Gauhati High Court
Shofiqul Islam Anchary vs The State Of Assam And 3 Ors on 20 August, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
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GAHC010046762019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1509/2019
SHOFIQUL ISLAM ANCHARY
S/O. LT. LAL MAHMUD, VILL. ALITANGONI, P.O. ALITANGONI, P.S. JURIA,
DIST. NAGAON, ASSAM-782124.
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, ELEMENTARY
EDUCATION DEPTT., DISPUR, GUWAHATI-781006.
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DIST. ELEMENTARY EDUCATION OFFICER
MORIGAON
P.O. AND P.S. MORIGAON
DIST. MORIGAON
ASSAM-782105.
4:PABITRA TAMULI
SUB-INSPECTOR OF SCHOOLS
LAHORIGHAT UNDER DY. INSPECTOR OF SCHOOLS
MORIGAON
R/O. MORIGAON TOWN
WARD NO. P.O. AND P.S. MORIGAON
DIST. MORIGAON
ASSAM-782105
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Advocate for the Petitioner : MR. M A SHEIKH
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
20.08.2021 Heard Ms. Ashmina Begum, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned Standing Counsel, Elementary Education Department for the respondent Nos. 1 to 3 and Mr. D. A. Kaiyum, learned counsel for the respondent No. 4.
2. Petitioner is serving as Sub-Inspector of Schools of Mayong Education Block of Morigaon district under the Deputy Inspector of Schools, District -Morigaon. The Block Elementary Education Officer (BEEO, in short) in-charge of Mayong Education Block of Morigaon district, Ashok Kr. Nath expired on 28.11.2018. The State Government in the Elementary Education Department by its Notification No. AEE.67/2013/176 dated 26.12.2018 (Annexure-9 to the writ petition), allowed the petitioner to hold the current charge of BEEO, Mayong on in-charge basis and as per Finance (Esstt-A) Department's OM No. FEG/18/90/46 dated 10.04.2000, the State Government in the Elementary Education Department by the said Notification dated 26.12.2018 also entrusted him with the financial power under F.R. 49(c) without statutory power w.e.f. the date of taking over the charge until further order or till regular incumbent is posted, whichever is earlier, in addition to petitioner's own duties. Pursuant to the same, the petitioner on 26.12.2018 afternoon itself took over the charge of BEEO, Mayong and served as in-charge BEEO of Mayong Education Block.
3. The State Government in the Elementary Education Department by a subsequent Notification under No. AEE.67/2013/198 dated 26.02.2019 (Annexure-10 to the writ petition), cancelled its earlier notification dated 26.12.2018 (Annexure-9 to the writ petition) and allowed the respondent No. 4, Sub Inspector (S.I., in short) of Schools, Morigaon serving under Deputy Inspector of Schools (D.I., in short) of Morigaon District to hold the current charge of in-charge-
Page No.# 3/6 BEEO, Mayong Education Block, along with the financial power under FR 49(c).
4. The State Government in the Elementary Education Department by the said Notification under No.AEE.67/2013/198-a dated 26.02.2019 (Annexure-10 to the writ petition), relieved the petitioner from his additional duties of BEEO in-charge of Mayong Education Block w.e.f. the date of handing over the charge.
5. Being aggrieved with the said Notification No.AEE.67/2013/198-a dated 26.02.2019 (Annexure-10 to the writ petition), reliving the petitioner from his additional duties of BEEO in- charge of Mayong Education Block and allowing the respondent No. 4 to be the BEEO in-charge of Mayong Education Block, the petitioner on 01.03.2019 has filed the present writ petition WP(C) No. 1509/2019, praying amongst others for setting aside both the orders issued by the State Government in the Elementary Education Department under (i) No.AEE.67/2013/198 and (ii) No.AEE.67/2013/198-a both dated 26.02.2019 (Annexure-10 to the writ petition).
