Gauhati High Court

Asma Ahmed vs The State Of Assam And 9 Ors on 30 January, 2023

                                                         Page No.# 1/12

GAHC010127472021




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

                     Case No. : I.A.(Civil)/1590/2021

         ASMA AHMED
         W/O- LATE ZAFAR SHWARIF,, VILL- KANHARA, P.O. TUKRAPARA,
         P.S. CHHAYGAON, DIST.- KAMRUP, ASSAM, PIN- 781137



         VERSUS

         THE STATE OF ASSAM AND 9 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
         EDUCATION (ELEMENTARY) DEPTT., DISPUR, GHY-6

         2:THE STATE LEVEL SCRUTINY COMMITTEE
          REP. BY THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM KAHILIPARA
          GHY-19

         3:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM KAHILIPARA
          GHY-19

         4:THE DISTRICT SCRUTINY COMMITTEE FOR ELEMENTARY
         EDUCATION
          REP. BY ITS CHAIRMAN CUM DY. COMMISSIONER OF KAMRUP
         DISTRICT
         ASSAM
          PIN- 781031

         5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          KAMRUP
          DIST.- KAMRUP
         ASSAM
          PIN- 781031
                                                            Page No.# 2/12


            6:THE BLOCK ELEMENTARY EDUCATION OFFICER
             CHHYGAON
             DIST.- KAMRUP
            ASSAM
             PIN- 781031

            7:THE HEADMASTER CUM SECY. OF SADAGAR MOLLAH M.E
            MADRASSA
            VILL- MANJURI BIL
             P.O. TUKRAPARA
             P.S. CHHAYGAON
             DIST.- KAMRUP
            ASSAM
             PIN- 781137

            8:SAMSUL ALOM
            TUTOR OF 2 NO. TUKURAPARA L.P.SCHOOL
             C/O- HEAD MASTER OF 2 NO. TUKURAPARA L.P.SCHOOL
            VILL AND P.O. TUKRAPARA
             P.S. CHHAYGAON
             DIST.- KAMRUP
            ASSAM
             PIN- 781137

            9:HATEM ALI AHMED
             S/O- ABDUL HALIM
            VILL.- MANJURI BIL
             P.O.- TUKRAPARA
             P.S.- CHHAYGAON
             DIST.- KAMRUP
            ASSAM
             PIN- 781137.

            10:MOBARAK HUSSAIN
             S/O- LT. NABAB ALI
            VILL.- GHORAMARA
             P.O.- BAURIBHITA
             P.S.- CHHAYGAON
             DIST.- KAMRUP
            ASSAM
             PIN- 781137

Advocate for the Petitioner   : MR. M U MAHMUD

Advocate for the Respondent : SC, ELEM. EDU
                                             Page No.# 3/12




Linked Case : I.A.(Civil)/1836/2022

HATEM ALI AHMED
S/O- ABDUL HALIM
RESIDENT OF VILLAGE- MANJURI BIL
P.O.- TUKRAPARA
P.S.- CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137


VERSUS

THE STATE OF ASSAM 10 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
GUWAHATI-781006.

2:THE STATE LEVEL SCRUTINY COMMITTEE

REPRESENTED BY THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE DIRECTOR OF ELEMENTARY EDUCATION

ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE DISTRICT SCRUTINY COMMITTEE FOR ELEMENTARY
EDUCATION

REPRESENTED BY ITS CHAIRMAN CUM DEPUTY COMMISSIONER
OF KAMRUP(M) DISTRICT
ASSAM
PIN- 781031.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER

KAMRUP
DIST.- KAMRUP(M)
ASSAM
                                                Page No.# 4/12

PIN- 781031
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
CHHAYGAON
DISTRICT KAMRUP
ASSAM
PIN- 781031
7:THE HEADMASTER CUM SECRETARY OF SADAGAR MOLLAH
M.E MADRASSA

VILLAGE MANJURI BILL
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
8:THE SADAGAR MOLLAH M.E MADRASSA

REPRESENTED BY THE PRESIDENT
SCHOOL MANAGING COMMITTEE (SMC) OF SADAGAR MOLLAH
M.E MADRASSA
MANJURIBIL
P.O. TUKRAPARA
DISTRICT KAMRUP
ASSAM.
9:SAMSUL ALOM

TUTOR OF 2 NO. TUKURAPARA L.P. SCHOOL
C/O- HEAD MASTER OF 2 NO. TUKURAPARA L.P. SCHOOL
VILL AND P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137.
10:ZAFAR SHWARIF

SON OF ABDUL HAKIM
VILLAGE KANHARA
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
11:MOBARAK HUSSAIN

S/O- LT. NABAB ALI
RESIDENT OF VILL.- GHORAMARA
P.O.- BAURIBHITA
P.S.- CHHAYGAON
                                                     Page No.# 5/12

