Gauhati High Court
Abul Kashem vs The State Of Assam And 5 Ors on 18 February, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/9
GAHC010036662019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1186/2019
1:ABUL KASHEM
S/O. ARFAN ALI, VILL- BOWALGURI, P.O.- GOROIMARI, DISTRICT-
MORIGAON, ASSAM, PIN- 781124.
VERSUS
1:THE STATE OF ASSAM AND 5 ORS.
TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, SECONDARY EDUCATION, ASSAM, DISPUR, GUWAHATI-6.
2:THE DIRECTOR
SECONDARY EDUCATION ASSAM
KAHILIPARA
GUWAHATI-19.
3:THE DEPUTY COMMISSIONER
MORIGAON DISTRICT
MORIGAON
ASSAM.
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
OFFICE MORIGAON DISTRICT
MORIGAON
ASSAM.
5:THE MANAGING COMMITTEE OF BOWALGURI PRE. SENIOR MADRASSA
TO BE REP. BY ITS PRESIDENT
C/O- OFFICE OF THE HEAD MUDARIS BUWALGURI PRE SENIOR
MADRASSA
VILL. BUWALGURI
P/O- GORAIMARI
Page No.# 2/9
DISTRICT- MORIGAON
ASSAM.
6:MD. WAHIDUR RAHMAN
S/O- LATE ABDUR RASHID
VILL- BOWALGURI
P.O.- GORAIMARI
DIST.- MORIGAON
ASSAM. PIN- 781124
Advocate for the Petitioner : MR A R BHUYAN
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 18-02-2020 Heard Mr. A. R. Bhuyan, learned counsel for the petitioner. Also heard Mr. S.M. T. Chistie, learned Standing Counsel, Education (Secondary) Department for respondent Nos. 1, 2 & 4, Mr. B. Deuri, learned Govt. Advocate, Assam for respondent No. 3 and Mr. A. Deka, learned counsel for respondent No. 6.
2. In this petition, the petitioner has challenged the order dated 12.02.2019 by which the respondent No. 6 (Md. Wahidur Rahman) who was put under suspension and subsequently, was reinstated and posted at Changmazi Pre-Senior Madrassa had been reinstated and posted in his original School, i.e., Bowalguri Pre-Senior Madrassa.
3. The reason for challenging this impugned order is that Md. Wahidur Rahman, respondent No. 6 herein, was earlier found guilty of misconduct by the Disciplinary Authority after holding an enquiry in that regard which relates to serious allegations of misuse of Mid Day Meal (MDM) meant for the School and also misappropriation of Government fund under MDM and SSA Scheme during the period 2014-2015 as evident from the copy of the Enquiry Report dated 06.02.2017, annexed as Annexure 3 to the writ petition.
4. It has been contended that the respondent No.6 was also involved and implicated in a Page No.# 3/9 criminal case under Moirabari Police Station being G.R. Case No. 172/2016 and the criminal trial is still going on and as such, reposting the respondent No. 6 in his original school i.e. Bowalguri Pre-senior Madrassa, where the respondent No. 6 has been already found guilty of misuse of Mid Day Meal and misappropriation of Government fund in a departmental enquiry would be against public interest.
5. It has been submitted that the respondent No. 6 after having been found guilty of the aforesaid allegations of misuse of Mid Day Meal and misappropriation of Government fund was transferred to another School so as to avoid his continuity in service in the said School and accordingly, the impugned order dated 12.02.2019 by which the respondent No. 6 has been brought to the original school is contrary to the earlier order dated 03.12.2018.
6. It has been submitted that based on the findings of the Enquiry Report, the State authorities though reinstated the petitioner in his former post of Head Mudaris, imposed the penalty of stoppage of 2 (two) increments with cumulative effects under Rule 7 (ii) of the Assam services (Discipline and Appeal) Rules, 1964 vide order dated 03.12.2018. However, while reinstating the respondent No. 6 to service, he was posted as the Head Mudaris of Changmazi Pre-Senior Madrass at Nagaon (Hojai) against the vacant post available in the said School.
7. Accordingly, it has been submitted that since the authorities had issued the aforesaid order of penalty vide order dated 03.12.2018 by transferring the respondent No. 6 to another school (Changmazi Pre-Senior Madrassa) in view of the pending criminal case as well as for finding of guilt in the departmental enquiry initiated against him, the repatriation of respondent No. 6 to the same school at Bowalguri Pre-Senior Madrassa where he committed the misconducts would be against the public interest and accordingly, has sought for interfering and setting aside the said order dated 12.02.2019.
8. The said submission made by the learned counsel for the petitioner is strongly resisted by the learned counsel for respondent No. 6 on the ground that the petitioner has no locus standi to file this petition.
9. It has been submitted by learned counsel for respondent No. 6 that the learned counsel for the petitioner has not been able to show any specific averments as to how the right of the petitioner or interest of the petitioner is adversely affected by the aforesaid order dated 12.02.2019.
Page No.# 4/9 On the contrary, it has been alleged that the In-charge Head Mudaris of the said Bowalguri Pre-Senior Madrassa had instigated the present petitioner to file the writ petition so as to enable the said In-charge Head Mudaris to continue in her post.
