High Court · 2014

Petitioner in this case is Sri Sadananda Baishya. He was appoint ed as Lower Division Assistant (LDA) in the Milan High School, Arikuchi in the d istrict of Nalbari by the Inspector of Schools, Nalbari District Circle vide ord er dated 25-04-1988. The said appointment was made following a selection held. O n 30-01-1996 he was upgraded to the post of Assistant Teacher in the said school in the suspension vacancy which occurred due to suspension of Sri Gautam Kumar Baishya, an Assistant Teacher of the school. Sri Gautam Kumar Baishya was placed under suspension vide order dated 18-08-1995 issued by the Inspector of Schools pending drawal of departmental proceeding. Following upgradation of the petitio ner Sri Sadananda Baishya to the post of Assistant Teacher, one Shri Bapukan Dek a was appointed as Office Assistant in the resultant vacancy of the petitioner S ri Sadananda Baishya on his upgradation. Petitioner submitted representations fo r regularization of his service as Assistant Teacher. Petitioner has stated that regular departmental proceeding was initiated against Sri Gautam Kumar Baishya and departmental enquiry was conducted. There is little scope of his reinstateme nt. Petitioner has complained that the Treasury Officer, Nalbari had stopped his salary since September, 2012. At this stage, petitioner Sri Sadananda Baishya has filed this w 4. rit petition seeking a direction to the respondents to regularize his service as Assistant Teacher in the Milan High School and to pay his salary as such since September, 2012.

5. This Court vide order dated 21-11-2012 had issued notice and in the interim directed that petitioner’s service should not be disturbed without t he leave of the Court. WP(C) No.5854/2012 6. Sri Gautam Kumar Baishya is the petitioner in this case. Petitio ner was selected by the District Level Selection Board, Kamrup for appointment a s Assistant Teacher in the intermediate cadre. Thereafter, he was appointed temp orarily as Assistant Teacher in the school vide order dated 14-09-1989. His temp orary appointment was subsequently regularized vide order dated 30-03-1991.

7. By order dated 18-08-1995 issued by the Inspector of Schools, Na lbari District Circle, petitioner was placed under suspension pending drawal of departmental proceeding. By a subsequent order dated 30-01-1996 issued by the In spector of Schools, one Sri Sadananda Baishya, an Officer Assistant of the schoo l, was upgraded to the post of Assistant Teacher in the suspension vacancy of th e petitioner. In the vacancy of Sri Sadananda Baishya, one Shri Bapukan Deka was appointed as Office Assistant.

8. According to the petitioner, he was exonerated of the charges fr amed against him in the disciplinary proceeding. Consequently, order dated 08-10 -1998 was passed by the Inspector of Schools reinstating the petitioner as inter mediate teacher in the school and thereafter transferred to Barkhetri High Schoo l vice Sri Pradip Kumar Baishya transferred. By the said order, Sri Sadananda Ba ishya was reverted back to his post of LDA and on such reversion, service of Sri Bapukan Deka was terminated. [The transfer of the petitioner on reinstatement a ppeared to be suspect as because his reliever Sri Pradip Kumar Baishya was an a d-hoc appointee for 3 months.]

9. Be that as it may, alleging that the school authority did not al low the petitioner to join on reinstatement, he filed a writ petition before thi s Court which was registered as Civil Rule No.5257 of 1998. This Court by order dated 26-10-1998 disposed of the said writ petition by directing the Inspector o f Schools to ensure implementation of the order of reinstatement.

10. Following the above order of this Court, Inspector of Schools pa ssed the order dated 01-04-2000, partially modifying the earlier order dated 08- 10-1998 and reinstating the petitioner in his original post of Assistant Teacher in the school (the transfer part was modified). On such reinstatement, Sri Sada nanda Baishya was reverted back to his post of LDA and on such reversion, Sri Ba pukan Deka was released from service.

11. Petitioner has complained that inspite of the reinstatement orde r, the school authority did not allow him to rejoin duty. Inspector of Schools i nstead of taking action for not complying with his reinstatement order, surprisi ngly enhanced his subsistence allowance from 50% to 75% vide order dated 28-04-2 000.

12. According to the petitioner, Sri Bapukan Deka who was temporaril y appointed as LDA (Office Assistant) on upgradation of Sri Sadananda Baishya fr om LDA to Assistant Teacher, had instituted a civil suit in the Civil Court at N albari being Title Suit No.46/98 against the termination of his service. The sui t was however dismissed for default on 11-12-2002.

