Gauhati High Court
Bodoland Territorial Council vs The State Of Assam & Ors on 11 September, 2012
Author: Amitava Roy
Bench: Amitava Roy
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA:
MIZORAM AND ARUNACHAL PRADESH)
Review Petition No. 125 OF 2010
BODOLAND TERRITORIAL COUNCIL,
REPRESENTED BY THE SECRETARY,
EDUCATION DEPARTMENT, BTC, KOKRAJHAR,
DIST - KOKRAJHAR, B.T.A.D, ASSAM.
............ Petitioner
-Versus-
1. THE STATE OF ASSAM,
THROUGH THE COMMISSIONER & SECRETARY TO THE GOVERNMENT
OF ASSAM, EDUCATION DEPARTMENT, DISPUR, GUWAHATI - 6, ASSAM.
2. THE DIRECTOR OF ELEMENTARY EDUCATION,
ASSAM, KAHILIPARA, GUWAHATI - 19.
3. THE DEPUTY INSPECTOR OF SCHOOLS,
GOSSAIGAON, ASSAM.
4. MD. REZAUL HAQUE CHOUDHURY,
S/O. LT. MOINUL HAQUE CHOUDHURY,
RESIDENT OF VILLAGE AND P.O. KARTIMARI IN THE DISTRICT
OF KOKRAJHAR, ASSAM.
.......... Respondents
BEFORE THE HON'BLE MR. JUSTICE AMITAVA ROY For the Petitioner : Mr. D. Das, Senior Advocate.
Mr. S. Khound, Advocate.
Ms. R Singha, Advocate.
For the Respondents : Mr. A Deka, SC Education Department.
Mr. KP Sarma, Senior Advocate.
Date of Hearing : 11.09.2012.
Date of Judgment : 11.09.2012.
Judgment & Order
The Bodoland Territorial Council (for short hereafter referred to as the Council) by the instant application seeks a review of the order dated 20.09.2002, passed by this Court in WP(C) No. 2721/2001, directing the competent authority to appoint the opposite party/respondent No. 4 and/or pass necessary orders for the regularization of his services in the light of the order dated 07.12.1999 (Annexure B to the writ petition).
02. I have heard Mr. D Das, learned Standing Counsel, Bodoland Territorial Council and Mr. A Deka, learned Standing Counsel, Education Department for opposite party No. 1, 2 & 3. Also heard Mr. KP Sarma, Senior Advocate for the opposite party No. 4/writ petitioner.
03. The factual backdrop in short would be necessary. The opposite party No. 4 was appointed as honorary teacher in Asari Kandi Kartimari LP School (for short hereafter referred to as the School) by the Managing Committee thereof in the year 1988. He being aggrieved by the inaction on the part of the authorities concerned in the matter of regularization of his services approached this Court with CR No.2898/1998, which was disposed of on 26.04.1998 with a direction to the Joint Secretary, Government of Assam, Education Department to consider his case and pass appropriate order(s). The Joint Secretary, Government of Assam, Education Department-cum-Chairman, Teacher Grievance Cell thereafter passed an order dated 07.12.1999 (referred to in the order dated 20.09.2002 said to be reviewed), directing the Director of Elementary Education, Assam to take steps for regularization of the services of the opposite party No. 4 in any vacant post. As inspite thereof no appointment or order of regularization was passed, the opposite party No. 4 approached this Court with WP(C) No. 2721/2001, Review Pet. No. 125/2010 Page 2 of 2 which was disposed of on 20.09.2002 with the direction as above. A time frame of two (2) months was accorded to complete the process as ordered.
04. According to the review petitioner, in none of the aforementioned proceedings either the Bodoland Autonomous District Council or the Bodoland Territorial Council which succeeded it (Bodoland Autonomous District Council) was impleaded as a party respondent and, thus the authorities thereof were completely unaware of these developments and the orders passed therein. It is only on 23.02.2006 that the Director of Education, Bodoland Territorial Council, Kokrajhar issued a letter of the even date to the Deputy Inspector of Schools, Gossaigaon to submit a detailed report along with the vacancy position of the LP Schools located within the territorial limits of the latter's Sub-division. This letter clearly mentioned about the earlier writ proceedings, viz, CR. No. 2898/1998 and WP(C) No.2721/2001 instituted by the opposite party No. 4.
