Abutalha Md. Samsuzzuha vs State Of Assam And 7 Ors.

Heard Mr. A. R. Bhuyan, learned counsel for the writ petitioner. I have also heard Mr. N. Sarma, learned Standing Counsel, Elementary Education

Department, Assam, appearing on behalf of the official respondents as well as Mr. M. U. Mahmud, learned counsel appearing for the private

respondent No.8.

The writ petitioner herein was appointed as an Assistant Teacher in theBechimari Girls’ M. E. Madrassa on 27.07.2001 on the basis of a

recommendation of the Executive Committee dated 26.07.2001. Accordingly, the petitioner had joined in the said post and has been rendering his

services till date. The respondent No.8, viz., Md. Suruj Ali was also appointed in the Bechimari Girls’ ME Madrassa on 03.01.1994 as an

Additional Teacher and has been serving in the said post till today. Although the petitioner had joined service much later than the respondent No.8, yet,

by the order dated 23.06.2016, the services of the writ petitioner was provincialised as an Assistant Teacher of Bechimari Girls’ ME Madrassa.

Earlier the respondent No.8 had approached this Court by filing WP(C) No.2980/2013 seeking a direction upon the respondents to provincialise his

services as an Assistant Teacher of the Bechimari Girls’ ME Madrassa and this Court by order dated 15.05.2014 had disposed of the said writ

petition with a direction upon the District Elementary Education Officer, Darrang to place the service records of both the petitioner and the respondent

No.8 before the District Scrutiny Committee (DSC) so as to examine their cases and do the needful in terms of the provisions of Section 10 of the

Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. In terms of the directions contained in the order dated 15.05.2014

the District Scrutiny Committee (DSC), Darrang had met and examined the records pertaining to the writ petitioner and the respondent No.8

whereafter, a minute of the meeting dated 28.04.2015 was drawn up whereby it was observed that the respondent No.8 herein was appointed in the

year 1993 on the basis of recommendation made by the Managing Committee which was approved by the DEEO in the year 1994. In the minutes

dated 28.04.2015, it was further observed that the appointment of the writ petitioner in the post of Assistant Teacher in the Bechimari Girls’ ME

Madrassa was made in the year 2001 but since the name of the respondent No.8 was not shown earlier by the Headmaster in the records forwarded

from the school, the proposal for provincialisation of services of the writ petitioner was approved.

It appears from the record that subsequently the respondent No.8 had onceagain approached this Court by filing WP(C) No.6974/2015 assailing the

order of provincialisation of the service of the writ petitioner herein, inter alia, contending that his appointment being prior to that of the petitioner, he

was senior in service and therefore, was entitled for being considered for provincialisation of his services. By the order dated 20.11.2015 this Court

had disposed of WP(C) No.6974/2015 by directing the authorities to act in terms of the recommendations of the District Scrutiny Committee, Darrang

dated 28.04.2015 . Acting on the basis of the order dated 20.11.2015 passed by this Court, the Director of Elementary Education, Assam i.e. the

respondent No.2 had issued the impugned order dated 18.07.2016 cancelling the order of provincialisation of the services of the petitioner dated

23.06.2016 and by issuing another order on the same date i.e. 18.07.2016, the services of the respondent No.8 has been provincialised. WP(C)

No.4489/2016 had been filed by the petitioner assailing the orders both dated 18.07.2016 issued by the respondent No.2. In WP(C)

No.3996/2018, the recommendations made by the District Scrutiny Committee, Darrang on 28.04.2015 has been put under challenge.

It appears that the writ petitioner herein had earlier filed WP(C) No.1951/2015ventilating his grievance that the representation filed by the petitioner

on 02.03.2015 before the authorities for release of his salary had not been considered by them. By the order dated 09.04.2015 this Court had disposed

of the said writ petition with a direction upon the respondents to consider the prayer for release of his salary within a period of two months from the

date of receipt of a copy of the order.

Mr. A. R. Bhuyan, learned counsel for the petitioner, submits that therespondent No.8 was appointed as an Additional Teacher in the Madrassa

whereas the appointment of the writ petitioner was against a vacant sanctioned post of Assistant Teacher. By referring to the schedule of the Act

of 2011 Mr. Bhuyan submits that the cadre of Additional Teacher is different and distinct from that of the Assistant Teacher and therefore, the fact

that the respondent No.8 was appointed prior to the writ petitioner would not give him any better claim of provincialisation ahead of the writ

petitioner. It is also the contention of Mr. Bhuyan that the recommendations dated 28.04.2015 made by the District Scrutiny Committee, Darrang does

not determine in clear and unequivocal terms, the seniority of the contesting parties or for that matter their right to claim provincialisation and

therefore, the respondent No.2 ought not to have acted on the basis of the said recommendation so as to issue the impugned order.

After perusal of the materials available on record, I find that the meeting ofthe District Scrutiny Committee, Darrang held on 28.04.2015 was in

terms of the direction issued by this Court by the order dated 15.05.2014. Not only that, even the impugned orders dated 18.07.2016 had been issued in

terms of the directions contained in the order dated 20.11.2015 passed by this Court in WP(C) No.6974/2015. Both these orders were issued after

hearing the learned counsel for the writ petitioner and have attained finality in the eye of law.

It is not in dispute that the respondent No.8 joined service in the year 1993 i.e.more than eight years before the date of appointment of the writ

petitioner.

Therefore, it is obvious that the respondent No.8 is senior to the petitioner in service. Although Mr. Bhuyan has vociferously campaigned that

Additional Teacher constitute a separate cadre under the Act of 2011, yet, he has failed to substantiate the said argument by citing any relevant

provisions of the rules. Whatever be the reality, if the respondent No.8 was appointed prior to the date of joining of the petitioner as a teacher in the

Madrassa, unless there is a contrary provision in the rules, he would have to be treated as senior to the writ petitioner for all practical purposes.Â

Such being the position there was no escape for the Committee to conclude that the respondent No.8 was senior to the writ petitioner. Taking note of

such conclusion the respondent No.2 has approved the provincialisation of services of the respondent No.8 by cancelling the earlier order issued in

favour of the petitioner.

The minutes of the meeting held on 28.04.2015 also furnishes sufficientevidence that the Headmaster of the Madrassa did not furnish proper

particulars as regards the services of the respondent No.8 as a result of which an order of provincialisation of services was issued in favour of the

writ petitioner. If such be the case the writ petitioner cannot claim to enjoy any benefit of such an order of provincialisation which was based on

erroneous projection of facts. The exercise carried out by the respondent No.2 leading to the issuance of the impugned orders have been evidently and

admittedly done in compliance of the directions issued by this Court. Therefore, there cannot be any question of interfering with the impugned orders

dated 18.07.2016 in the facts of the present case. That apart, I do not see any justifiable ground to interfere with the conclusions recorded in the

District Scrutiny Committee’s recommendation dated 28.04.2015.

For the reasons stated herein above, both the writ petitions are held to bedevoid of any merit and are accordingly dismissed. Notwithstanding the

dismissal of the writ petitions, it is made clear that the petitioner would be entitled to submit a fresh representation before the authorities with a prayer

for provincialisation of his services. If such an application is made by the petitioner, the same shall be considered on its own merit and in accordance

with the provisions of the Assam Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2017.

 Both the Writ Petitions are disposed of accordingly.

 Parties to bear their own cost.