High Court · 2012

The challenge made in both the writ petitions being interconnected have

2. In WP(C) No. 4350/2011, the challenge made is the Annexure-Q order dated 12.7.2011 passed by the Director of Madrassa Education, Assam, by which the pet itioners involved in the other writ petition being WP(C) No. 725/2012 have been allowed to continue in their services as Teacher and Chowkidar respectively. Acc ording to the petitioner involved in WP(C) No. 4350/2011, it is the Managing Com mittee of the Madrassa called Ahmedia Pre-Sr. Madrassa in the district of Nagaon . It has been contended that the service of the petitioners involved the other w rit petition had been terminated by order dated 15.2.2008 because of their unaut horized absence with effect from 13.8.2007. It has also been contended that the Director of Madrassa Education, Assam could not have passed the impugned order d ated 12.7.2011, he being not the controlling authority to deal with the affairs of a venture institution.

3. On the other hand, the petitioners involved in the other writ petition b eing WP(C) No. 725/2012 have contended that because of the financial assistance provided to the Madrassa by the Government of Assam in the Education Department, the purported Managing Committee of the institution have inducted some other pe rsons in place of the petitioners only to deprive them of their share of financi al assistance.

4. By filing Misc. Case No. 415/2012, the applicant in the said application has claimed that it is the real Managing Committee of the institution and seeks impleadment in WP(C) No. 4350/2011.

5. The prayer is allowed. The said applicant shall stand impleaded as respo ndent No. 7 in the said writ petition. Necessary correction in the cause title o f the writ petition shall be carried out by hand.

6. From the above, what is seen is that both the writ petitions involve dis puted questions of facts as to which one is the real Managing Committee of the i nstitution and as to whether the petitioners are really serving in the instituti on or as contended by the petitioner in WP(C) NO. 4350/2011 their services had b een terminated in 2008 because of their unauthorized absence since 2007.

7. I have heard Mr. M.H. Choudhury, learned counsel for the petitioners in WP(C) No. 725/2012 as well as Mr. A.R. Bhuiyan, learned counsel for the petition er in WP(C) No. 4350/2011. I have also heard Mr. R. Goswami, learned counsel app earing for the applicant in Misc. Case No. 415/2012.

8. Mr. P.N. Goswami, learned Standing Counsel, Education Department has bro ught to my notice the provisions of Assam Non-Government Educational Institution (Regulation & Management) Act, 2006 and the Rules framed thereunder. As per the provisions of the said Act and the Rules, the control of the venture institutio n remains with the respective Managing Committee. The Managing Committee shall h ave the control over the appointment of the employees, and empowered to take dis ciplinary action against them and maintains over all administrative control of t he affairs of the institution. Section 13 of the Act said so. Section 15 empower s the school authority to make appointment and take disciplinary action in respe ct of its employees. Rule 21 provides for imposition of penalty by the Managing Committee of the school. Rule 21 (d) provides that if any employee of a recogniz ed institution who is aggrieved by any order imposing on him/her penalty of dism issal, removal or termination from service or any penalty may prefer an appeal t o the appropriate court.

9. Admittedly the institution in question is at the venture stage and there is no Government control over it. Entire dispute has arisen because of financia l assistance provided to the school by the Government of Assam in the Education Department.

10. The Director of Madrassa Education, Assam could not have passed the orde r as per the aforesaid Act and Rules. Accordingly the said order is set aside an d quashed and the parties will be at liberty to approach the Civil Court to reso lve their dispute. In Mubarak Hussain Vs. State of Assam & Ors. reported in 2008 (1) GLT 615 and so also the Division Bench order dated 28.7.2010 passed in W.A. No. 227/2008 (Md. Ali Haidar Vs. The State of Assam & Ors.), it has been held b y this Court that the orders being that of the Managing Committee of the school/ college, which is not amenable to writ jurisdiction, writ petition is not mainta inable.

11. In view of the above, the Director of Madrassa Education, Assam could no t have passed the impugned Annexure-Q order dated 12.7.2011 as the said authorit y has no control over such institution.

12. isposed of. With the above liberty to all the parties, both the writ petitions are d

13. At this stage, Mr. Bhuiyan, learned counsel for the petitioner in WP(C) No. 4350/2011 has brought to my notice the notification dated 28.2.2012 issued b y the Director of Madrassa Education, Assam notifying that the administration of Venture Madrassa Institution is not vested with the Government and the same is totally vested upon the Managing Committee/Governing Body of concern Madrassa in stitutions including appointment and selection etc. For a ready reference the sa id notification is reproduced below: (cid:28)GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF MADRASSA EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19. No. DME/3/GC/2008/Pt.I/15 Dated 28.2.12 N O T I F I C A T I O N In continuation of this office Notification vide No. DME/ACA/KPSM/106/96/251 dt. 4.8.2008 also in pursuance of Govt. letter No. ELC/WP(C) 2923/2011/599, dt. 13. 9.2011 it is observed that the prevailing procedure of General Administration of Venture Madrassa Institutions are not under control of the Govt. and these are purely private institutions. The Administration of such kind of Madrassa Institu tions are not vested with the Govt. and these are totally vested upon the Managi ng Committee/Governing Body of concern Madrassa institutions including appointme nt selection etc. of Madrassa employees and no approval from this end will be re quired. The RTI and Court matters of such kind of Madrassas are also not vested with this Directorate. These matters will be solved by the S.M.C./G.B. of concer n Madrassas directly with the concerning Department/authority. This will come into force immediate effect. Sd/-Smt. G. Sharma Director of Madrassa Education, Assam Kahilipara, Guwahati-19. (cid:29)

14. Writ petitions are disposed of. There shall be no order as to costs.