Thereafter, the Under secretary to the Government of Assam, Education (E) Department by his letter dated 24.03.2006 forwarded copies of the orders passed by this Court in the above writ proceedings with a request to the Director of Education, BTAD, Kokrajhar to furnish the proposal as per the Finance (SIU) Department's Format indicating the vacancy position along with a detailed report. Subsequent thereto, the Joint Secretry, Bodoland Territorial Council, Kokrajhar by his letter dated 15.07.20a06 (Annexure VI to the review petition) required the Director of Education, Bodoland Review Pet. No. 125/2010 Page 3 of 3 Territorial Council, Kokrajhar to move the Government of Assam for approval of SIU against the existing vacancy in the post of Assistant Teacher of LP School for appointment of the opposite party No. 4 in compliance of the orders rendered in CR No.2898/1998 and WP(C) No.2721/2001. A detailed report, as sought for, as above, with regard to the vacancy position with reference to the orders passed in the aforementioned writ proceedings was submitted by the Deputy Inspector of Schools, Gossaigaon to the Director of Education, Bodoland Territorial Council, Kokrajhar by the former's letter dated 26.07.2006 (Annexure VIII to the review petition). It was, thereafter, that the Director of Education, Bodoland Territorial Council, Kokrajhar by his letter dated 04.08.2007 (Annexure IX to the review petition) submitted the proposal with the Commissioner & Secretary, Government of Assam, WPT & BC Department, Dispur for according financial concurrence for regularization of the services of the opposite party No. 4. The approval of the Finance (SIU) Department is discernible from the note dated 13.05.2010 of the Joint Secretary, Finance (SIU) Department qua the regularization of the services of the opposite party No. 4 at Annexure X to the review petition. The approval of the Governor of the State for filling up one sanctioned vacant post of Assistant Teacher of LP School under District Elementary Education Officer, Kokrajhar with the concurrence of Finance (SIU) Department as adverted to hereinabove is available from the letter No. AEE.377/2009/74, dated 16.06.2010 of the Under Secretary to the Government of Assam, Education (E) Department.
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05. In the above factual conspectus, the review petitioner apart from contending that the order sought to be reviewed is non est for the omission on the part of the opposite party No. 4 in impleading either the Bodoland Autonomous Council or its successor in office the Bodoland Territorial Council, has insisted as well that the direction of this Court for regularization of the services of the opposite party No. 4, whose initial appointment had been on honorary basis by the Managing Committee of the School concerned is palpably erroneous.
06. While Mr. Das has emphatically pleaded as above, the learned counsel for the opposite party No. 4 has urged that in view of the undue and unexplained delay of 9 years and the intervening developments demonstrating the uninhibited association of the authorities of the Bodoland Territorial Council therewith to facilitate the implementation of the orders of this Court, the review petition ought to be dismissed in limine.
07. On an analytical consideration of the pleaded facts and the documents on record, more particularly, those referred to hereinabove indicating the involvement of the authorities of the Bodoland Territorial Council in the process stemming from the orders passed by this Court, amongst others in WP(C) No. 2721/2001, I am constrained to sustain the plea of delay urged on behalf the opposite party No. 4. The order sought to be reviewed has been passed on 20.09.2002 and the instant application has been filed on 24.11.2010 i.e. after 8 years. Though, a desperate attempt has been made by Mr. Das to save the situation by Review Pet. No. 125/2010 Page 5 of 5 contending that the authorities of the Bodoland Territorial Council have come to know of this order for the first time in the year 2010, the documents on record as annexed to the review petition attest to the contrary. The plea of non-impleadment of the Bodoland Autonomous District Council and the Bodoland Territorial Council in the above referred writ petitions in the face of these documents does not commend for acceptance. The materials on record unambiguously demonstrate that steps had been taken by the concerned authorities of the Bodoland Territorial Council towards implementation, amongst others of the order dated 20.09.2002 of this Court passed in WP(C) No.2721/2001. In that view of the matter, the plea of impermissibility in law of the regularization of the services of the opposite party No. 4 is untenable at this stage.
08. Mr. Das, in support of his contentions relied on the decisions of the Hon'ble Apex Court in Shivdeo Singh Vs. State of Punjab, AIR 1963 SC 1909, National Housing Coop. Society Ltd. Vs. State of Rajasthan & Ors., (2005) 12 SCC 149, State of Assam Vs. Union of India & Ors., (2010) 10 SCC 408. Reliance was also placed on the decision of this Court in Abdul Bari (MD) Vs. State of Assam & Ors., 1999 (3) GLT 31.
09. Whereas, the decisions of the Hon'ble Apex Court deal, inter alia, with the consequences of an order passed without impleadment of a necessary party and the inherent power of the High Court as every other Court of law to review its decisions to prevent miscarriage of justice, in the singular facts and circumstances of the case, none of Review Pet. No. 125/2010 Page 6 of 6 these authorities yield any ground for review to advance the cause of the review petitioner. The decision of the Division Bench of this Court in Abdul Bari (MD) (Supra), in the face of the order dated 07.12.1999 of the Joint Secretary, Government of Assam-cum-Chairman Teacher Grievance Cell on a thorough consideration of all relevant facts is also of no avail as on date as a ground for review. The review petition, in the above premise, lacks in merit and is dismissed. No costs.
JUDGE beep/-
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