Gauhati High Court
Chan Mamudh Mondal vs Abdul Hakim And 6 Ors on 7 December, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/9
GAHC010121592021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/1352/2021
CHAN MAMUDH MONDAL
HEADMASTER, MAYER CHAR PUBLIC M.E. MADRASSA, S/O LATE
MOZIBAR MANDAL RESIDENT OF VILLAGE MAYERCHAR PART VI PO
NAYER ALGA, PS BILASIPARA, DHUBRI, ASSAM, 783348
VERSUS
ABDUL HAKIM AND 6 ORS.
S/O JAMAL UDDIN SHEIKH RESIDENT OF VILLAGE GUTIPARA PART I, PO
KAJAIKATA, PS BILASIPARA, DHUBRI, ASSAM 783348
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
EDUCATION ELEMENTARY DEPARTMENT
DISPUR
GUWAHATI
3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
4:THE DEPUTY COMMISSIONER
DHUBRI
DHUBRI
ASSAM
783323
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
Page No.# 2/9
DHUBRI
ASSAM 783323
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
BILASIPARA
DIST DHUBRI
ASSAM 783348
7:THE PRESIDENT
SCHOOL MANAGING COMMITTEE
MAYERCHHAR PUBLIC M.E. MADRASSA
PO NAYER ALGA
PS BILASIPARA
DIST DHUBRI
ASSAM
78334
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/2305/2021
ABDUL HAKIM
S/O JAMAL UDDIN SHEIKH
RESIDENT OF VILLAGE GUTIPARA PART I
PO KAJAIKATA
PS BILASIPARA
DHUBRI
ASSAM 783348
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
EDUCATION ELEMENTARY DEPARTMENT
DISPUR
GUWAHATI
Page No.# 3/9
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
3:THE DEPUTY COMMISSIONER
DHUBRI
DHUBRI
ASSAM
783323
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
DHUBRI
ASSAM 783323
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
BILASIPARA
DIST DHUBRI
ASSAM 783348
6:THE PRESIDENT
SCHOOL MANAGING COMMITTEE
MAYERCHHAR PUBLIC M.E. MADRASSA
PO NAYER ALGA
PS BILASIPARA
DIST DHUBRI
ASSAM
783348
7:CHAN MAMUDH MANDAL
HEADMASTER
MAYER CHAR PUBLIC M.E. MADRASSA
S/O LATE MOZIBAR MANDAL
RESIDENT OF VILLAGE MAYERCHAR PART VI
PO NAYER ALGA
PS BILASIPARA
DHUBRI
ASSAM
783348
------------
Advocate for : MR. M A SHEIKH
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 6 ORS
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 07-12-2021 Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned standing counsel for the respondent nos. 1, 2 and 4, Mr. P. Saikia, learned Government Advocate appearing for the respondent no. 3 and Mr. M.U. Mondal, learned counsel for the 7.
2) It is seen that notice upon the private respondent nos. 6 and 7 was dispatched by registered post on 05.04.2021 and the respondent no. 7 had entered appearance on the notice being served. Hence, as more than one month has passed and neither acknowledgement card nor un-served notice has been returned back, unserved presumption of due service of notice is drawn under Section 27 of the General Clauses Act. None appears for the said respondent.
3) In this case, the respondent no. 7 has filed an interlocutory application for vacating the interim order of stay passed by this Court on 25.03.2021. For the sake of convenience, in this order the parties are referred to as per their respective status of parties in the writ petition.
4) It is not disputed in the Bar that the Mayer Char Public M.E. Madrassa was established in the year 1985 and obtained requisite permission in the year 1992 and departmental recognition was granted in the year 2005. It is also not disputed that an application for provincialisation of service of the Page No.# 5/9 teachers/ tutors and other staff was submitted before the respondent no. 4 on 03.06.2017.
5) The respondent no. 7 claims to have been appointed as Headmaster of the said school on 07.01.1994 and that he joined on the same date and that his appointment was provisionally approved on 22.01.2008 by the respondent no. 4 on 22.01.2008. The petitioner claims that under the signature of the respondent no. 7, he was appointed as Assistant Teacher in the said school on 28.01.2008 and that he had joined in the said post on 30.01.2008.
6) The petitioner claims that alongwith the application for provincialisation under the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the "Act of 2017"), the particulars of working teachers/ tutors was sent wherein the name of the petitioner was shown as Language Teacher in Assamese. By referring to Annexure-6 of the writ petition, the learned counsel for the petitioner claims that the name of the teachers/ tutors of Mayer Char Public M.E. Madrassa was verified and recommended by the District Scrutiny Committee and that the name of the petitioner appeared at serial no. 3 of row no. 6 of the Format for Report of District Scrutiny Committee containing details of tutor eligible for provincialisation. However, in the final select list, the respondent no. 7 was shown to be selected. Accordingly, the petitioner has assailed the same by filing this writ petition.
