High Court
Case Details
WP(C) 4073/2011 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Judgment & Order (Oral) All these writ petitions relate to disputes regarding appointment of Lecturers, inter-se-seniority amongst them, appointment of Principal etc., in the Barkhetri College, Mukalmua in the district of Nalbari, Assam. Since the subject matter o f all the writ petitions are inter-related, those were heard together and are be ing disposed of by this common order. For the sake of convenience, facts of each of the cases are briefly set out hereunder. WP(C) No. 5834/2006
Facts
02. In this case, the petitioner Md. Lokman Ali, who is a Lecturer of Barkhetri Coll ege, has challenged legality and correctness of the order dated 18.04.2006, pass ed by the Director of Higher Education, Assam, Kahilipara. By the said order, si nce the appointment of the petitioner as Principal of Barkhetri College was quas hed by this Court, the approval granted to such appointment was withdrawn. It wa s held that following the judgment and order of this Court dated 08.09.2005, pas sed in WP(C) No. 7642/2001, the Governing Body of Barkhetri College ought to hav e advertised the post of Principal in at least two leading daily newspapers to b e filled up by a qualified person as per qualification prescribed by the Univers ity Grants Commission (UGC). It was ordered that till completion of the above ex ercise, the senior most Lecturer of the college should be allowed to function as the in-charge Principal of the College. It was also ordered that Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya be allowed to continue as Lecturers in Barkhet ri College. WP(C) No. 2398/2011 03. Petitioners, Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya, who are Lecturers of Barkhetri College, have questioned the authority of respondent No. 5 (Md. Lok man Ali) to be posted as Vice Principal and on that basis to be made the officia ting Principal of the Barkhetri College. Petitioners have also challenged the or der dated 31.12.2010 whereby respondent No. 5 had assumed charge of Principal an d by misusing his authority had withheld the share of financial assistance of th e two petitioners as a vindictive step because of previous and ongoing litigatio ns between and amongst them, whereas all the other teaching and non-teaching sta ff of the Barkhetri College have been given their respective shares of the finan cial assistance provided to the College by the Government.
Legal Reasoning
counted from the said dates. He has contended that respondent No. 5, i.e. Md. Lo kman Ali has powerful political backing which would be evident from the various orders passed by this Court in the cases filed before this Court pertaining to B arkhetri College. Emboldened by such powerful political backing, he has hatched one conspiracy after another to remove the petitioners from the Barkhetri Colleg e or at least to show them as later entrants to the College after him so that hi s chances of becoming the Principal of the College becomes brighter. In fact, re spondent No. 5 in defiance of the orders of this Court functioned as Principal o f the College and made illegal appointments. This Court had to step in and preve nt him from functioning as Principal by passing appropriate stay orders. He also argues that in pursuit of his ambition, respondent No. 5 had set up a web of in trigue to adversely impact the service career of the petitioners. Because of thi s, multiple cases have been filed in respect of Barkhetri College. He, therefore , submits that based on the available materials, the two petitioners should be d eclared to have entered the rolls of Barkhetri College on 21.09.1991 and 05.08.1 992 respectively. 13. Mr. Angshuman Sarma, learned counsel appearing for the Governing Body of Barkhetri College submits that the writ petitions are not maintainable as the Barkhetri College is a non-Government institution without any Government control and is at a venture stage presently. Receipt of financial assistance fro m the Government would not confer the status of a State institution to the Barkh etri College to make it amenable to the writ jurisdiction of this Court. Moreove r, the writ petitions raise disputed questions of fact, which cannot not be gone into in a proceeding under Article 226 of the Constitution of India. He has pla ced reliance on the averments made in the affidavits filed by the Governing Body and has also referred to various decisions to support his contention. Referring to the additional-affidavit filed by the Governing Body on 17.08.2012, learned counsel submits that one Atikur Rahman had filed WP(C) No.547/2012 before this C ourt for quashing of appointment made to Grade-IV post in Barkhetri College. A s ingle Bench of this Court vide order dated 08.02.2012 held that the College in q uestion being a privately managed one, the same cannot be subjected to writ juri sdiction. Writ petition was, accordingly, dismissed as not maintainable. Appeal filed by the said Atikur Rahman, being WA No.31/2012, was also dismissed by the Division Bench. Review petition filed by Md. Nur Shahed Ali and Ms. Mamoni Bhatt acharyya for review of the judgment passed in the appeal was dismissed. He, ther efore, submits that the question as to whether Barkhetri College would be amenab le to the writ jurisdiction of this Court is no longer res-integra as the same h as been conclusively settled by this Court by holding it