 DIST.- KAMRUP
ASSAM
 PIN- 781137.
 ------------
Advocate for : MR. K N CHOUDHURY
Advocate for : MR. M U MAHMUD appearing for THE STATE OF ASSAM
10 ORS



Linked Case : WP(C)/1671/2021

ZAFAR SHWARIF
S/O- ABDUL HAKIM
VILL- KANHARA
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137


VERSUS

THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (ELEMENTARY) DEPTT.
DISPUR
GHY-6

2:THE STATE LEVEL SCRUTINY COMMITTEE
REP. BY THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM KAHILIPARA
 GHY-19
 3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM KAHILIPARA
 GHY-19
 4:THE DISTRICT SCRUTINY COMMITTEE FOR ELEMENTARY
EDUCATION
REP. BY ITS CHAIRMAN CUM DY. COMMISSIONER OF KAMRUP
DISTRICT
ASSAM
 PIN- 781031
 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
KAMRUP
 DIST.- KAMRUP
ASSAM
 PIN- 781031
                                           Page No.# 6/12

6:THE BLOCK ELEMENTARY EDUCATION OFFICER
CHHYGAON
DIST.- KAMRUP
ASSAM
PIN- 781031
7:THE HEADMASTER CUM SECY. OF SADAGAR MOLLAH M.E
MADRASSA
VILL- MANJURI BIL
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
8:THE SADAGAR MOLLAH M.E MADRASSA
REP. BY THE PRESIDENT
SCHOOL MANAGING COMMITTEE (SMC) OF SADAGAR MOLLAH
M.E MADRASSA
MANJURI BIL
P.O. TUKRAPARA
DIST.- KAMRUP
ASSAM
9:SAMSUL ALOM
TUTOR OF 2 NO. TUKURAPARA L.P.SCHOOL
C/O- HEAD MASTER OF 2 NO. TUKURAPARA L.P.SCHOOL
VILL AND P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
10:HATEM ALI AHMED
S/O- ABDUL HALIM
VILL.- MANJURI BIL
P.O.- TUKRAPARA
P.S.- CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137.
11:MOBARAK HUSSAIN
S/O- LT. NABAB ALI
VILL.- GHORAMARA
P.O.- BAURIBHITA
P.S.- CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137.
------------
Advocate for : MR. M U MAHMUD
Advocate for : SC
                                                   Page No.# 7/12

ELEM. EDU appearing for THE STATE OF ASSAM AND 8 ORS



Linked Case : I.A.(Civil)/1835/2022

MOBARAK HUSSAIN
S/O- LT. NABAB ALI
RESIDENT OF VILL.- GHORAMARA
P.O.- BAURIBHITA
P.S.- CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137.


VERSUS

THE STATE OF ASSAM AND 10 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
GUWAHATI-781006.

2:THE STATE LEVEL SCRUTINY COMMITTEE

REPRESENTED BY THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE DIRECTOR OF ELEMENTARY EDUCATION

ASSAM
KAHILIPARA
GUWAHATI-781019.
4:THE DISTRICT SCRUTINY COMMITTEE FOR ELEMENTARY
EDUCATION

REPRESENTED BY ITS CHAIRMAN CUM DEPUTY COMMISSIONER
OF KAMRUP(M) DISTRICT
ASSAM
PIN- 781031.
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER

KAMRUP
DIST.- KAMRUP(M)
ASSAM
                                                Page No.# 8/12

PIN- 781031
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
CHHAYGAON
DISTRICT KAMRUP
ASSAM
PIN- 781031
7:THE HEADMASTER CUM SECRETARY OF SADAGAR MOLLAH
M.E MADRASSA

VILLAGE MANJURI BILL
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
8:THE SADAGAR MOLLAH M.E MADRASSA

REPRESENTED BY THE PRESIDENT
SCHOOL MANAGING COMMITTEE (SMC) OF SADAGAR MOLLAH
M.E MADRASSA
MANJURIBIL
P.O. TUKRAPARA
DISTRICT KAMRUP
ASSAM.
9:SAMSUL ALOM

TUTOR OF 2 NO. TUKURAPARA L.P. SCHOOL
C/O- HEAD MASTER OF 2 NO. TUKURAPARA L.P. SCHOOL
VILL AND P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137.
10:ZAFAR SHWARIF

SON OF ABDUL HAKIM
VILLAGE KANHARA
P.O. TUKRAPARA
P.S. CHHAYGAON
DIST.- KAMRUP
ASSAM
PIN- 781137
11:HATEM ALI AHMED

S/O- ABDUL HALIM
RESIDENT OF VILLAGE- MANJURI BIL
P.O.- TUKRAPARA
P.S.- CHHAYGAON
                                                                     Page No.# 9/12

            DIST.- KAMRUP
            ASSAM
            PIN- 781137.
            ------------
            Advocate for : MR. K N CHOUDHURY
            Advocate for : MR. M U MAHMUD appearing for THE STATE OF ASSAM
            AND 10 ORS



                                   BEFORE


             HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                                      ORDER

30.01.2023

Heard Mr. M.U Mahmud learned counsel for the applicant. Mr. B Talukdar appears for the respondent Nos. 1, 2. 3. 5 & 6. Mr. P Saikia appears for respondent No. 4. Mr. K N Choudhury, learned Senior counsel appears for respondent Nos. 10 & 11.