7) Per contra, the respondent no. 7 contends that he had submitted the application form before the District Scrutiny Committee for Page No.# 6/9 provincialisation of service and that the said District Scrutiny Committee had recommended the name of the petitioner along with other two teachers/ tutors and that the name of the respondent no. 7 appeared in the list of tutors not found eligible. Upon publication of the list on website, the respondent no. 7 claims to have made a complaint on not finding his name in the list of eligible tutors. It is claimed that the respondent no. 2 had directed the respondent no. 3 to submit authenticated proposal. It is projected that the respondent no. 3 had submitted the authenticated proposal wherein the name of the respondent no. 7 was included as Headmaster cum Language Teacher and accordingly, the name of the respondent no. 7 was recommended as eligible teacher/ tutor as Headmaster cum Language Teacher by District Scrutiny Committee, Dhubri. It is claimed that the name of the petitioner appeared at serial no. 4 as second language teacher, but as provincialisation of only one language teacher was to be made, the name of the petitioner was dropped as per the provisions of Section 3(1)(xi) of the Act of 2017, the name of the petitioner was dropped from the authenticated list. The learned counsel for the respondent no. 7 has submitted that material facts has been suppressed by the petitioner to obtain the stay of the provincialisation of service of the respondent no. 7 and as such he prays for modification of the order dated 25.03.2021 passed in this writ petition.
8) On a scrutiny of the documents appended to the writ petition as well as the respondent no. 7, it is observed that vide letter dated 08.08.2019 (Annexure-4 of the IA), the respondent no. 2 had written to the respondent no. 3 to the effect that the signatures of the Chairman, Member Secretary and Members of the District Scrutiny Committee appeared in the last page, leaving Page No.# 7/9 other two pages without any signature, which had created difficulty for authentication of the other two pages and accordingly, the original proposals were returned for authentication of the other two pages.
9) Thereafter, vide letter dated 26.11.2019 (Annexure-5 of IA), the respondent no. 3 had submitted an authenticated proposal for provincialisation of services of 278 numbers of UP and 276 numbers of LP School from Dhubri District. The Format for Report of District Scrutiny Committee (Annexure-6 of the IA) consists of 3 pages. However, if the documents appended to the writ petition as well as in the interlocutory application are correct, then, it is again observed that unfortunately the same mistake was committed by the respondent no. 3 as only the third page of the said format bears signatures of Chairman, Member Secretary and 4 (four) members of the District Scrutiny Committee and that the first two pages do not bear any signature to authenticate those pages. Once again, subject to correctness of the documents produced before the Court, it is appalling to note that highest administrative officer of Dhubri District i.e. the Deputy Commissioner, Dhubri (respondent no.3) has failed to read and understand a simple request made by the respondent no. 2 to authenticate two pages out of the three pages format. Subject to the correctness of the documents produced herein, it is equally appalling to note that how the Director of Elementary Education, Assam (respondent no. 2) could have ignored his own call as made vide letter no. EPD/46/2017/212 dated 08.08.2019 only to accept the Format for Report of District Scrutiny Committee (Annexure-6 of the IA) although the first two pages thereof do not contain the signatures of Chairman, Member Secretary and 4 (four) members of the District Scrutiny Committee to authenticate those pages.
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10) Under such circumstances, as the "Format for Report of District Scrutiny Committee" in respect of Mayer Char Public M.E. Madrassa, which was verified and approved by the District Scrutiny Committee and purportedly re- submitted by the Deputy Commissioner, Dhubri (respondent no. 3) vide forwarding letter no. DA.10/2017/Misc/405 dated 26.11.2019, as appended to the IA does not bear any signature of any of the officials viz., Chairman, Member Secretary and Members of the District Scrutiny Committee, the Court is of the considered opinion that in order to give a quietus to the issue, it would meet the ends of justice to direct the Director, Elementary Education, Assam (respondent no. 2) to cause a thorough enquiry to be conducted into the matter relating to provincialisation of services of teachers/ tutors of Mayer Char Public M.E. Madrassa, specifically in respect of the petitioner and respondent no. 7, and to take a final decision in the matter after giving an opportunity of hearing to the affected teachers/ tutors including the petitioner and respondent no. 7. The said exercise of enquiry shall be carried out within an outer period of 6 (six) weeks from the date of receipt of a certified copy of this order. The Deputy Commissioner, Dhubri (respondent no. 3) is also directed to extend his full cooperation in the enquiry process so that the enquiry is completed within the time allowed.
11) However, it is provided that till the conclusion of enquiry, the interim order dated 25.03.2021, passed in this writ petition would continue to operate, meaning thereby that the order of provincialisation of the service of the respondent no. 7, namely, Chand Mamudh Mondal shall remain stayed.
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12) Liberty is granted to the respondent no. 2 to apply for extension of time to conduct the enquiry, however, by disclosing reasons for the delay and by disclosing the names and designation of person(s) or authorities who were instrumental in causing the delay.
13) The writ petition as well as the interlocutory application stands disposed of with direction as indicated above.
JUDGE Comparing Assistant