AKLIMA KHATUN vs THE STATE OF ASSAM AND 8 ORS

1.Heard Mr. S Islam, learned counsel for the petitioner. Also heard Mr. R Islam, learned counsel for the respondent Nos.7 and 9 as well as Mr. N

Sarma, learned Standing counsel for the Elementary Education Department.

The petitioner claims to have been appointed as an Assistant Teacher of the Kuti Kaloni LP School under the Block Elementary Education Officer

Agomani in the Dhubri district as per the resolution of the Managing Committee of the school on 12.01.2008 and she submitted her joining report on

14.01.2008. The respondent No.8 on the other hand is stated to have been appointed as Assistant Teacher on 27.10.2008, whereas on the other hand,

the respondent No.9 was appointed as an Assistant Teacher of the school on 09.12.2008. If the aforesaid dates of appointments are a correct

depiction of the facts, the petitioner appears to be the senior most teacher in the school, the respondent No.8 to be the next in order of seniority and

the respondent No.9 to be the 3rd seniormost teacher. A dispute arises between the petitioner and the respondent Nos.8 and 9 at the time when the

teachers of the concerned school was in the process of being provincialised.

In the aforesaid situation, an adjudication that may be made in this writ petition would have a direct bearing upon the respondent Nos.8 and 9 in the

event, it goes in favour of the writ petitioner. Mr. R Islam, learned counsel appears for the respondent No.9 and in respect of respondent No.8, it is

seen from the office note dated 09.10.2015 that notices were duly served on respondent No.8. Flag ‘X’ which is an A/D card, bears the

signature of the respondent No.8, and, therefore, it is to be construed that the notice was duly served on the said respondent. Although, the matter is

pending since the year 2015, the respondent No.8 has chosen not to appear before this Court and in the circumstance, the matter is proceeded in the

absence of the respondent No.8.

It is noticed that in response to the Judgment and Order dated 07.06.2011 of this Court passed in WP(C)No.3090/2011 preferred by the present

petitioner, the Deputy Inspector of Schools, Dhubri had passed the order dated 23.09.2011 to determine the relevant dates of appointment and

seniority between the writ petitioner and respondent Nos. 8 and 9. The Deputy Inspector of Schools arrives at a conclusion that although as per the

original records available, the petitioner was appointed on 12.01.2008, but as per the records made available by the respondent No.8, there is nothing to

indicate that the petitioner had joined her services. The findings of the Deputy Inspector of Schools at clause 4 of the said order is as follows:

“…4.As per the original record available the petitioner was appointed as per SMC resolution No.1 dated 12.01.2008 and meeting No.31 and

accordingly she was appointed by the then Secretary of the school but neither the petitioner was joined nor attend her duties till today as per record

available with the respondent No.8.â€​

The Deputy Inspector also arrives at some conclusion that the petitioner has produced certain attendance register, but, however, the said register

does not indicate as to whether the petitioner had actually joined between 13.01.2008 and 30.06.2008.

Be that as it may, one of the reasons of the Deputy Inspector of Schools to conclude against the petitioner was that the records produced by the

respondent No.8 does not indicate that the petitioner had joined her services immediately upon being appointed. This Court is unable to accept such a

situation where one of the adversary in a litigation produces a record against the other adversary and based upon such record, the Deputy Inspector of

Schools arrives at a conclusion that the said record so produced by the adversary does not indicate the attendance record of the other. Such a

procedure adopted would be a gross violation of the principles of Natural Justice and for such reason alone, the order of the Deputy Inspector of

Schools dated 23.09.2011 is not sustainable in law. Accordingly, the order dated 23.09.2011 of the Deputy Inspector of Schools holding that the claim

of the petitioner that she was appointed from 12.01.2008 has no merit is accordingly set aside. Upon the order of the Deputy Inspector of Schools

holding that the respondent No.8 to be senior to the petitioner being set aside, all further consequential benefits that the respondent No.8 may have

accrued in the meantime including the benefit of being provincialised would also not be sustainable.

Accordingly, it is directed that the Deputy Inspector of Schools shall hold a fresh proceeding in respect of the petitioner, the respondent No.8 and 9

by giving them an adequate and appropriate opportunity of hearing and also by allowing them to produce any relevant material that they may desire to

produce to determine their respective dates of appointment and the respective dates of joining in the school concerned and thereby determine their

inter-se seniority in the school. Upon such determination, if the Deputy Inspector of Schools arrives at a conclusion that the petitioner had a better

claim for being provincialised, in such event, the Deputy Inspector of Schools through the Director of Secondary Education shall take appropriate steps

to cancel the provincialisation of the respondent No.8 and in doing so the Director shall give the respondent No.8 as well as the petitioner and the

respondent No.9 an adequate opportunity of hearing.

As the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 had already been declared to be ultra vires, in the meantime,

the further requirement for provincialisation shall be taken by the respondent authorities under Section 13(6) of the Assam Education

(Provincialisation) of Service of Teachers and Re-organisation of Educational Institute Act, 2017 .

In terms of the above, this writ petition stands disposed of.