Gauhati High Court
Md Nazrul Hoque vs The State Of Assam And 4 Ors on 17 December, 2018
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010120482015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5293/2015
1:MD NAZRUL HOQUE
S/O LT. RAJAB ALI, VILL. RAJBHARAL, P.O. BHOJKHOWA CHAPARI, DIST-
SONITPUR, PIN-784027
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
EDUCATION ELE DEPTT., DISPUR, GHY-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
SONITPUR
TEZPUR
ASSAM
4:THE BLOCK ELEMENTARY EDUCATION OFFICER
GABHARU MAZGAON
TEZPUR
DIST- SONITPUR
TEZPUR
5:RAFIQUDDIN AHMED
ASSTT. TEACHER
S/O LT. HAJRAT ALI
VILL. BHOJKHOWA
P.O. BHOJKHOWA CHAPARI
DIST- SONITPUR
ASSAM
PIN-78402
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Advocate for the Petitioner : M C KAKOTI
Advocate for the Respondent : MR.M H TALUKDARR-5
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Date : 17-12-2018 Heard Mr. M. Dutta, learned Counsel for the petitioner. Also heard Mr. N. Sarma, learned Standing Counsel appearing on behalf of the Elementary Education Department and Sri D.K. Das, learned Senior Counsel for the Respondent No.5 assisted by Ms. P. Deon.
2. Considering the fact of this matter is pending since the year 2015 and also the submission that within a few days the petitioner would retire from his service, the writ petition is taken-up for disposal at the admission stage.
3. The case of the petitioner is that he is senior most teacher of the Bhojkhowa Sirajia M.E. Madrassa and was selected for the post of Headmaster of M.E. Madrassa. The petitioner alleges that though the Respondent No.5 was also selected for the said post, the said Respondent No.5 is junior to the petitioner and accordingly, he was placed below the petitioner in the Select List. Pursuant to such selection, both the petitioner and the Respondent No.5 were promoted to the post of Headmaster in two different schools but due to their personal reasons, both of them did not join. The petitioner's case was that he could not join as he was unwell and undergoing treatment. Thereafter, the petitioner was allowed to hold the charge of Headmaster of the Bhojkhowa Sirajia M.E. Madrassa School and is continuing as such. On the other hand though the Respondent No.5 had refused to join the place of posting in which he was initially posted pursuant to his promotion, later on vide the impugned order dated 13.08.2015, the Respondent No.5 was re-posted in the Bhojkhowa Sirajia M.E. Madrassa instead of the earlier School, namely, Balidonga Milan M.E. Madrassa.
4. Sri M. Dutta, learned counsel for the petitioner, assailing the order dated 13.08.2015 Page No.# 3/5 submits that the said order could not have been passed as it amounts to a new selection of the said Respondent No.5 in which he should have been given an equal opportunity to participate. He further submits that the Select List so prepared on the earlier selection pursuant to which the posting order dated 30.10.2014 was issued, has spent its force and therefore the same could not have been acted upon and the Respondent No.5 could not have been given the fresh posting at the school where, the petitioner was given the charge of the Headmaster. Sri Dutta drawing the attention of this Court to the interim order dated 02.09.2015 states that by virtue of the same, he is continuing as the In-charge Headmaster of the School in question. Sri Dutta lastly submits that the petitioner is due to retire on 31.01.2019 and therefore the services of the petitioner should not be disturbed at this stage.
5. On the other hand, Sri N. Sarma, learned Standing Counsel of the Education Department has submitted that it was not the case of the Respondent No.5 alone but three more incumbents who were given benefit of reposting and in this connection he draws the attention of this Court to an Order dated 01.06.2015 issued by the District Elementary Education Officer, Sonitpur whereby reference has been made to four incumbents who were reposted which include the Respondent No.5 at serial no.4. He further submits that if there is anything to be aggrieved of, the petitioner has to challenge the entire order dated 01.06.2015 by making all the four incumbents party respondents in the writ proceedings.
6. Supporting the arguments of the learned State Counsel, Sri D.K. Das, learned Senior Counsel further questions the locus of the petitioner to institute this writ proceedings. He submits that the petitioner himself could have similarly applied for reposting which opportunity he did not avail of. On the other hand, it was the Respondent No.5 along with three others who made representation for reposting and there is no illegality in the Order dated 13.08.2015. However, because of the interim order of this Court, the Respondent No.5 has not been able to join and serve in the post of Headmaster of the Bhojkhowa Sirajia M.E. Madrassa. Mr. D.K. Das however fairly submits that without entering into the merits of the case, since the petitioner has just more than a month left for his retirement, it is up to the Court whether the petitioner should be allowed to complete the rest of his tenure on the In- charge basis.
7. The rival contentions of the contesting parties have been duly considered.
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8. As pointed by learned counsel for the Department that the impugned Order dated 13.08.2015 was preceded by another communication dated 01.06.2015 by which, the reposting of three more persons were done who were similarly placed like that of the Respondent No.5 in the same list, the Respondent No.5 is placed against serial No.4. However, the communication dated 01.06.2015 which is the foundation of the impugned order dated 13.08.2015 is not a subject matter of challenge.
9. Sri Dutta however submits that order dated 01.06.2015 is only a proposal and therefore there is no necessity to assail the case of the other incumbents.
10. As regards the submission of Sri Dutta that the impugned order dated 13.08.2015 of reposting the Respondent no.5 is illegal because of the fact that the Select List has in the meantime spent its force and the vacancy was not in existence when the Select List was being prepared, this Court is of the opinion that the said submission would be available only in a case of fresh recruitment and the instant is case where only reposting was done pursuant to a selection in which the petitioner himself was a selected candidate but had expressed difficulties to join in the promotional post due to personal reasons. Moreover, a bare look at the relief prayed for in the writ petition is setting aside the order dated 13.08.2015 as well as for mandamus to the authorities to post the petitioner as a regular Headmaster of Bhojkhowa Sirajia M.E. Madrassa. Both the prayer in the opinion of the Court appears to be contrary to the submission of the learned counsel for the petitioner in view of the fact that if the reposting of the Respondent no.5 as per the selection earlier held is illegal, giving a benefit of the same selection to the petitioner to hold the present post on regular basis would also be illegal. The Court is of the further opinion that it is not even the case of the petitioner that he had also applied for reposting which was not considered along with of the Respondent No.5.
11. In view of the aforesaid discussion, I do not find merits in the writ petition, and the same is accordingly dismissed. The interim order passed earlier on 02.09.2015 is hereby vacated.
12. However, considering the fact that by virtue of the interim order the petitioner is continuing in the post of Headmaster of the Bhojkhowa Sirajia M.E. Madrassa on In-charge basis and he is to retire from service on 31.01.2019, he should be allowed to continue in the Page No.# 5/5 said post on In-charge basis till the date of his retirement. This direction is issued by this Court, in exercise of its equitable jurisdiction under Article 226 of the Constitution of India.
The writ petition is accordingly disposed of.
JUDGE Comparing Assistant