Gauhati High Court
Binita Pathak vs Dr. Tulumoni Devi And 5 Ors on 6 April, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/10
GAHC010039072022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/645/2022
BINITA PATHAK
W/O-MANONAYAN PATHAK
R/O-MAZGAON
EAST KHARA AATI
TEZPUR
PIN-784001
DIST-SONITPUR
ASSAM.
VERSUS
DR. TULUMONI DEVI AND 5 ORS.
W/O RATUL NEOG
R/O PANIGAON CHARIALI
BISHNU RABHA PATH
P.O.-NAGAON
PIN-782001
2:THE STATE OF ASSAM
REPRESENTED BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM
EDUCATION (ELEMENTARY) DEPARTMENT
DISPUR
GHY -06.
3:THE SPECIAL COMMISSIONER
ELEMENTARY EDUCATION DEPARTMENT
DISPUR
GUWAHATI-06
4:THE DIRECTOR
SCERT
ASSAM
Page No.# 2/10
KAHILIPARA
GUWAHATI-19
5:THE ADDITIONAL SECRETARY TO THE GOVERNMENT OF ASSAM
ELEMENTARY EDUCATION DEPARTMENT
KAHILIPARA
GHY-19
6:THE DEPUTY COMMISSIONER
NAGAON
ASSAM
------------
Advocate for : MR. B P BORAH
Advocate for : SC
ELEM. EDU appearing for DR. TULUMONI DEVI AND 5 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 06.04.2022 For the sake of convenience, the parties are referred as per their position in the connected writ petition.
2) Heard Mr. M.K. Das, learned counsel for the respondent no. 6/ applicant. Also heard Mr. N.J. Khataniar, learned standing counsel for Elementary Education Department, representing the respondent nos. 1, 2 and 4, Mr. B. Gogoi, learned standing counsel for SCERT, respondent no. 3, Mr. S.R. Baruah, learned Government advocate, representing respondent no. 5 and Mr. A.C. Borbora, learned senior counsel, assisted by Mr. B.P. Borah, learned counsel for the writ petitioner.
3) By filing this interlocutory application, the respondent no. 6 is seeking modification/ variation of the order dated 02.03.2022 passed by the Page No.# 3/10 Court in W.P.(C) 1509/2022. It may be mentioned that in the connected writ petition, i.e. W.P.(C) 1509/2022, the petitioner has assailed the notification dated 15.02.2021, passed by the Special Commissioner to the Govt. of Assam, Elementary Education Department by which the respondent no. 6 was allowed to hold the current charge as the Principal of Government Shikshan Mahavidyalaya, Nagaon (hereinafter referred to as GSM, Nagaon for short) along with financial power.
4) Issue notice returnable on 27.04.2022. As all the sides are represented, the learned counsel for the respondent no. 6 shall serve requisite extra copies of this interlocutory application to the learned standing counsel/ counsel for the other respondent nos. 1 to 5.
5) Heard all sides on the prayer for interim relief. 6) From the materials available on record, it is seen that the
petitioner, namely, Dr. Tulumoni Devi and the respondent no. 6, namely, Binita Pathak have been litigating for some time. Therefore, it would be appropriate that some factual matrix be stated in this order.
a. By an order dated 28.11.2019, passed by this Court in W.P.(C) 5682/2019, a direction was issued to the Commissioner and Secretary to the Government of Assam. Elementary Education Department to re- look into the matter of eligibility of the petitioner therein, namely, Lawanu Bordoloi and the petitioner herein, namely, Dr. Tulumoni Devi, the In-charge Principal of GSM, Nagaon.