13. However, proposal was submitted by the Inspector of Schools befo re the Directorate of Secondary Education, Assam for regularization of the servi ces of Sri Sadananda Baishya as Assistant Teacher and of Sri Bapukan Deka as Of fice Assistant. In such circumstances, Sri Gautam Kumar Baishya has filed the pr 14. esent writ petition seeking a direction to the respondents for his reinstatement as Assistant Teacher in the school. WP(C) No.2107/2013 While WP(C) No.5854/2012 was pending, Inspector of Schools, Nalb 15. ari District Circle issued the order dated 01-03-2013 terminating Sri Gautam Kum ar Baishya from his service with immediate effect. His service has been terminat ed on the ground that he does not have the BA degree which is essential for appo intment as Assistant Teacher.

16. Aggrieved, Sri Gautam Kumar Baishya as the writ petitioner has f iled the second writ petition challenging the legality and validity of the afore said order of termination dated 01-03-2013.

17. Affidavit has been filed by the Director of Secondary Education in WP(C) No.5451/2012 i.e., in the case filed by Sri Sadananda Baishya. Stand ta ken by the Director is that up-gradation of the petitioner Sri Sadananda Baishya from LDA to Assistant Teacher was against the suspension vacancy of Sri Gautam Kumar Baishya, Assistant Teacher. On reinstatement of Sri Gautam Kumar Baishya, Sri Sadananda Baishya is to be reverted back to his original post of LDA. Upgrad ation of Sri Sadananda Baishya from LDA to Assistant Teacher was contrary to Rul es and therefore his continuance as Assistant Teacher is illegal. On his reversi on, Sri Bapukan Deka who was appointed as LDA in the vacancy caused due to up-gr adation of Sri Sadananda Baishya, is to be released. Categorical stand of the Di rector is that up-gradation of Sri Sadananda Baishya from LDA to Assistant Teach er is illegal. Question of his regularization as Assistant Teacher doesnot arise . He is to be reverted back to his original post of LDA.

18. Affidavits have not been filed in the other two cases filed by S ri Gautam Kumar Baishya. Therefore the averments made in the two writ petitions filed by Sri Gautam Kumar Baishya have remained uncontroverted.

19. Sri Sadananda Baishya had filed Misc. Case No.837/2013 in his wr it petition i.e. WP(C) No.5451/2012 seeking a direction for release of his salar y from the month of September, 2012.

20. This Court disposed of the Misc. Case vide order dated 15-10-20 14 by directing that petitioner Sri Sadananda Baishya shall be paid salary as LD A till legality of his upgradation is decided.

21. Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. N. Barua, learned Counsel for the petitioner in WP(C) No.5451/2012 and Ms. K. D evi, learned Counsel for the petitioner in WP(C) Nos. 5854/2012 and 2107/2013. A lso heard Mr. U.K. Goswami, learned Standing Counsel, Education (Secondary) Depa rtment.

22. Coming to the claim of Sri Sadananda Baishya, petitioner in WP(C ) No.5451/2012, it is seen that his substantive post in the school is LDA. When Sri Gautam Kumar Baishya, an Assistant Teacher of the school, was placed under s uspension, the Inspector of Schools upgraded him from LDA to Assistant Teacher i n the suspension vacancy. Now he claims regularization as Assistant Teacher on t he grounds of eligibility and availability of vacancy.

23. At the time of hearing it has been brought to the notice of the Court that show cause notice was issued to the Inspector of Schools, Nalbari Dis trict Circle by the Director of Secondary Education, Assam on 02-03-2013 with th e allegation that upgradation of Sri Sadananda Baishya to the post of Assistant Teacher is not only illegal but is also violative of all rules and norms prevale nt in the year 1996. No such upgradation from LDA to Assistant Teacher was visua lized by any Rules prevalent in the year 1996.

