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Judgment
Heard Mr. R Islam, learned counsel for the petitioner. Also heard Ms. RB Bora, learned counsel for the authorities under the BTC and Mr. R
Mazumdar, learned counsel for the Secondary Education, Assam.
The petitioner who claims to be the senior-most teacher in the amalgamated Chinakona High School in Udalguri is aggrieved by the order dated
16.08.2017 of the Director of Education, BTC Kokrajhar by which the respondent No.9 Sri Gajen Ch. Swargiary was promoted as the Headmaster in
the School concerned on a regular basis on the recommendation of the Council Level Selection Board, BTC. The petitioner claims that in service he is
senior to the respondent No.9 and, therefore, his claim for being promoted to the post of Headmaster was a better claim than the respondent No.9.
Being aggrieved, the petitioner preferred an appeal/representation before the Director of Education, BTC on 15.05.2017 raising his claim that it is
the petitioner who ought to have been promoted as the Headmaster. The said application of the petitioner was forwarded by the Inspector of Schools,
Udalguri to the Director of Education, BTC Kokrajhar by Memo No.IS/UDC/Genl/48/dated 12.06.2017. As the representation was forwarded through
an official communication, we are to understand that it was duly received by the Director of BTC. The Director of BTC is sitting over the matter and
the same has not been given its consideration. But we have taken note of that the representation is unfortunately dated prior to the order impugned
and therefore it cannot be construed to be a duly submitted representation for the said grievance.
Subsequently, the petitioner has submitted another representation before the Commissioner and Secretary to the Government of Assam in the
Secondary Education Department, Government of Assam on 06.12.2019 raising the grievance that as per the service conditions and his seniority, it is
the petitioner who ought to have been promoted as the Headmaster of Chinakona High School. A statement has been made that the said
representation is still pending before the Commissioner and Secretary and a consideration has not been given.
In the above circumstance, this writ petition has been filed assailing the order dated 16.08.2017 by which the respondent No.9 was promoted as the
Headmaster of Chinakona High School. From a reading of the prayer in the writ petition, it is discernible that the petitioner is also seeking a writ in the
nature of mandamus that he be promoted as the Headmaster of Chinakona High School by setting aside the order of promotion made in favour of the
respondent No.9.
The requirement of issuing a writ in the nature of mandamus is that the claimant must have a legal right and that right must be violated and there
must be a corresponding duty on the respondent authorities to do a particular act which was not done in the required manner and against such violation
there must be a request by the person concerned to restore his legal right. A writ would be maintainable only at a stage when such request has been
refused. We have taken note of that the stage is yet to come in this writ petition, inasmuch as, the representation of the petitioner before the
Commissioner and Secretary to the Government of Assam in the Secondary Education Department, Government of Assam filed on 06.12.2019 has
not been given its consideration. As the petitioner is claiming a violation of his legal right and he had made a request to the concerned authority for
restoring his legal right, we are of the view that the Commissioner and Secretary to the Government of Assam in the Secondary Education
Department, Government of Assam has a corresponding legal duty to attend to the grievance raised by the petitioner.
It is to be deprecated that inspite of almost an year being over, the Commissioner and Secretary is sitting over the matter. In the circumstance, we
direct the Commissioner and Secretary to the Government of Assam in the Secondary Education Department, Government of Assam to entertain the
representation dated 06.12.2019 of the petitioner and upon giving it a consideration to pass a reasoned order thereon. If the Commissioner and
Secretary is of the view that the petitioner is required to be given any personal hearing or as a matter of fact, if he is of the view that the respondent
No.9 is also required to be given a personal hearing for arriving at a decision, the same may be done by the Commissioner and Secretary by informing
the parties about the date, time and place of hearing and after making the above exercise, a reasoned order be passed within a period of 1(one) month
from the date of receipt of the certified copy of this order.
It is expected that the Commissioner and Secretary would do the needful without any further delay, otherwise, the matter would be dealt with
strictly.
Writ petition stands disposed of in the above terms.