Page No.# 4/10 b. On allegations of financial irregularities regarding misappropriation of money by way of increasing admission fees and taking admission of 50 additional seats in B.Ed. First Year course, which was allegedly made some faculty and teachers on deputation, pending departmental proceeding, the petitioner was suspended as Principal of GSM, Nagaon. The said order was assailed by the petitioner by filing a writ petition, which was registered as W.P.(C) 5744/2021. In the said writ petition, by an interim order dated 29.10.2021, it was provided by this Court that as per earlier order dated 28.11.2019 in W.P.(C) 5682/2019, there was a requirement on part of the authorities to re-examine the eligibility of petitioner therein, namely, Lawanu Bordoloi and the petitioner herein, namely, Dr. Tulumoni Devi and till such question was finally examined an decided, there cannot be any sufficient reason to remove the petitioner from being the In-charge Principal.
c. In the context of above, the learned senior counsel for the petitioner has submitted that in connection with the enquiry conducted against the petitioner, the Additional Secretary to the Government of Assam, Elementary Education Department vide order no. AEE.325/2018/Pt/295 dated 02.04.2022, had held that during the enquiry, no concrete proof of misappropriation of public money by the petitioner had come to surface and hence, the enquiry officer had suggested to the Director of SCERT, Assam to conduct an audit of the accounts of GSM, Nagaon immediately and hence, no disciplinary action can be instituted against the petitioner right now on the present complaint filed by some of the faculties and teachers on deputation. Accordingly, the Governor of Assam had withdrawn the departmental proceedings drawn up against Page No.# 5/10 the petitioner vide letter no. AEE 325/201/ 2018/Pt/197 dated 25.10.2021. It was further provided that the Departmental Promotion Committee will take decision regarding her promotion, which has been kept under sealed cover, after examining of all relevant records. A copy of the said order dated 02.04.2022, as produced by the learned senior counsel for the petitioner is retained on record.
d. In the meanwhile, by a notification dated 28.12.2021, passed by the Special Commissioner to the Govt. of Assam, Elementary Education Department, in exercise of power under Rule 7 of the Assam State Council of Educational Research and Training (CTEs, IAESs) Promotional Service Order, 2020, amongst others, the respondent no. 8 herein was promoted and posted temporarily, until further orders, to officiate as Professor of CTE, Nagaon. The said order has been assailed by the petitioner by filing W.P.(C) 1173/2022. This Court by an interim order dated 21.02.2022, the said notification dated 28.12.2021 was stayed until further order and the respondent authorities were directed to produce the record of the process of relooking the eligibility of the petitioner, if any, and if made as per the earlier order [i.e. order of the Court dated 28.11.2019 in W.P.(C) 5682/2019].
e. In the meantime, by an order dated 15.02.2022, the Special Commissioner to the Government of Assam, Elementary Education Department allowed the respondent no. 8 to temporarily hold the current charge as Principal In-Charge of GSM, Nagaon till further order. The said order has been challenged by the petitioner in the connected writ petition, registered as W.P.(C) 1509/2022 and this Court passed the following interim order dated 02.03.2022:-
Page No.# 6/10 "It is clarified that by the interim order dated 21.02.2022 in W.P.(C) 1173/2022, the order of promotion of the respondent no. 8 therein dated 28.12.2021 being stayed would also have a consequential implication that any further order based on the said order of promotion has also been stayed.
In this petition, it was taken note of that a consequential order dated 15.02.2022 pursuant to the order of promotion dated 28.12.2021, which has been stayed earlier, is assailed. The aforesaid clarification shall be applicable also to the order dated 15.02.2022."
f. The respondent no. 8 had filed I.A.(C) 835/2022 in the proceeding of W.P.(C) 1173/2022, seeking modification of the order dated 21.02.2022 and this Court, by order dated 30.03.2022, modified the said order by holding that as the petitioner was protected by the order dated 02.03.2022 in W.P.(C) 1509/2022, there was no reason to extend the interim order dated 21.02.2022 passed in W.P.(C) 1173/2022 of staying the order of promotion dated 28.12.2021.
g. The learned senior counsel for the petitioner has produced a copy of notification dated 30.03.2022, by the Special Commissioner to the Government of Assam, Elementary Education Department by which in compliance of the order dated 02.03.2022 in W.P.(C) 1509/2022, the Government notification no. AEE.198/2020/42 dated 15.02.2022 was vacated, which was issued with the approval of the Principal Secretary to the Government of Assam, Elementary Education Department.
h. In connection with W.P.(C) 1173/2022, the petitioner had filed an interlocutory application, which was registered as I.A.(C) 1007/2022 for allowing her to continue in the post of Principal of GSM, Nagaon Page No.# 7/10 pursuant to interim order dated 21.02.2022 in W.P.(C) 1173/2022 and subsequent order dated 02.03.2022 in W.P.(C) 1509/2022. The Court by an order passed today in the said proceeding had issued a notice and no interim directions was passed therein, pending production of specific instructions from the Elementary Education Department.
i. The respondent no. 8 has also filed the present interlocutory application, i.e. I.A.(C)645/2022 in W.P.(C) 1509/2022 under Article 226(3) of the Constitution of India for modification of interim order dated 02.03.2022 in W.P.(C) 1509/2022.
