additional Secretary to the Government of Assam in the Secondary Education Department wrote to the Secretary to the Government of Assam in the Secondary Education Department for issuance of a Speaking Order on the basis of points and notes made therein by him, categorically observing that the respondent No. 4 was transferred to Bajali H.S. School in the same Page No.# 9/11

district by the Inspector of Schools, Barpeta District Circle, Barpeta vide order No. E/A/Misc/2/04/3652-657 dated 24/4/2005. On the same date, the said Additional Secretary, Secondary Education Department also directed the Superintendent to submit a Draft Speaking Order.

25. On being enquired by the Court, Mr. Mazumdar, learned Standing Counsel, Secondary Education Department submitted that 24.04.2005 was Sunday, a holiday. Record further, reveals that the Superintendent submitted the Draft Speaking Order on 24.05.2022 before the Additional Secretary, Secondary Education Department who in turn placed the same before the Secretary of the Secondary Education Department on 25.05.2022 which was approved by the Secretary as well as by the Departmental Minister on 27.05.2022. However, the draft of the impugned order as available in the records reflects that it was signed by the Secretary of the Secondary Education Department on 30.05.2022 and by the Additional Secretary, Secondary Education Department on 08.08.2022.

26. From the verification of the records as well as the impugned order dated 06.06.2022 the Court found that though the matter was heard by the Special Commissioner to the Government of Assam in the Secondary Education Department Mr. P. Saikia on 25.10.2021 instead of the Commissioner & Secretary, Secondary Education Department as directed by the Court on 01.03.2021 in WP(C) No. 4620/2020, but the impugned order dated 06.06.2022 has been passed by the Secretary to the Government of Assam in the Secondary Education Department, who was not present during the said hearing held on 25.10.2021.

27. Further, from the perusal of the impugned order dated 06.06.2022 issued by the Secretary to the Government of Assam in the Secondary Education Department, it is seen that in its determination, the said order did not contain the findings, as directed by the Court, more specifically provided at Para 11 of the said judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020. The Court found that the Secretary to the Government of Assam in the Secondary Education Department in the impugned order dated 06.06.2022 is totally silent with regard to the specification made by the Court at Para 11 of the judgment and order dated 01.03.2021 passed in said WP(C) No. 4620/2020.

28. For the reasons above and for violation of the law as laid down by the Hon'ble Supreme Court of India in the case of Gullapalli Nageswara Rao (supra), and not being in conformity with the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020, the impugned order No.ASE 389/2020/Pt/192 dated 06.06.2022 issued by the Secretary to the Government of Assam in the Secondary Education Department (Annexure-8 to this petition), being not tenable in law, is set aside and quashed.

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29. As such, the consequential order No. GB-EST/DSE/CC/248/2016/406 dated 13.06.2022 passed of the Director of Secondary Education, Assam temporarily allowing the respondent No. 4, Assistant Teacher of Bajali Higher Secondary School, Pathsala to hold the charge of Principal (on in-charge basis) of the said School in addition to his normal duties as Assistant Teacher along with financial power as per the provisions of FR 49(C) to draw and disburse salary etc. is also set aside and quashed.

30. Since there is no Commissioner & Secretary to the Government of Assam in the Secondary Education Department as submitted by Mr. R. Mazumdar, learned Standing Counsel, Secondary Education, for the interest of justice the matter is now remanded back to the Secretary to the Secondary Education Department of the State to re do the exercise afresh in terms of the judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020 after hearing the petitioner, the respondent No. 4 and the Inspector of Schools, Barpeta and on verification of all the relevant records as directed in said judgment and order dated 01.03.2021, complying the directions made at Para Nos. 11, 12 and 13 of the said judgment and order dated 01.03.2021 passed in WP(C) No. 4620/2020.

31. The petitioner shall submit the certified copy of this order before the Secretary to the Government of Assam in the Secondary Education Department forthwith obtaining necessary acknowledgement from the said authority in that regard. The Secretary to the Government of Assam in the Secondary Education Department shall complete the entire process within a period of 30 days from the date of receipt of the certified copy of this order to be furnished by the petitioner.

32. Respondent No. 4 stated that pursuant to the order No. GB-EST/DSE/CC/ 248/2016/406 dated 13.06.2022 of the Director of Secondary Education, Assam he has taken over as Pricipal in-charge of Bajali Higher Secondary School, which now has been set aside and quashed, as noted above. Considering the same and for smooth functioning and running of Bajali Higher Secondary School, Pathsala, it is directed that till such decision of the Secretary to the Government of Assam in the Secondary Department, as directed above, the Inspector of Schools, Barpeta District Circle, Barpeta shall look after the management of said Bajali Higher Secondary School and he shall also function as the Drawing and Disbursing Officer in respect of salary etc. of the teaching and non-teaching staff of the said H.S. School. It is made clear that till such decision of the Secretary to the Government of Assam in the Secondary Department, the Inspector of Schools, Barpeta District Circle, Barpeta shall not allow any other teacher of said Bajali Higher Secondary School to look after its management without the leave of the Court.

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33. With the above observation and direction, this writ petition stands allowed to the extent above.

34. Return the records to Mr. R. Mazumdar, learned Standing counsel, Secondary Education Department obtaining necessary acknowledgement from him in that regard.

JUDGE

Comparing Assistant