The State Of Assam vs Dr Nirabkumar Sarmah
2023 Latest Caselaw 4267 Gua

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GAHC010167682023




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

                            Case No. : WA/336/2023

         1.THE STATE OF ASSAM,
         REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVT.
         OF ASSAM, EDUCATION DEPARTMENT,DISPUR GUWAHATI 781006.
         KAMRUP(M) ASSAM.

         2: THE PRINCIPAL SECRETARY,
         TO THE GOVT. OF ASSAM,
          EDUCATION DEPARTMENT,
          DISPUR, GUWAHATI 781006.

         3: THE DIRECTOR OF HIGHER EDUCATION ASSAM,
         KAHILIPARA, GUWAHATI 781019, KAMRUP (M), ASSAM.

         VERSUS

         1.DR NIRABKUMAR SARMAH,
         S/O LATE JYOTISH CHANDRA SARMAH,
         PRINCIPAL RESIDENCE DIPHU GOVERNMENT COLLEGE, DIPHU
         PO DIPHU GOVERNMENT COLLEGE,
         DISTRICT KARBI ANGLONG ASSAM 782462.

         2:THE KARBI ANGLONG AUTONOMOUS COUNCIL,
          PO DIPHU, DIST KARBI ANGLONG, ASSAM, 782460,
         REPRESENTED BY ITS PRINCIPAL SECRETARY.

         3:SRI TULIRAM RONGHANG,
          CHIEF EXECUTIVE MEMBER,
         KARBI ANGLONG AUTONOMOUS COUNCIL,
         LPO DIPHU KARBI ANGLONG, ASSAM, 783460.

         4:MR. ABDUL MOTIN,
         ASSOCIATE PROFESSOR,
          DEPARTMENT OF POLITICAL SCIENCE,
          DIPHU GOVERNMENT COLLEGE, DIPHU,
          PO DIPHU DIST KARBI ANGLONG, ASSAM 78246.
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For the Appellant(s)        : Mr. D. Saikia, Advocate General, Assam assisted by
                              Mr. K. Gogoi, Standing Counsel, Higher Education
                              Department.

For the Respondent(s)      : Mr. A. Kalita, Advocate for respondent No.1.

: Mr. J. Chutia, Standing Counsel, Karbi Anglong Autonomous Council (KAAC) for respondent Nos.2 & 3.

BEFORE HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE KARDAK ETE

12.10.2023

The instant writ appeal preferred by the appellant State of Assam is directed against the judgment and final order dated 28.06.2023, passed by the learned Single Judge accepting the writ petition, being WP(C) No.5400/2021, preferred by the respondent No.1 herein (writ petitioner) and setting aside the Notification dated 24.09.2021 issued by the Principal Secretary to the Government of Assam, Education Department attaching the service of the respondent No.1/writ petitioner as an Officer on Special Duty (OSD) in the Directorate of Higher Education, Assam and allowing one Abdul Motin, Associate Professor, Department of Commerce, Diphu Government College, to hold the charge of the Principal of the said College held by the respondent No.1/writ petitioner.

The main thrust of the reasoning assigned by the learned Single Judge for reversing the Notification was that the post of Principal, Diphu Government College, on which the respondent No.1/writ petitioner was selected pursuant to an advertisement issued by the Assam Public Service Commission (APSC), was a Page No.# 3/5

single cadre post and service of the officer working on such a post was not transferrable. The OSD is an ex-cadre post and no Government servant can be sent to an ex-cadre post without his consent.

Mr. D. Saikia, learned Advocate General, Assam assisted by Mr. K. Gogoi, learned Standing Counsel, Higher Education Department representing the appellants contended that right from the date of appointment of the respondent No.1/writ petitioner as the Principal of the Diphu Government College, there have been serious ramifications, protests etc. so much so that FIRs have been lodged at the instance of the respondent himself and by others against the respondent No.1/writ petitioner in relation to the affairs of the College. Numerous memorandums have been submitted by the College Students' Union demanding removal of the respondent No.1/writ petitioner from the post of the Principal of the said College on account of his behavioural issues. The respondent No.1/writ petitioner was placed under suspension pursuant to initiation of departmental proceedings on more than one occasion. The College is suffering because of the cantankerous behaviour of the respondent No.1/writ petitioner so much so that it has not been able to achieve the NAAC (National Assessment and Accreditation Council) accreditation till date.

Mr. Saikia drew the Court's attention to the interim order dated 08.10.2021 passed by the learned Single Judge in WP(C) No.5400/2021, whereby the respondent No.1 was given 14(fourteen) days' time to join on the post of Officer on Special Duty in the Directorate of Higher Education, Assam. However, as per Mr. Saikia, the respondent No.1 did not comply with the said direction and remained absent from duty for a period of one and half years till the date of decision of the writ petition.

It was vehemently contended by Mr. Saikia that continued presence of Page No.# 4/5

the respondent No.1 in the College is not at all favourable for the academic health of the College and is the students are suffering as a result.

Mr. A. Kalita, learned counsel, representing the respondent No.1 has vehemently and fervently opposed the submissions advanced by Mr. Saikia. He urged that all the instances, which have been cited attributing behavioral issues to the respondent No.1, are of before of the year 2015. He urged that the respondent No.1 rejoined duty after acceptance of his writ petition and thereafter, there is no report of any untoward incident and thus, there is no reason to interfere in the impugned judgment.

Having considered the submissions advanced by learned counsel representing the parties and after going through the impugned judgment and the material placed on record, we are of the opinion that the appeal merits consideration. Hence, the same is admitted.

Admit.

Issue notice.

The respondent Nos.1, 2 and 3 are duly represented. Thus, process need not be issued to them. However, copy of the memo of appeal be provided to learned counsel representing such respondents.

Steps for service of notice upon respondent No.4 be taken within 7(seven) days whereafter process be issued.

Heard on the prayer for interim relief.

Having regard to the facts and circumstances noted above, we hereby direct that the effect and operation of the impugned judgment and final order, dated 28.06.2023 passed by the learned Single Judge in WP(C) No.5400/2021, Page No.# 5/5

is stayed till disposal of the writ appeal.

As a consequence, the Notification dated 24.09.2021, whereby services of the respondent No.1/writ petitioner were attached from the post of Principal, Diphu Government College to OSD in the Directorate of Higher Education, Assam shall stand revived.

List for hearing in due course.

                         JUDGE                              CHIEF JUSTICE




Comparing Assistant