High Court
Case Details
WP(C) 4717/2007 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Mr. H A Sarkar, learned counsel appearing for the petitioner. The departme ntal authorities are represented by Mr. UK Goswami, the Standing Counsel, Educat ion. The respondent No.6 Mohammad Ali is represented by Advocate Mr. B Sinha. 2. The petitioner and the respondent No.6 are litigating since long for the post of Hindi Teacher in the Fakrul Ullum Arabic College (hereinafter referred to as ’the Arabic College’) and the petitioner challenges the order dated 27.12. 2006 (Annexure-P), where the Dy. Director of Madrassa Education, Assam has decla red that the appointment of the writ petitioner not being made by the Managing C ommittee of the Arabic College was illegal and accordingly the respondent No.6, who was appointed by the Managing Committee on 6.9.1992 allowed to continue in s ervice as the Hindi Teacher of the Arabic College. It may be noted that the resp ondent No.6 was appointed in the year 1992, when the venture Arabic College was yet to be provincialised and the Arabic College was subsequently provincialised on 15.8.1994. The petitioner was appointed as the Hindi Teacher through the orde r dated 20.1.1993(Annexure-E), issued by the Superintendent of the Arabic Colleg e and the aggrieved respondent No.6 challenged the appointment of the writ petit ioner through the Civil Rule No.552/1994. Through the judgment dated 5.12.1995 ( Annexure-K), this Court quashed the appointment of the Alauddin Mondal and allow ed Mohammad Ali to continue as Hindi Teacher in the Arabic College. However the departmental authorities were given to liberty to consider the grievances of Ala uddin Mondal. 3. The aggrieved party i.e. Alauddin Mondal filed the Writ Appeal No.33/199 6 and the Division Bench through its order dated 28.2.1996 (Annexure-M) declined to disturb the order passed by the learned Single Judge in favour of Mohammad A li. However since the Dy. Director, Madrassa Education in the meantime passed th e order on 27.6.1995 (Annexure-L) upholding the legality of the appointment of M ohammad Ali, the aggrieved petitioner Alauddin Mondal challenged the Dy. Directo r’s decision through the Civil Rule No.1687/1996. Through the judgment dated 17. 7.2006 (Annexure-N), this Court interfered with the Dy. Director’s order dated 2 7.6.1995, as hearing was not afforded to the parties and remitted the matter for reconsideration by affording a hearing to the rival contenders. On remand of the matter, the parties were heard by the Dy. Director and
Decision
4. he recorded the following findings in favour of respondent No.6 Mohammad Ali :- (i) Mohammad Ali was appointed by the M.C. on 07.09.92 when the college was simp ly recognised and at this state the M.C. was the appointing authority of the emp loyees. (ii) Subsequently, the college was taken under full Grant-in-aid system from the moths of October in 1992 and the Govt. provincialised the college w.e.f. 15.08. 94 under Assam Madrassa Education (Provincialisation) Act, 1995. In both the cas es the post was sanctioned and retained against the name of Mohammad Ali - the H indi teacher of the college. (iii) He has been discharging services to the Arabic College since 1992 till dat e for a long period of 14 years. (iv) He has been getting his salary from the Govt. exchequer regularly. (v) The Govt. in the meantime, has upgraded the post to the graduate scale of pa y and fixed the qualification, for the post of Madhyama Bisarad & H.S. Examinati on. (vi) In the meantime, he got a good deal of experience in this line to render hi s services properly. In so far as the writ petitioner Alauddin Mondal is concerned, it was fo 5. und that although the Managing Committee of the Arabic College was competent to issue appointment order under the prevalent norms, the appointment of Alauddin M ondal was not made by the Managing Committee. Instead, the Dy. Director, Madrass a Education without reference to the Managing Committee, selected him for appoin tment. Accordingly the unauthorised appointment of the Alauddin Mondal was quash ed and consequential direction was issued to allow the respondent No.6 Mohammad Ali to continue his service as the Hindi Teacher in the Arabic College. Mr. Sark ar, learned counsel for the petitioner refers to the resolution dated 6.9.1992 a dopted by the Managing Committee of the Arabic College to project that the Secre tary of the Managing Committee was authorised to take steps to fill up the vacan t post of Hindi Teacher and on the basis of the resolution of the Managing Commi ttee, the petitioner contends that the appointment given by the Secretary to the writ petitioner was on authorisation of the Managing Committee. The order dated 6.1.1993 (Annexure-D) of the Dy. Director, Madrassa Education reveals that neit her the Managing Committee nor its Secretary had any role on the selection of th e writ petitioner in the Hindi Teacher’s vacancy and in fact it was the Dy. Dire ctor himself who selected the petitioner and ordered for his appointment in the Arabic College. The order of appointment issued subsequently by the Superintende nt to the petitioner is therefore only a consequential order in pursuant to the selection and appointment made by the Dy. Director. 6. Rule-1 of Appendix-1 of Service Rule for Employees of Government Aided S chools (hereinafter referred to as ’the Service Rule’), which governs the appoin tment at the relevant time in venture institution, shows that it is the Managing Committee which is competent to appoint staff in the venture institution. The S ervice Rule does not confer any power of appointment either to the Superintenden t/Secretary of the Managing Committee or the Dy. Director of the Madrassa Educat ion. The records of appointment shows that the writ petitioner was selected and appointed by the Dy. Director, whereas the respondent No.6 Mohammad Ali was appo inted on 6.9.1992 by the Managing Committee of the Arabic College. This was the basis for according approval to the appointment of the respondent No.6 through t he impugned order dated 27.12.2006. 7. On further scrutiny of the matter and having considered the matter once again in the context of the competent authority at the relevant time for the pos t of Hindi Teacher in the non provincialised Arabic College, I see no scope to d isturb the impugned order dated 27.12.2006 (Annexure-P) issued by the Dy. Direct or of Madrassa Education, Assam. 8. Accordingly no merit is found in this case and the same is dismissed.