2. This is an application submitted by the wife of the deceased writ petitioner, to substitute her deceased husband Zafar Shwarif, who had prayed for provincialisation of his service as a Teacher.

3. The subject matter of this writ petition is a challenge to the action of the State respondents in giving the benefit of the provincialisation to the respondent Nos. 9 to 11.

4. The writ petitioner's case is that the petitioner was a Teacher of Social Science in Sadagar Mollah M.E Madrassa. The respondent No. 9 is a Teacher in the subject English as well as Mathematics. The respondent No. 10 is a Teacher in the Assamese subject, which is a language subject and the respondent No. 11 is a Teacher in Arabic, which is also a language subject.

Page No.# 10/12

Thus, the issue in the writ petition is whether the respondent Nos. 9, 10 & 11 could have been provincialized under the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017, hererinafter referred to as the 2017 Act, keeping in view Section 3(1)(xi).

5. During the pendency of the writ petition, the writ petitioner Zafar Shwarif passed away and the wife has filed this application for substituting her husband as the writ petitioner.

6. The counsel for the applicant prays that the application for allowing the wife of the petitioner to substitute her husband Zafar Shwarif should be allowed, as in a similar matter i.e. I.A(C) No. 702/2018, this Court, vide Order dated 23.04.2017, had allowed the brothers of a woman who was praying for provincialization, to substitute the deceased woman writ petitioner. The same was allowed to enable them to receive salary, allowances and other benefits, if the writ petition was allowed.

7. Mr. K N Choudhury learned counsel for the respondent Nos. 10 & 11, on the other hand, submits that the deceased writ petitioner has claimed a personal right and therefore substitution should not be allowed, as the claim of the petitioner had abated with his death. In support of his submission, the learned Senior counsel has relied upon the Judgments of the Apex Court in the case of Puran Singh & Ors vs. State of Punjab & Ors, reported in (1996) 2 SCC 205 and also Girijanandini Devi & Ors vs. Bijendra Narain Choudhury, reported in AIR 1967 SC 1124. He also submits that the writ petition is not maintainable, inasmuch as, the deceased writ petitioner should have approached the Educational Tribunal with his grievance regarding provincialisation of his service, in terms of Section 19(2) of the 2017 Act.

8. He submits that in the present case, even if relief were to be granted, Page No.# 11/12

the wife could not step into the shoes of her deceased husband and as such, no relief could be granted to the wife. He further submits that no right to sue survives with the applicant.

9. I have heard the learned counsels for the parties.

10. In the case of Puran Singh & Ors (supra) and in the case of Girijanandini Devi & Ors. (supra) and Puran Singh & Ors. (supra), the Apex Court has held that a personal action dies with the death of a person in a limited class of actions ex delicto, such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party, the granting of the relief granted would be nugatory.

11. The deceased writ petitioner, who was a Teacher in the Sadagar Mollah M.E Madrassa, has challenged the provincialization of the services of the respondent Nos. 9, 10 & 11. However, he has expired during the proceedings of this case. Even if the wife of the petitioner is allowed to substitute the petitioner, in the view of the Court, the granting of any relief would be nugatory, as the wife cannot step into the shoes of her deceased husband.

12. In any event, the issue whether the relief prayed for in the writ petition would be allowed is speculative in nature as on date and as such, it is the view of this Court that as the applicant cannot step into the shoes of her husband, the right to sue would not survive in a case wherein, the deceased petitioner was praying that his service should be considered for provincialization. In any event, the writ petition is not maintainable, inasmuch as, Section 19(2) of the 2017 Act provides that the claim for provincialization, in respect of Teaching staff of Venture Educational Institutions, should be before an Educational Tribunal. Further, the Educational Tribunals have been established in terms of Page No.# 12/12

the 2017 Act and as such, the appropriate petition had to be filed before the Educational Tribunal.

13. This Court is not following the Order dated 23.04.2018 passed by a Co- Ordinate Bench in I.A (Civil) No. 702/2018, in view of the Judgments of the Apex Court in Puran Singh & Ors vs. State of Punjab & Ors , and Girijanandini Devi & Ors vs. Bijendra Narain Choudhury , besides the writ petition not being maintainable.

14. In that view of the matter, this Court is not inclined to allow the application for substituting the deceased writ petitioner by his wife, the applicant.

Accordingly, in view of the reasons stated above, the application is dismissed.

JUDGE

Comparing Assistant