Gauhati High Court
Shri Kandarpa Kumar Kalita & Ors vs The State Of Assam And Anr on 24 July, 2013
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
WP(C) No. 4317 of 2008
1. Sri Kandarpa Kumar Kalita
Son of Late Anandi Kalita,
R/O Village: Kathara,
P.O: Dakhingaon, P.S.: Ghagrapar,
Dist: Nalbari (Assam)
2. Md. Chanur Ali
Son of Late Hssain Ali,
R/O Village & P.O.: Byaskuchi,
Via: Sarthebari, P.S.: Barpeta,
Dist: Barpeta (Assam)
3. Sri Hem Chandra Kalita
Son of Sri Daibya Ram Kalita,
R/O Village: Gatian,
P.O: Guakuchi, P.S.: Ghagrapar,
Dist: Nalbari (Assam)
4. Sri Umesh Chandra Sarma
Son of Late Kumud Chandra SArma,
R/O Village: Deghali,
P.O: Bardigheli, P.S.: Nalbari,
Dist: Nalbari (Assam)
5. Sri Abani Choudhury
Son of Sri Jogesh Choudhury,
R/O Village: Ulabari,
P.O: Ulabari,
Dist: Nalbari (Assam)
6. Sri Anowar Hussain
Son of Late Nur Ali,
R/O Village: Kundargaon,
P.O: Dakhingaon, P.S.: Ghagrapar,
Dist: Nalbari (Assam)
WP(C) No. 4317 of 2008 Page 1 of 5
7. Sri Dipak Kumar Haloi
Son of Sri Harish Chandra Haloi,
R/O Village : Bordigheli,
P.O: Bordigheli,
Dist: Nalbari (Assam)
8. Sri Babul Das
Son of Late Dhani Ram Das,
R/O Village: Akana,
P.O: Barajol,
Dist: Nalbari (Assam)
..... petitioners
-Versus-
1. The State of Assam,
represented by the Commissioner & Secretary
to the Govt. of Assam,
Education Deptt.(Secondary) Dispur,
Guwahati-6
2. The Director of Secondary Education,
Assam, Kahilipara, Guwahati-19
3. The Commissioner of Secretary
to the Govt. of Assam, Finance Department,
Dispur, Guwahati-6
..... Respondent
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the petitioenrs : Mr. K.K. Mahanta, Senior Advocate.
Mr. Mr. K. Konwar, Advocate For the respondents : Mr. U. K. Goswami, SC, Education Department, Mr. P. Nayak , SC, Finance Department Date of hearing : 24.07.2013 Date of judgment : 24.07.2013 WP(C) No. 4317 of 2008 Page 2 of 5 JUDGMENT AND ORDER (Chaudhury, J)
1. Heard Mr. K. Konwar, learned counsel for petitioners. Also heard Mr. U. K. Goswami, learned Standing Counsel for Education Department, Assam, appearing for respondent Nos. 1 & 2 and Mr. P. Nayak, learned Standing Counsel for Finance Department appearing for respondent No.3.
2. This writ petition has been preferred by Petitioner Nos. 1 to 7, claiming to be teachers of different subjects and petitioner No.8 as office Assistant, in the extended/upgraded Higher Secondary sections of Barajol Higher Secondary School, Nalbari. Initially Barajol High School was a provincialised one. Subsequently on 28.02.2001, vide Annexure-3 Government accorded up-gradation of the said school into Higher Secondary School and thereupon two new classes, namely, Class - XI & XII in arts stream came into being. It appears that on various dates, namely, 29.03.2001, (Annexure-5), 31.05.2001 (Annexure-6), 01.03.2002 ( Annexure-7) and 19.03.2002 ( Annexure-
8) proposals were made to the Director of Secondary Education, Assam, for creation of posts of subject teachers in the newly upgraded Higher Secondary Level Schools. By the said letters apart from the school of the petitioners, 9 other schools were also covered and the request was made to the Government for taking appropriate steps. On 20.04.2001 vide Annexure-4, the Director of Secondary Education mentioned that there was no provision in the current years plan budget for creation of new posts and as such without creation of the posts by the Government, salary cannot be paid to the teachers in the upgraded section of schools for 2 classes. Accordingly, in the said letter a budget was also proposed for the purpose of creation of posts of Principal, Vice-principal, 7 subject teachers and 1 office assistant only in the petitioners' school.
WP(C) No. 4317 of 2008 Page 3 of 5
3. The respondent Nos. 1 & 3 filed 2 separate affidavits. In the affidavits filed by the respondent Nos. 1 & 3 it was mentioned that the department of Education took up the matter with the Finance Department for obtaining necessary approval in respect of up gradation of the schools of the present petitioners and Finance Department vide endorsement dated 13.01.2009, advised the Education Department to make exercise for maintaining proper Pupil- Teacher Relation (PTR) in the Higher Secondary Schools. It is stated in the Paragraph-5 in this affidavit that the Government of Education Department was advised by the Finance Department to take corrective measures first and then to approach the Finance Department. It was in the said affidavit that Education Department would make necessary exercise as required by the Finance Department and thereafter necessary proposal would be placed. On the other hand Finance Department by filing a separate affidavit stated that Finance Department was not consulted before issuance of letter dated 20.08.2001 by the Directorate of Education. From the perusal of the averments made in the writ petition it is clear that many times the Director of the Secondary Education has submitted proposals for creation of the posts in the upgraded section of Borjal Higher Secondary Schools in the District of Nalbari and Government is yet to take decisions in this regard.
4. Neither the learned counsel for petitioners nor the learned Standing Counsel could furnish any information as to whether subsequently the proposal was taken to its logical consequence. The petitioners contend that no action has been taken from Education Department. It is settled law that Writ Court cannot give any direction to the executive for creation of posts. It is within the province of the executive to create any cadre of posts, strength of said cadre depending upon the necessity, as may be felt by various authorities under the executive. What is reflected from the affidavit submitted by Respondent Nos. 1, 2 & 3 is that the matter is still going WP(C) No. 4317 of 2008 Page 4 of 5 on between the Finance Department as well as Education Department. Once the Higher Secondary Sections have been opened and students have been admitted to the course, the concerned authority should take decision as to whether there should be creation of posts. The ultimate decision is to be taken by the Government, in consultation with the Finance Department. It is the allegation of the petitioners that the matter has not been unattended since 2001. It is in the fitness of case that the executive takes the matter to its logical end at an early date as to whether the posts should be created or not.
5. Accordingly, this writ petition is disposed of with observation that since the matter involves career of the students, respondent should arrive at a decision expeditiously after being objectively satisfied with the point raised before it. Let the decision be taken by the Executive within a period of 6 months from today.
JUDGE sumita WP(C) No. 4317 of 2008 Page 5 of 5