6. Petitioner submitted that both he as well as the respondent No. 4 are S.I. of Schools under the D.I. of Schools, Morigaon District and both of them are from the same cadre of S.I. of Schools, where petitioner is senior to the respondent No. 4. In the present writ petition the Court on 06.03.2019 issued notice to the respondents and in the interim, with regard to holding of the current charge of BEEO in-charge of Mayong Education Block, the Court by the said order dated 06.03.2019 directed the parties to the proceeding to maintain status-quo as on said date, i.e., 06.03.2019, and further to list the matter on 03.05.2019.
7. Against the said order dated 06.03.2019, the respondent No. 4 on 11.03.2019 filed the connected Interlocutory Application I.A.(Civil) No. 941/2019, under Article 226 (3) of the Constitution of India praying for vacation and/or modification and/or alteration of said ex-parte interim order dated 06.03.2019, passed in WP(C) 1509/2019, serving a copy of the same on the counsel for the petitioner on 11.03.2019 itself.
8. Said I.A. No.(Civil) 941/2019 was taken up for consideration by the Court on 25.03.2019 and on the said date, the Court directed the respondents in the Elementary Education Department to place instructions as to whether vacancies will have to be filled up block-wise from the cadre of S.Is already working in the said block or whether other S.I. working in some other block can also hold the charge of BEEO, fixing the matter on 03.04.2019, observing that the said interim order dated 06.03.2019, passed in WP(C) 1509/2019, shall continue till date fixed.
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9. On 03.04.2019, the Court directed the respondents in the Elementary Education Department to produce the relevant file in original, wherein the Notification dated 26.12.2018 was passed, allowing the writ petitioner to act as BEEO in-charge of Mayong Education Block and fixed the matter on 09.04.2019. Pursuant to the same, the respondents in the Elementary Education Department produced the original records bearing No. AEE.67/2013/176.
10. From the records, it is seen that after the death of erstwhile BEEO in-charge of Mayong on 28.11.2018, the writ petitioner on the very next day, i.e., on 29.11.2018, submitted an application before the District Elementary Education Officer (DEEO, in short), Morigaon with a prayer to give him the charge of BEEO in-charge of Mayong Education Block. It is also seen from the said record that prior to the expiry of the erstwhile BEEO in-charge of Mayong on 28.11.2018, when he was physically unwell and was not in good health, the writ petitioner approached the authorities in the Elementary Education Department of the State to allow him to hold the charge of BEEO in-charge of Mayong Education Block.
11. The DEEO, Morigaon, on 23.05.2018, forwarded the name of the writ petitioner, S.I. of Schools, Mayong Education Block to the Director of Elementary Education, Assam (DEE, in short) for the post of BEEO in-charge of said Mayong Education Block, in place of said Ashok Kr. Nath. The DEE, Assam subsequently forwarded the said letter of the DEEO, Morigaon dated 23.05.2018 to the State Government in the Elementary Education Department. The State Government, on verification of the records, found that the then BEEO in-charge of Mayong, Ashok Kr. Nath, much senior to the writ petitioner, the S.I. of Schools of Mayong, whose name was proposed by the DEEO, Morigaon on 23.05.2018. Accordingly, the Elementary Education Department observed that if the charge of BEEO, Mayong is handed over to the writ petitioner, who is much junior to then BEEO in-charge of Mayong, the same will amount in allowing a senior officer to work under a junior officer and therefore, the Government did not consider such prayer of the petitioner to be the BEEO in-charge of Mayong during the life time of said Ashok Kr. Nath. Later, the petitioner, through the Minister of the State of Assam in the Urban Development Department and Health & Family Welfare Department, approached the State respondent in the Elementary Education Department for his posting as BEEO in-charge of Mayong and the said Minister wrote to DEEO, Morigaon for such in-chargeship of the writ petitioner. The DEEO, Morigaon submitted a list of block-wise S.Is. of Morigaon district, namely, Laharighat, Mayong and Bhurbandha Education Blocks, wherein the BEEO in-charge of Laharighat Education Block was shown to the senior most Page No.# 5/6 S.I. of Morigaon district, followed by the writ petitioner, from Mayong Education Block and two others from Bhurbandha Education Block. From the said list of S.Is. of Schools serving in Morigaon district, prepared by the DEEO, Morigaon, it is seen that the BEEO in-charge of Bhurbandha Education Block is the senior most S.I. of Schools of Morigaon district, BEEO in-
charge of Laharighat Education Block is the 2 nd senior most S.I. of Schools of Morigaon district and that the 3rd and 4th senior most senior S.Is. of Schools of Morigaon district are without in-
chargeship of BEEO and that the 5 th senior most S.I. of Schools of Morigaon district is the writ petitioner. It is seen that the respondent No. 4 is the 4 th senior most S.I. of Schools of Morigaon district. There is another officer, namely, Honey Chamuah Nath, who joined as S.I. of Schools prior to the petitioner.