10. Learned counsel for the respondent No. 6 has also questioned as to how the petitioner has filed this petition in the capacity of Guardian without disclosing the details of the same.
11. Accordingly, it has been submitted that since the petitioner has no locus standi to file this petition, this petition ought to be dismissed.
12 As regards the said submission that the petitioner has no locus standi to file this petition, learned counsel for the respondent No. 6 has relied on the decision of the Hon'ble Supreme Court rendered in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors. (2013) 4 SCC 465.
13. The relevant portion of aforesaid case, Ayaaubkhan Noorkhan Pathan (supra), reads as follows.
"7. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons.
Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. ..........."
"8. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. ....."
14. In the aforesaid case Ayaaubkhan Noorkhan Pathan (supra), the Hon'ble supreme Court has defined who an "aggrieved person" is and clarified that a stranger cannot be permitted to meddle in any proceeding unless he satisfies the Authority/Court that he falls within the category of aggrieved persons. As to who is an "aggrieved person" has been also explained in the said decision by holding that only a person who has suffered or suffers from any legal injury can be said to be an aggrieved person who can move the Court of law. As regards "legal right", it has also been explained in the said decision that it means an Page No.# 5/9 entitlement arising out of legal rules. It has been also defined as an advantage or a benefit conferred upon a person by the rule of law and it was further clarified that the expression "aggrieved" does not include a person who suffers from psychological or an imaginary injury.
15. In the present case, it has been submitted that the petitioner is merely claiming to be the Guardian of a student who cannot be said to have suffered any legal injury of his own and as such, he certainly cannot be considered to be an aggrieved person.
16. It has also been submitted that even though the respondent No. 6 was willing to join the new place of posting at Changmazi Pre-Senior Madrassa in terms of the order dated 03.12.2018, he was prevented from joining the said School by the local people and as such, he submitted an application before the authorities for allowing him to come back and serve as the Head Mudaris of Bowalguri Pre-Senior Madrassa.
17. It has been submitted that it is only after considering the said difficulty of the respondent No. 6 that the authorities decided to post him at Bowalguri Pre-Senior Madrassa and as such, the posting of the respondent No. 6 in the initial school, Bowalguri Pre-Senior Madrasssa was because of the aforesaid valid reason and hence, it does not suffer from any irregularity or illegality warranting interference from this Court.
18. Mr. Chistie, learned counsel appearing for the State has produced the records before this Court and has submitted that, in fact, reposting of respondent No. 6 to earlier school, Bowalguri Pre-Senior Madrass was because of objections raised by the local people who had prevented him from joining the said school, Changmazi Pre-Senior Madrassa. It was under
the aforesaid circumstances that the impugned order dated 12.02.2019 was issued.
19. Heard learned counsel for the parties and perused the materials on record.
20. The transfer of the respondent No. 6 from Bowalguri Pre-Senior Madrassa to Changmaii Pre-Senior Madrassa is not a routine transfer order but it was preceded by certain misconduct committed by the respondent No. 6. The fact that the respondent No. 6 was subjected to departmental action is not in dispute. It is also not in dispute that there was an adverse finding against the respondent No. 6 of being engaged in misuse of Mid Day Meal and misappropriation of Government fund in the said school. The enquiry report prepared by the District elementary Education Officer, Morigaon testifies to the aforesaid irregularities committed by the respondent No. 6.
Page No.# 6/9
21. It seems that the Additional Deputy Commission also conducted an enquiry relating to certain activities of the respondent No. 6 and the Additional Deputy Commissioner gave an adverse finding about misappropriation of Government fund and misuse of Mid Day Meal.
22. The authorities after considering the aforesaid enquiries conducted against the respondent No. 6, passed an order on 03.12.2018 by which the authorities imposed the penalty of stoppage of 2 (two) increments with cumulative effect under rule 7 (ii) of Assam Services (Discipline and Appeal Rules) 1964 and at the same time, while reinstating the respondent No. 6 to service, he was posted as Head Mudaris of Changmazi Pre-Senior Madrassa, Nagaon (Hojai) against the vacant post of Head Mudaris vice Bilal Ahmed Laskar in the said School, who expired on 31.01.2017.
23. Thus from above, what transpires is that the transfer of the respondent No. 6 was not a mere routine transfer but perhaps to avoid his continuity and presence in the said School where he was found to have committed misconduct of misuse of Mid Day Meal and misappropriation of Government fund.
24. From the records, it is seen that though the petitioner was transferred to said Changmazi Pre-Senior Madrassa, Nagaon (Hojai), there was resistance from the local people in that area and perhaps, because of the attending circumstances, it led to the transfer of the respondent No. 6 to the said Bowalguri Pre-Senior Madrassa.
At the same time, it is to be noted that reposting of the respondent No. 6 to Bowalguri Pre-Senior Madrassa was only because of the reason that the local people where the said school Changmazi Pre-Senior Madrassa was located, opposed his transfer there.