to be a private institu tion beyond reach of the writ jurisdiction of this Court. Mr. GN Sahewalla, learned Senior Counsel appearing for responden 14. t No. 9 in WP(C) No. 4073/2011 (Ms. Jaynab Khatun) also argues that the writ pet itions raise disputed questions of fact. He also adopts the argument of Mr. Angs human Sarma, learned counsel for the Governing Body that Barkhetri College is a private institution and no writ is maintainable with regard to the affairs of th e said institution. Referring to averments made in the additional-affidavit file d by the said respondent on 07.10.2013, he submits that petitioners have not app roached this Court with clean hands and, therefore, they are not entitled to any relief. He also submits that petitioners have not been able to place any formal appointment letters in their favour to justify their claim that they have been serving in the Barkhetri College since 21.09.1991 and 05.08.1992 and claiming se niority on that basis. 15. Mr. RP Sarmah, learned Senior Counsel appearing for respondent N os. 7 & 8 of WP(C) No.4073/2011, who are also Lecturers of Barkhetri College, ha ve supported the stand of Mr. Sahewalla, learned Senior Counsel for respondent N o. 9 (Ms. Jaynab Khatun). 16. Mr. S Kataki, learned counsel for respondent Nos. 10 to 14 of WP (C) No. 4073/2011, who are also Lecturers and employees of Barkhetri College, su bmits that the said respondents have also filed Misc. Case No.811/2013 in WP(C) No.4073/2011 for vacation of order dated 24.11.2011, whereby it was directed tha t the question of seniority amongst the Lecturers of Barkhetri College should no t be finalized without the leave of the Court. Mr. Kataki, learned counsel howev er submits that the only anxiety of his clients at the moment is that because of the ongoing litigation, the matter regarding provincialization of the services of the teaching and non-teaching staff of Barkhetri College has been held up. Th e same has aversely affected the interest of all the serving teachers and the st aff of the College. Mr. AR Bhuyan, learned counsel for the respondent No. 5 (Md. Lok 17. man Ali) has adopted the submissions made by Mr. Angshuman Sarma, learned counse l appearing for the Governing Body and Mr. GN Sahewalla, learned Senior Counsel appearing for the respondent No. 9. He further submits that selection of respond ent No. 5 as Principal is valid, as a transparent procedure was adopted by the a uthority. He, therefore, prays for dismissal of the writ petitions filed by Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya. 18. Mr. BD Konwar, learned counsel for the petitioners in WP(C) No.4 073/2011, submits in reply that there is grave doubt about bonafides of the liti gation in WP(C) No.547/2012. The way the said writ petition was structured, it i s clearly indicative of the collusive nature of the proceeding. Firstly, nobody new about any advertisement for Grade-IV post in the Barkhetri College. The pray er made in WP(C) No.547/2012 was strange to say the least. The said writ petitio n sought quashing of appointment given to an unknown person to the post of Grade -IV in the Barkhetri College. It is in such context that the Division Bench uphe ld the decision of the Single Bench considering the singular facts and circumsta nces of the case. Because of the limited scope of review jurisdiction, review pe tition filed by his clients was not entertained. His clients thereafter moved th e Hon’ble Supreme Court by filing special leave petition being SLP (C) No.CC 170 31/2012. The Apex Court vide order dated 08.09.2012, noticed that WP(C) No. 4073 /2011 and other cases were pending before this Court. While declining leave to f ile special leave petition, the Hon’ble Apex Court observed that the pending wri t petitions should be considered on their own merits. Therefore, Mr. Konwar, sub mits that the writ petitioners cannot be non-suited on the ground of non-maintai nability of the writ petitions. 19. I have heard learned counsel for the parties. 20. Regarding the contentious issue of maintainability of the writ p etition, I am of the view that considering the nature of the dispute raised in a ll the writ petitions, in any case, adjudication of the writ petitions on merit may not be necessary at this stage. However, one fact cannot be overlooked which is that since the year 2001, numerous cases have been filed by the parties, all pertaining to seniority between Md. Lokman Ali on one hand and Md. Nur Shahed A li and Ms. Mamoni Bhattacharyya on the other hand and other issues arising from and related to this core issue. This Court has also been passing various orders from time to time in all these cases. Even in WP(C) No.4073/2011, this Court by order dated 10.08.2011 had taken a tentative view that the writ petition is main tainable. Moreover, the Hon’ble Supreme Court has also made observation for cons idering the writ petitions on their own merit. However, notwithstanding the abov e, this aspect of the matter need not detain us further for the reasons discusse d hereunder. 21. In WP(C) No. 5834/2006, the petitioner, Md. Lokman Ali, has chal lenged the action of the Director of Higher Education withdrawing approval to hi s appointment as Principal following quashing of such appointment by this Court. He is also aggrieved by the decision to allow Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya to continue as Lecturers in Barkhetri College. 