Smti Pratima Chetia vs The State Of Assam And 9 Ors
2025 Latest Caselaw 54 Gua

Gauhati High Court

Smti Pratima Chetia vs The State Of Assam And 9 Ors on 1 May, 2025

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GAHC010044122025




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

                          Case No. : WP(C)/1200/2025

         SMTI PRATIMA CHETIA
         D/O PHANI CHETIA, A R/O CHETIA GAON, HARHI SAPATIA, DIST-
         LAKHIMPUR, ASSAM-787058, INDIA

         VERSUS

         THE STATE OF ASSAM AND 9 ORS.
         TO BE REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY AND
         COMMISSIONER, EDUCATION (HIGHER) DEPARTMENT, DISPUR,
         GUWAHATI-06, ASSAM, INDIA

         2:THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM
          EDUCATION (HIGHER) DEPARTMENT
          DISPUR
          GUWAHATI-06
         ASSAM
          INDIA

         3:THE COMMISSSIONER AND SECRETARY TO THE GOVTY. OF ASSAM
          EDUCATION (HIGHER) DEPARTMENT
          DISPUR
          GUWAHATI-06
         ASSAM
          INDIA

         4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GUWAHATI-06
         ASSAM
          INDIA

         5:THE DIRECTOR OF THE HIGHER EDUCATION CUM HEAD OF THE
         ENQUIRY COMMITTEE
                                                                           Page No.# 2/9

             KAHILIPARA
             GUWAHATI-19
             ASSAM
             INDIA

            6:THE JOINT DIRECTOR OF HIGHER EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI-19

            7:THE HARHI COLLEGE
             REPRESENTED BY ITS PRINCIPAL
             GOBINDAPUR
             DHAKUAKHANA
             LAKHIMPUR
            ASSAM

            8:THE GOVERNING BODY
             REPRESENTED BY ITS PRESIDENT AND SECRETARY
             GOBINDAPUR
             DHAKUAKHANA
             LAKHIMPUR
            ASSAM

            9:SMT. PARINITA BORA
            ASST. PROFESSOR (NON PROVINCILIZATION)
             DEPARTMENT OF ASSAMESE
             HARHI COLLEGE
             GOBINDAPUR
             DHAKUAKHANA
             LAKHIMPUR
            ASSAM

            10:SMTI. KARABI GOGOI
            ASST. PROFESSOR
             DEPARTMENT OF ASSAMESE
             HARHI COLLEGE
             GOBINDAPUR
             DHAKUAKHANA
             LAKHIMPUR
            ASSA

Advocate for the Petitioner   : MR. J I BORBHUIYA, MR G G GOGOI,MR. S J SARMAH

Advocate for the Respondent : SC, HIGHER EDU, MR. S K DAS(R-10),MR R KARIM (R-10),MS.
N DEY(R-9),MRS. R BORBORA(R-9),MR A C BORBORA (R-9),SC, FINANCE
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                              BEFORE
                 HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                   ORDER

01.05.2025

Heard Mr. J. I. Borbhuiya, learned counsel for the petitioner. Also heard Mr. A.R Tahbildar, learned standing counsel for the respondent Nos. 1, 2, 3, 5 and 6; Mr. A.C. Borbora, learned Senior Counsel, assisted by Ms. N. Dey, learned counsel for the respondent No. 9 and Mr. S.K. Das, learned counsel for the respondent No. 10.

2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Smti. Pratima Chetia, has challenged the speaking order, dated 20.02.2025, issued under Memo No. PC/HE/CC/26/2021/159- A, by which provincialisation of service of the petitioner had been withdrawn by the respondent authorities.