24. Under the Assam Secondary Education (Provincialized) Service Rul es, 1982, which was then holding the field, recruitment to the cadre of Post Gra duate Teacher, Graduate Teacher and Junior Teacher was required to be made by di rect recruitment only on the basis of advertisement, test and interview. Method and procedure of recruitment are laid down in Rules 6 and Rule 7. The aforesaid Rules do not provide for promotion or upgradation of LDA to the post of Assistan t Teacher (Graduate Teacher or Junior Teacher). Therefore, upgradation of Sri Sa dananda Baishya from LDA to Assistant Teacher is illegal and he cannot continue as Assistant Teacher. He has to be reverted to his substantive post of LDA. In s uch circumstances, question of regularizing his service as Assistant Teacher doe s not arise. Infact, this is also the stand taken by the Director of Secondary E ducation, which is the correct position. Consequently, the upgradation order dat ed 30-01-1996 is set aside and quashed. WP(C) No.5451/2012 is accordingly dismis sed. Coming to the case of Sri Gautam Kumar Baishya, Assistant Teache 25. r of the school, though he was placed under suspension vide order dated 18-08-19 95, he was reinstated in service as intermediate teacher in the school vide order dated 08-10-1998 issued by the Inspector of Schools to be followed by tra nsfer to another school. When he approached this Court alleging non-compliance o f the order of re-instatement, this Court passed order dated 26-10-1998 in Civil Rule No.5257/1998 directing the Inspector of Schools to ensure implementation o f the order of reinstatement without further delay. Thereafter, the Inspector of Schools passed fresh order dated 01-04-2000 reinstating Sri Gautam Kumar Baishy a in his original post as Assistant Teacher in the school. Shockingly, four week s thereafter the Inspector of Schools passed an order on 28-04-2000 enhancing th e subsistence allowance of Sri Gautam Kumar Baishya from 50% to 75%, meaning the reby that he was continuing under suspension. This was totally illegal particula rly in the light of this Court’s direction dated 26-10-1998. Thereafter, during the pendency of WP(C) No.5854/2012 filed by Sri Gautam Kumar Baishya seeking rei nstatement in service, the Inspector of Schools, Nalbari passed the impugned ord er dated 01-03-2013 terminating the petitioner from his service with immediate e ffect. The ground given for such termination is that petitioner Sri Gautam Kumar Baishya does not have the required qualification (BA) to render service as Assi stant Teacher.

26. This order dated 01-03-2013 cannot be sustained for more than on e reason. Firstly, petitioner Sri Gautam Kumar Baishya was already reinstated as intermediate teacher vide order dated 08-10-1998. This Court passed order dated 26-10-1998 in Civil Rule No.5257/1998 filed by the petitioner directing the Ins pector of Schools to ensure implementation of the reinstatement order without fu rther delay. The said order had neither been appealed against nor reviewed. Ther efore, the order dated 26-10-1998 has attained finality. When there is a directi on of this Court to ensure implementation of the reinstatement order without fur ther delay, impugned order dated 01-03-2013 could not have been passed. It is cl early untenable and amounts to over reaching the order of this Court. Moreover, the said order has been passed 15 years after the order of this Court and that t oo without any reference to the order of this Court.

27. From the documents placed on record it is evident that petitione r (Sri Gautam Kumar Baishya) was appointed as Assistant Teacher in the intermedi ate scale since admittedly he was not a graduate. Petitioner has no where claime d that he is a graduate and therefore he was appointed as Graduate Teacher. Even his reinstatement order dated 08-10-1998 clearly indicates that he was reinstat ed in his original post of intermediate teacher.

28. Under the Assam Secondary Education (Provincialized) Service Rul es, 1982 as well as under the Assam Secondary (Middle English Schools and High S chools) Provincialization Rules, 1979, there were provisions for appointment of Assistant Teacher or Junior Teacher where qualification prescribed for recruitme nt was matriculation or intermediate (pre-university pass). Petitioner was accor dingly appointed as Assistant Teacher in the intermediate scale. That being the position, even factually, the impugned order dated 01-03-2013 cannot be sustaine d.

29. ne the validity of the aforesaid order dated 01-03-2013 on any other ground. In view of such finding, it is considered not necessary to exami

30. Having regard to the discussions made above, impugned order date d 01-03-2013 is hereby set aside and quashed. Petitioner Sri Gautam Kumar Baishy a is directed to be re-instated in service as Assistant Teacher (intermediate sc ale) forthwith with all consequential benefits. The period from suspension to re -instatement shall be treated to be on duty for all purposes.

31. ed. No cost. WP(C) Nos.5854/2012 and WP(C) No.2107/2013 are accordingly allow