22. In WP(C) No.2398/2011, where Md. Nur Shahed Ali and Ms. Mamoni B hattacharyya are the petitioners, the challenge is to the posting of Md. Lokman Ali as Vice Principal and on that basis making him the officiating Principal of Barkhetri College. As already noticed above, this Court by order dated 06.05.201 1 had stayed functioning of Md. Lokman Ali as Principal of Barkhetri College. In WP(C) No.4073/2011, filed by Md. Nur Shahed Ali and Ms. Mamon 23. i Bhattacharyya, the challenge made is to the functioning of Md. Lokman Ali as P rincipal of Barkhetri College. This Court by order dated 10.08.2012 directed tha t Md. Lokman Ali shall not function as the Principal of Barkhetri College and th at interim arrangement may be made by the Director of Higher Education, Assam fo r functioning of the office of Principal without involving Md. Lokman Ali. 24. In WP(C) No. 2198/2013, filed by Md. Nur Shahed Ali and Ms. Mamo ni Bhattacharyya, appointments made by Md. Lokman Ali while he functioned as Pri ncipal-cum-Secretary of the College have been questioned. 25. The challenge made in WP(C) No.2787/2013 filed by some of the Le cturers of Barkhetri College is to the inclusion of the names of Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya in the first two places in the staff list dated 19.12.2011 forwarded by the In-charge College Principal to the Director of High er Education, Assam for provincialization. 26. Similar is the challenge made in WP(C) No.3180/2013 filed by Md. Lokman Ali. Additionally he has also challenged reflection of the post of Princ ipal as vacant in the said staff list. Whatever may be the grievance of the rival parties, the fact rem 27. ains that the same has now crystallized in the form of the staff list dated 19.1 2.2011 finalized and forwarded by the in-charge College Principal to the Directo r of Higher Education, Assam. No decision on the same has been taken by the appr opriate authority i.e., by the Director of Higher Education, Assam. No decision has been taken by the authority for the writ court to test the validity of the s ame. Without the authority taking a decision on the matter, it would be pre-matu re for the writ court to enter into the arena where the field is strewn with hig hly contentious issues based on disputed facts. But despite the disputed nature of the controversy, one thing that may not be overlooked is that this Court in t he above two cases i.e., WP(C) Nos. 2398/2011 and 4073/2011, has passed specific restraint orders prohibiting Md. Lokman Ali from functioning as Principal of Ba rkhetri College. As already noticed, the In-charge Principal of Barkhetri Colleg e had forwarded to the Director of Higher Education, Assam, the list of teaching and non-teaching staff of the Barkhetri College dated 19.12.2011 for provincial ization. The said list was submitted pursuant to Governing Body meeting of the B arkhetri College held on 18.12.2011. The staff list contains particulars of empl oyees working in the Barkhetri College as on 31.12.2010. While Md. Nur Shahed Al i and Ms. Mamoni Bhattacharyya have been placed at Sl. Nos.1 & 2 in the staff li st considering the period of service rendered, Md. Lokman Ali has been placed at Sl. No. 7. The said list as noticed above, is now before the Director of Higher Education, Assam for necessary decision. 28. Having regard to the above, Court is of the view that Director o f Higher Education, Assam should now take a decision on the above staff list of Barkhetri College dated 19.12.2011. The Director shall apply his own mind after consulting the relevant record without being influenced from any quarter. The Co urt has been compelled to sound the said note of caution considering that order sheet of the present proceeding reflects attempts of extraneous interference at various times. Therefore, it is necessary that the Director should insulate hims elf from all such influences and take a decision based on his own assessment in accordance with law. Such decision shall be taken within a period of two (2) mon ths from the date of receipt of a certified copy of this order. Any restraint or der to this effect would stand modified accordingly. However, the stay orders passed by this Court restraining Md. Lo 29. kman Ali from functioning as Principal of Barkhetri College would continue to ho ld the field till completion of the above exercise by the Director of Higher Edu cation, Assam and would be subject to such decision that may be taken by the Dir ector. 30. Before parting with the record, the Court would like to place on record about the distressing and disturbing part of the litigation. The primary object of an educational institution is to impart education to the students. No doubt, while discharging their duties, the rights and privileges of the teacher s and the staff will have to be protected and safeguarded. But, if the teachers go on litigating amongst themselves for years together, as in this case for more than a decade, such dispute will surely cast a shadow over the academic environ ment of the educational institution. Since the statistics are not before the Cou rt, this Court would refrain from making any comment on the performance of the B arkhetri College on the academic front. But this is an aspect, the Director of H igher Education, Assam may also look into while considering provincialization. B eyond this, the Court would not like to make any further comment. 31. e left to bear their own costs.