25. This Court is of the view that under such circumstances the authorities could have posted the respondent No. 6 to any other School or another Madrassa other than the present School.
26. Though the authorities may be justified in not insisting posting of the respondent No. 6 in the said Changmazi Pre-Senior Madrassa, the authorities have not taken into consideration the very reason for which the respondent No. 6 had been posted away from Bowalguri Pre Senior Madrassa and accordingly, this Court requires the respondent authorities to reconsider the issue of transfer and posting of the respondent No. 6 to any other Madrassa other than Changmazi Pre-Senior Madrassa, if there are problems of the respondent No. 6 not being able to join the said Madrassa because of local objections as well in the present school, i.e. Page No.# 7/9 Bowalguri Pre-Senior Madrassa.
27. This Court would also like to deal with the issue raised by learned counsel for the respondent No. 6 as regards lack of locus standi of the petitioner to file this petition.
28. True, it is now well settled that only a person whose legal or constitutional right is infringed or adversely affected, would have a right to approach the Court. It has been explained by the Hon'ble Supreme Court in the aforesaid case of Aiyoob Khan Noor Khan (supra) that merely because a person suffers from psychological or imaginary injury, he cannot be said to be aggrieved person and a person aggrieved must therefore, necessarily be one whose legal right or interest have been affected or jeopardised.
29. In the present case, what would entitle the petitioner to move this Court have been stated in para 2 of the petition by claiming that he is a guardian of his ward, at present studying in Bowalguri Pre senior Madrass and as such, being a guardian, he has been inducted in the Madrassa Management and Development Committee of the aforesaid Institution and in that capacity, he has interest to see the welfare of the ward. In that context, it cannot be said that he does not have any interest.
30. Learned counsel for the respondent No. 6 has also raised an objection by stating that petitioner did not disclose in the writ petition the name of the ward and his relation with the ward and also in which class he or she is studying.
31. As regards this, Mr. Bhuyan, learned counsel for the petitioner has produced certain document to show that the petitioner is father of one, Miss Umma Salma, who is studying in Pre-3rd year (VIII) having Roll No. 7 and has been studying since 2016, though the said document has been filed today and not furnished to the learned counsel for respondent No.
6.
32. This Court is of the view that the aforesaid fact that the petitioner is the father of the aforesaid Miss Umma Salma studying in Pre-3 rd year (class VIII) having Roll No. 7 is not a newly introduced fact, but merely supportive of the assertion already made in para 2 of the writ petition and cannot be said to have changed the nature of pleading or caused to have taken the respondents by surprise and as such failure to give these particulars at the time of filing this petition cannot be considered to be fatal. Accordingly, the petitioner being a guardian has certainly the right to espouse and protect the interest of the said minor student Page No.# 8/9 and if indeed the respondent No. 6 had been found to have been involved in certain illegal activities as concluded by the authorities through the departmental enquiry, it cannot be said that the right of the student is not adversely affected, though may not be directly affected.
Obviously, the students as well as the guardian would have a right to have teachers of good character to ensure that school functions properly and they certainly can raise grievances about continued presence of any teacher who is found to be indulged in illegal activities in the School.
To that extent, this Court is of the view that the petitioner has locus standi.
33. It has been submitted by learned counsel for the respondent No. 6 that the respondent No. 6 had already joined the said Bowalguri Pre-Senior Madrassa on 13.02.2019 which is prior to passing of interim order by this Court on 25.02.2019 to the effect that the impugned order dated 12.02.2019 passed by the Director of Elementary Education, Assam reposting the respondent No. 6 as Head Mudari of Bowalguri Pre Senior Madrassa is stayed until further order(s).
34. This Court is of the view that even if the respondent No. 6 had already joined the said school, the authorities can still reconsider the posting of the respondent No. 6 to any other appropriate institution considering the fact that the authorities at the time of reposting respondent No.6 to Bowalguri Pre-Senior Madrassa did not take into consideration the circumstances which led his transfer from the said Bowalguri Pre-Senior Madrassa.
35. Learned counsel for the petitioner, however, submits that the respondent No. 6 had not yet joined Bowalguri Pre-Senior Madrassa and earlier In-charge Head Mudaris, Anwara Khatun is continuing.
36. This Court is of the view that this aspect can be looked by the authorities.
Be that as it may, even if the respondent No. 6 had already joined his original Madrassas, Bowalguri Pre-Senior Madrassa, the authorities will reconsider the said transfer of respondent No. 6 to Bowalguri Pre-Senior Madrassa and if the earlier in-charge Head Mudaris, Anwara Khatun is continuing, she will be allowed to continue as in-charge Head Mudaris till appropriate order is passed as directed above.
37. The aforesaid exercise shall be undertaken by the official respondents within a period of 1 (one) month from the date of receipt of a certified copy of this order.
Page No.# 9/9 Accordingly, in any event the respondent No. 6 shall cease to hold the post of Head Mudaris of Bowalguri Pre-Senior Madrassa after one month, even if he had rejoined the school as claimed.
38. With the above observation and direction the present petition is allowed by setting aside the impugned order dated 12.02.2019.
JUDGE Comparing Assistant