7) It may be mentioned that the Court had recorded the statement made by the learned counsel for the petitioner herein to the effect that a specific statement has been made in W.P.(C) 1509/2022 that the respondent no. 8 does not hold a Ph.D. degree, which is essential for holding the post of Professor. Thereafter, in para-12 of the order dated 30.03.2022, this Court had observed as follows:-
"12. It is clarified that in the absence of any response of the State in the connected writ petition, the Court has not ventured to give any opinion as to whether the notification dated 29.03.2019 by which the NCTE (Annexure-J) in WP(C)/1509/2022 shall have primacy over the Assam State Council of Educational Research and Training (CTEs, IASEs) Promotional Service Order, 2020 as per the notification dated 01.07.2021. Moreover, no finding has been given by this Court as to entitlement of the applicant or the opposite party no. 1 to be promoted to the post of Professor. Hence, it is also clarified that this order shall not prejudice both sides when the connected writ petitions heard on merit."
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8) However, the Elementary Education Department has not taken any stand till date as to whether or not the notification dated 29.03.2019 of NCTE shall prevail over the Assam State Council of Education Research and Training (CTEs, IASEs) Promotional Service Order, 2020. Therefore, in the absence of a clear stand, at this stage, the Court is not inclined to pass any interim direction to allow the petitioner to continue as Principal of GSM, Nagaon. The petitioner may renew the prayer after the Elementary Education Department take its specific stand in the matter.
9) Moreover, it was on the premise that the respondent no. 6 was duly protected by order dated 02.03.2022 passed by the Court in W.P.(C) 1509/2022, by which notification no. AEE.198/2020/42 dated 15.02.2022 had been stayed, the Court did not extend the interim order dated 21.02.2022 in W.P.(C) 1173/2022. Therefore, the Court is not inclined to modify the said order dated 02.03.2022 in W.P.(C) 1509/2022.
10) The Court is also inclined to take note of the herein before mentioned fact that the departmental proceeding against the petitioner had been closed. It was because of the said proceeding that the petitioner was removed from the post of Principal. The said fact is another reason not to modify the order dated 02.03.2022 at this stage.
11) There is yet another reason for not passing any interim order at this stage. In course of hearing, the learned standing counsel for the Elementary Education Department has produced a copy of order no.
Page No.# 9/10 AEE.358/2020/61 dated 04.04.2022 by the Additional Secretary to the Government of Assam, Elementary Education Department, addressed to the Deputy Commissioner, Nagaon, whereby opinion of the Government was expressed that the District Administration needs to intervene in the matter and the charge of Principal be entrusted to Additional Deputy Commissioner (Education), Nagaon immediately with all financial powers until appointment of a permanent Principal there and that the said order was in order to maintain the academic atmosphere in the institution and smooth running of the teaching and learning. Therefore, as the District Administration has been directed to entrust the charge of Principal to the Additional Deputy Commissioner (Education), Nagaon, the Court has refrained from passing any interim direction at this stage.
12) By order passed today in I.A.(C) 1007/2022 in W.P.(C) 1173/2022, the Court had called upon the Head of the Department of Elementary Education Department of Government of Assam, by whatever designation called, to provide written instructions to their learned departmental advocate as to whether or not the notification dated 29.03.2019 of NCTE shall prevail over the Assam State Council of Education Research and Training (CTEs, IASEs) Promotional Service Order, 2020. In other words, the said authority was directed to inform the Court as to whether holding of Ph.D. Degree is essential educational qualification to hold the post of Lecturer and also to consequently become eligible to be promoted to the post of Lecturer/ Principal.
13) Thus, the prayer in this interlocutory application may be renewed after the said instructions are produced.
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14) List on 27.04.2022.
JUDGE
Comparing Assistant