3. During the course of hearing, on 07.04.2025, Mr. Borbora, learned Senior Counsel for the respondent No. 9, raised a question about maintainability of this petition, as the impugned order was passed by the respondents in the Higher Education Department, pursuant to an order passed by a Coordinate Bench of this Court, dated 10.09.2021, in WP(C) No. 4041/2019, and also in view of the order passed by another Coordinate Bench of this Court, dated 12.06.2024, in Cont. Case (C) No. 57/2022. Mr. Borbora further submits that the impugned speaking order being passed pursuant to order of a Coordinate Bench of this Court, this Court sitting singly, in the present form, cannot alter or modify the order of a Coordinate Bench of this Court, dated 10.09.2021, in WP(C) No. Page No.# 4/9

4041/2019.

4. Under such circumstances, before a discussion is directed into the merit of the petition, this Court deems it appropriate to first address the issue of maintainability of the petition in present form. Accordingly, both the parties have been heard at length.

5. Mr. Borbhuiya, learned counsel for the petitioner vehemently submits that in WP(C) No. 4041/2019, the present petitioner was not a party and no direction was issued by this Court to the State respondents in the order dated 10.09.2021, in the said petition, to withdraw the provincialisation of service of the present petitioner, whose service was provincialised by the respondent authorities long back on 20.06.2015 as Lecturer in the Department of Assamese of Harhi College, Gobindapur. Mr. Borbhuiya further submits that the direction of the Court was otherwise and under misconception, and also misinterpreting of the direction of this Court, dated 10.09.2021, in WP(C) No. 4041/2019, the respondent authorities had passed the impugned speaking order dated 20.02.2025, withdrawing the provincialisation of service of the petitioner, which affects the fundamental right of the petitioner. Mr. Borbhuiya further submits that the respondent No.9 in her petition WP(C) No. 4041/2019, and also in her additional affidavit stake her claim for provincialisation in Assamese (Elective) Department and the same is reflected in the order dated 10.09.2021, and the respondent authority had misinterpreted the same and under misconception, withdrawn the provincialisation of service of the petitioner. It is the further submission of Mr. Borbhuiya that the petitioner has challenged the impugned speaking order in the present petition, and that the petition is maintainable and the petitioner has arguable points Page No.# 5/9

which are required to be heard on merit.

6. Per contra, Mr. Tahblidar, learned standing counsel for the respondent Nos. 1, 2, 3, 5 and 6 submits that the impugned speaking order dated 20.02.2025, was passed by the Director of Higher Education, Assam, pursuant to the order of this Court, dated 10.09.2021, in WP(C) No. 4041/2019. Mr. Tahbildar further submits that in the affidavit-in- opposition also the respondent No.5 has taken a categorical stand that the speaking order was passed pursuant to order being passed in said writ petition and also in the order being passed in Cont. Case(C) No. 57/2022.

7. On the other hand, Mr. Borbora, learned Senior Counsel for the respondent No. 9, controverting the submission of Mr. Borbhuiya, learned counsel for the petitioner, submits that the impugned speaking order was passed pursuant to the order of this Court dated 10.09.2021, in WP(C) No. 4041/2019, and Cont.Cas(C) No. 57/2022. Mr. Borbora further submits that vide impugned speaking order the State respondent had withdrawn the provincialisation of service of the present petitioner and thereafter, provincialised the service of the respondent No. 9, who is the third senior most teacher in the Department of Assamese of Harhi College. Further, Mr. Borbora, taking this Court to the WP(C) No. 4041/2019, and the additional affidavit submitted by the petitioner, submits that nowhere in the petition and the affidavit, the petitioner had stake her claim for provincilisation of service in the Assamese (Elective) Department. Mr. Borborah also submits that the options available for the present petitioner is either to file a review petition or to file an appeal against the order of the learned Single Judge of this Court, dated 10.09.2021, in WP(C) No. 4041/2019, and having not done so, now the petitioner cannot seek any relief against the Page No.# 6/9

aforementioned order and this Court cannot touch the order of the learned Single Judge. Under such circumstances, Mr. Borbora submits that this petition is not maintainable.

8. Mr. Das, learned counsel for the respondent No. 10 also submits that the present petition is not maintainable in the present form. Mr. Das also submits that the respondent No. 10 has taken a categorical stand in her affidavit-in-opposition that she was appointed against a post in the Assamese (EL) Department, and as per notification of the Dibrugarh University, Assamese (EL) is a different department from that of Assamese, and that she is not a party in the earlier writ proceeding and as such, it is contended to dismiss this petition.

9. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also perused the impugned speaking order dated 20.02.2025, and the order passed by this Court, dated 10.09.2021, in WP(C) No. 4041/2019, and in Cont. Case (C) No. 57/2022.

10. After careful perusal of the impugned speaking order, dated 20.02.2025, annexed as Annexure-6, page No. 87 to the petition, and also taking note of the categorical stand of the State respondent and also respondent Nos. 9 and 10, this Court is satisfied to hold that the impugned speaking order was passed pursuant to the order of this Court, dated 10.09.2021, in WP(C) No. 4041/2019.

11. It is also to be noted here that in the affidavit-in-opposition filed by the respondent No. 5, a categorical stand has been taken that the impugned speaking order was passed pursuant to the order of a learned Page No.# 7/9

Single Judge of this Court, dated 10.09.2021, in WP(C) No. 4041/2019, and also pursuant to the order passed by a Coordinate Bench of this Court in Cont. Case (C) No. 57/2022. Reference in this context can be made in paragraph Nos. 6, 7 and 8 of the said affidavit-in-opposition.

12. Now, the question is whether this Court in the present petition makes any alteration, vacation, modification of the impugned speaking order dated 20.02.2025, issued under Memo No. PC/HE/CC/26/ 2021/159- A, by the State respondent. Since the said impugned order was passed pursuant to order of a learned Single Judge, in WP(C) No. 4041/2019, and also pursuant to the order passed by a Coordinate Bench of this Court in Cont. Case (C) No. 57/2022, any alteration, modification, variation or setting aside of the impugned speaking order dated 20.02.2025, would amount to touching the order of the learned Single Judge in WP(C) No. 4041/2019, which, to the considered opinion of this Court, is beyond the authority and scope of this Court and on such count, it is impermissible also.

13. In the case of Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs., Transferred Case (Criminal) No. 1 of 2020, delivered on September 3, 2020, Hon'ble Supreme Court has dwelt upon the issue and held as under:-

"Having heard the petitioner who appears in person and Mr. Balaji Srinivasan, learned counsel appearing on behalf of the Legal Representatives of the original respondent, we are of the view that a writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has Page No.# 8/9

been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court."

14. It is also well settled in the case of Sandhya Educational Society v. Union of India, reported in (2014) 7 SCC 701, that judicial decorum and discipline is paramount and, therefore, a Coordinate Bench has to respect the judgments and orders passed by another Coordinate Bench. This proposition is also taken note of by the Constitutional Bench of Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Shethi And Others, reported in (2017) 16 SCC 680, in paragraph No. 22.

15. Thus, drawing premises from the illuminating discourse above, and further taking note of the submissions of learned counsel for both the parties, and further considering the dispute involved and also the relief being claimed in this petition, this Court is of the view that this petition is not maintainable in the present form. As the impugned speaking order, dated 20.02.2025, being passed on the basis of an order of this Court, Page No.# 9/9

dated 10.09.2021, in WP(C) No. 4041/2019, the appropriate course would have been filing of a review petition or to prefer an appeal against the order of the learned Single Judge of this Court.

16. Though, Mr. Borbhuiya, learned counsel for the petitioner submits that the petitioner is not aggrieved by the order passed by the learned Single Judge, dated 10.09.2021, in WP(C) No. 4041/2019, yet in view of the categorical stand taken by the respondent No. 5 and also by the respondent Nos. 9 and 10, this Court is unable to record concurrence to the submission of Mr. Borbhuiya.

17. Under such circumstances, this Court is inclined to hold that this writ petition is not maintainable in the present form.

18. Accordingly, this writ petition stands closed, without going into the merits of the same. However, liberty stands reserved to the petitioner to avail appropriate legal remedy available to her, under the law. Ordered accordingly.

JUDGE

Comparing Assistant