Arguments
04. The assailment is on the ground that this Court vide judgment an d order dated 08.09.2005, passed in WP(C) Nos. 152/2002, 8661/2001 & 7642/2001 h ad held that the decision to handover the charge of the office of Principal to r espondent No. 5, Md. Lokman Ali, is unsustainable and the respondents were direc ted to make appropriate arrangement for filling up of the post of Principal on r egular basis. It is further contended that the impugned resolution of the Govern ing Body dated 01.11.2002 and the consequential appointment letter dated 02.11.2 002 appointing respondent No. 5 as Vice Principal of the College and allowing hi m to discharge additional function of Principal-in-charge were never made public and those had surfaced only recently. Petitioners have also questioned the auth ority of the Managing Committee to take such decision as the Managing Committee was declared incompetent by this Court in the judgment and order dated 08.09.200 5. Lastly, it is the contention of the petitioners that for a Degree College in the State, no post of Vice Principal is sanctioned and, accordingly, no formal a ppointment of Vice Principal is contemplated. 05. This Court by order dated 06.05.2011 stayed the functioning of r espondent no. 5, Md. Lokman Ali as Principal of the College considering the seri ous challenge made against him. It was also observed that pendency of the case s hould not be a bar to release the financial assistance to the two petitioners. 06. In this writ petition, the two petitioners, namely, Md. Nur Shahed Ali and Ms. M amoni Bhattacharyya, who are serving Lecturers of Barkhetri College, have challe nged resolution Nos. 2 & 3 dated 14.03.2011 of the Governing Body of Barkhetri C ollege, whereby the two petitioners were shown as junior most Lecturers of the s aid College. Petitioners have also challenged resolution No. 2 of the Governing Body of the College dated 04.06.2011, whereby respondent No. 5 (Md. Lokman Ali) was appointed as Principal of the Barkhetri College. WP(C) No. 4073/2011 07. This Court by order dated 10.08.2011 directed that respondent No . 5 shall not, without obtaining leave of the Court, function as the Principal o f Barkhetri College. The authorities were also directed to make interim arrangem ent for functioning of the office of the Principal of the said College without i nvolving the respondent No. 5. The impugned resolutions were also suspended by t his Court. WP(C) No. 2198/2013 08. The two petitioners, namely, Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya, ar e serving Lecturers of Barkhetri College and they have challenged the legality a nd validity of the appointments made by Md. Lokman Ali (respondent No. 5) appoin ting respondent Nos. 6 to 12, namely, Md. Abdul Matlib, Sri Montu Kalita, Sri Ta pan Baishya, Mrs. Jaynab Khatun, Mrs. Rita Rajbongshi, Md. Mizanur Rahman and Md . Ayub Ali respectively as Lecturers of Barkhetri College between 17.09.2004 and 31.12.2007. According to the petitioners, respondent No. 5 had no authority to issue the appointment letters as he was illegally functioning as Principal-cum-S ecretary of the Barkhetri College in violation of the Court orders passed in WP( C) No.7642/2001. WP(C) No. 2787/2013 09. In this writ petition, the petitioners are serving Lecturers of Barkhetri Colleg e. They seek quashing of appointment of respondent No.7 (Md. Nur Shahed Ali) and respondent No. 8 (Ms. Mamoni Bhattacharyya) as Lecturers of Barkhetri College. They have also questioned the inclusion of the names of the respondent Nos. 7 & 8 in the staff list dated 19.12.2011 forwarded by the Principal-in-charge of Bar khetri College to the Director of Higher Education, Assam for provincialization. They are particularly aggrieved by the fact that the said two respondents have been shown as Senior most serving Lecturers of the Barkhetri College since 21.09 .1991 and 05.08.1992 respectively. 10. In this case, petitioner, Md. Lokman Ali, who claims to be serving as Principal of Barkhetri College has challenged the staff list dated 19.12.2011 prepared by the Principal-in-charge and furnished to the Director of Higher Education, Assam in connection with provincialization of the services of the employees of the Ba rkhetri College. His grievance relates to reflection of the post of Principal as vacant and also about inclusion of the names of respondent No. 7 (Md. Nur Shahe d Ali) and respondent No. 8 (Ms. Mamoni Bhattacharyya) and respondent No. 9 (Sha hjahan Begum). Petitioner seeks quashing of the said staff list. WP(C) No. 3180/2013 11. d counter claims of the parties have been noticed above. The broad contours of the dispute based on conflicting claims an 12. Mr. BD Konwar, learned counsel appearing for Md. Nur Shahed Ali and Ms. Mamoni Bhattacharyya, the two petitioners in WP(C) Nos.2398/2011, 4073/2 011 and 2198/2013, has strenuously argued that the above two petitioners are the Senior most Lecturers of the Barkhetri College, they having joined the College on 21.09.1991 and 05.08.1992 respectively. Therefore, their seniority should be
Decision
All the writ petitions are, accordingly, disposed of. Parties ar