12. It is seen that petitioner is serving as the Sub-Inspector of Schools of Mayong Education Block and he approached the Minister of State, Urban Development Department and Health & Family Welfare Department to make him the BEEO in-charge of Mayong Education Block. On his such approach, the Minister of State, Urban Development Department and Health & Family Welfare Department recommended the name of the petitioner to the respondent in the Elementary Education Department for his said in-chargeship. On such request of the Minister of State, Urban Development Department and Health & Family Welfare Department, the Elementary Education Department acted upon it and issued the Notification No. AEE.67/2013/176 dated 26.12.2018 (Annexure-9 to the writ petition) allowing the petitioner to hold the current charge of BEEO, Mayong on in-charge basis. However, on finding that the respondent No. 4 senior to the petitioner, the respondent Elementary Education Department by the impugned order under No. AEE.67/2013/198 dated 26.02.2019 allowed the respondent No. 4 to act as BEEO in-charge of Mayong Education Block and by the other impugned Order No.AEE.67/2013/198-a also dated 26.02.2019 (both Annexure-10 to the writ petition) relieved the petitioner from BEEO in-charge of said Mayong Education Block.
13. Apparently, the respondent Elementary Education Department while issuing the Notification dated 26.12.2018 allowing the petitioner to hold the current charge of BEEO, Mayong did not consider the seniority of other S.Is. of Schools serving in Morigaon district and issued the said Notification dated 26.12.2018 disregarding the seniority of other S.Is of Schools of Morigaon district, including the respondent No. 4 Page No.# 6/6
14. While holding a post on in-charge basis in addition to the incumbent's normal duties and under FR 49(C) no lien is created to the said post. In the present case by the Notification dated 26.12.2018 the respondent Elementary Education Department temporarily allowed the petitioner, S.I. of Schools of Mayong to hold the current charge as in-charge BEEO, Mayong along with financial power under FR 49(C) without Statutory power w.e.f. the date of joining over charge until further order or till regular incumbent is appointed, whichever is earlier, in addition to his own duties. The petitioner accepted the same and took over the charge of in-charge BEEO, Mayong on 26.12.2018 itself. Moreover, the respondent Elementary Education Department issued the said Notification dated 26.12.2018 solely on the basis of recommendation of the Minister of State, Urban Development Department and Health & Family Welfare Department, who is not even the concerned departmental Minister, that too on personal approach of the petitioner.
15. The initial Notification dated 26.12.2018 issued by the respondent Elementary Education Department allowing the petitioner to act BEEO in-charge of Mayong Education Block of Morigaon district was purely on extraneous consideration. But finding that the respondent No. 4 is senior to the petitioner as S.I. of School the impugned Notifications dated 26.02.2019 were issued.
16. Considering the entire aspect of the matter and since the respondent Elementary Education Department issued the aforesaid Notification dated 26.12.2018 on extraneous consideration and finding respondent No. 4 senior to the petitioner, the respondent Elementary Education Department subsequently issued the impugned Notifications dated 26.02.2019 rectifying its mistake; the Court is of the view that no such illegality or any irregularity has been committed by the said respondent Elementary Education Department in issuing the impugned Notifications No. AEE.67/2013/198 and No.AEE.67/ 2013/198-a, both dated 26.02.2019 (Annexure-10 to the writ petition)
17. Accordingly, this writ petition being devoid of any merit stands dismissed. Interim order passed earlier in this proceeding on 06.03.2019 stands vacated.
JUDGE Comparing Assistant