Anima Deka vs The State Of Assam And 3 Ors
2022 Latest Caselaw 767 Gua

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GAHC010031142022




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

                                 Case No. : WP(C)/1535/2022

            ANIMA DEKA
            W/O- MATIRAM DEKA, VILL. AND P.O. MANDAKATA, P.S. BAIHATA
            CHARIALI, KAMRUP, ASSAM, PIN- 781121.



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
            OF ELEMENTARY EDUCATION, GOVERNMENT OF ASSAM, DISPUR, GHY-
            06.

            2:THE CHAIRMAN
             SMC

             UDAYAN SANTI NIKETAN BEZERA
             KAMRUP.

            3:THE SECRETARY
             SMC
             UDAYAN SANTI NIKETAN BEZERA
             KAMRUP.

            4:THE PRINCIPAL
             UDAYAN SANTI NIKETAN BEZERA
             KAMRUP

Advocate for the Petitioner   : MR. B K DAS

Advocate for the Respondent : SC, ELEM. EDU
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                          BEFORE
     HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                    ORDER

04.03.2022

Heard Mr. BK Das, learned counsel for the petitioner. Also heard Mr. B Kaushik, learned counsel for the respondent No.1 being the authorities under the Elementary Education Department, Government of Assam.

Issue notice, returnable by six weeks.

Extra copies of the writ petition be served on the learned counsel for the respondents as indicated hereinabove within three days.

Petitioner to take steps for service of notice on the respondents No.2, 3 and 4 by registered post with A/D within three days.

The petitioner who is an Assistant Teacher in the Udayan Shanti Niketan School in the Kamrup district had been discharged from service by the order dated 11.12.2021 of the Udayan Shanti Niketan Educational & Social Welfare Trust, Kamrup, Assam. Admittedly, the Udayan Shanti Niketan School is a private school maintained by the Udayan Shanti Niketan Educational & Social Welfare Trust. A reading of the order dated 11.12.2021 makes it discernible that the Secretary of the Vidhyalaya Parichalana Samiti was of the view that there were certain derelictions of duty on the part of the petitioner, and, therefore, the Samity was of the view that the conduct of the petitioner was not in conformity with Section 24 (i) & (v) of the Assam Non -Government Educational Institution (Regulation and Management Rules, 2007) (for short, the Rules of 2007).

We have perused the provisions of Rules of 2007 and noticed that the relevant provisions would perhaps be Rule 24(1)(a)(i)(v). Although the Page No.# 3/4

Secretary of the Secretary of the Vidhyalaya Parichalana Samiti seeks to describe the provisions as Section 24 (i) & (v) of the Rules of 2007, what is further noticed is that Rule 24 provides for a code of conduct of the teachers and any violation thereof may be a misconduct. But in order to impose a penalty, the procedure prescribed in Rule 21 of the Rules of 2007 would also have to be followed.

A reading of the order impugned dated 11.12.2021 does not inspire the confidence that the procedure under Rule 21 had been followed in discharging the petitioner.

Mr. B Kaushik, learned counsel for the Elementary Education Department points out that the authority who had passed the order of discharge is an authority under a private educational institution and, therefore, a petition under Article 226 of the Constitution may not be maintainable.

Mr. BK Das, learned counsel for the petitioner has relied upon the pronouncement of the Supreme Court rendered in paragraph 15 of its judgment in Marwarii Balika Vidyalaya Vs. Asha Srivastava & Others reported in (2020) 14 SCC 449 wherein by referring to an earlier pronouncement of the Supreme Court in Ramesh Ahluwalia Vs. State of Punjab & Ors. reported in (2012) 12 SCC 331 it has been held that a writ petition under Article 226 of the Constitution of India would also be maintainable against a private un-aided educational institution.

Considering the procedural aberration and the prima facie case being made out by the petitioner and in view of the balance of convenience and irreparable loss that the petitioner may suffer, the order of discharge dated 11.12.2021 shall remain stayed until further order.

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List after six weeks.

JUDGE

Comparing Assistant