Allowed

Dwarika Nath Rai v. State of Assam and Ors.

Gauhati HC13 Feb 2018WP(C)/110/2012

Case brief

AI extract

What is this about?

The Gauhati High Court quashed the refusal of a venture school to reinstate a Headmaster after his medical leave. Directing immediate reinstatement, the Court held that denying return to duty was arbitrary unless grievances like degree invalidity are resolved through proper legal procedure.

What did the court decide?

Directed the Managing Committee to allow the petitioner to resume duty as regular Headmaster immediately upon production of the certified copy of the order.

Dwarika Nath Rai Vs State of Assam and Ors. — Education and Admissions | Gauhati HC (2018)

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Page No.# 1/5

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GAHC010002522012

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 110/2012

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1:DWARIKA NATH RAI

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C/O SRI S N DEKA KALITAPARA, PIN CODE- 783101, P.O. GOALPARA, DIST. GOALPARA, ASSAM.

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VERSUS

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1:STATE OF ASSAM and ORS.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION DEPARTMENT, DISPUR, GUWAHATI- 781006.

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2:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA GUWAHATI-781019 ASSAM.

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3:THE INSPECTOR OF SCHOOLS GOALPARA DISTRICT CIRCLE GOALPARA ASSAM.

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4:MANAGING COMMITTEE GOALPARA HINDI HIGH SCHOOL GOALPARA ASSAM.

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5:SRI MONODHIR KOCH INCHARGE HEADMASTER GOALPARA INDI HIGH SCHOOL GOALPARA ASSAM

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Advocate for the Petitioner : MR.R C SAIKIA

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Advocate for the Respondent : SC, EDU

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Page No.# 2/5

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT

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Date : 13-02-2018

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Heard Mr. R.C. Saikia, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Secondary Education Department. Although, this matter was earlier heard on 11.01.2008 and again on 25.01.2008, but none appeared for the respondent Nos. 4 and 5.

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By the order dated 11.01.2018, it was recorded that Mr. H. Hatibaruah and Mr. H. Das, learned counsel are shown to be appearing for the respondent No.5, but in spite of the same, the learned counsel chooses not to appear. Again today, when the matter is called upon, none appears for the respondent Nos.4 and 5. In the circumstance, this Court deems that the matter be proceeded in the absence of the learned counsel for the respondent Nos. 4 and 5.

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The petitioner was appointed as an Assistant Teacher in the Goalpara Hindi High School on 27.10.87 as per the appointment order issued by the Secretary of the school. The petitioner joined and he served as an Assistant Teacher. Subsequently by an order dated 17.11.1990, the petitioner was allowed to act as the In-Charge Headmaster of the school as per the order of the Secretary of the Managing Committee vide memo No.GHHS/A/10/90-91 dated 17.11.1990. Subsequently, by the order dated 04.08.1993 of the Managing Committee, the petitioner was appointed as a Headmaster of Goalpara Hindi High School on 04.05.1991. The school got its provisional recognition from 01.11.1994.

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Mr. N. Sarma, learned standing counsel for the Secondary Education Department states that financial assistance was given to the school for the year 2011-12 and 2013-14. On 05.02.2010, the petitioner applied for medical leave before the Inspector of School, Goalpara for the purpose of undergoing treatment. Thereafter, the petitioner had undergone surgery on 14.02.1010 and he was advised bed rest upto 14.03.1010. On 27.02.1010, the petitioner submitted an application to the Inspector of School, seeking for extension of medical leave. The petitioner had also sent certain application to the managing committee of the school on 01.04.2010 and 01.06.2010 seeking for extension of medical leave. Subsequently upon recovery, when the petitioner presented himself before the school authorities on 02.08.2010, the respondent No.5 had refused to allow the petitioner to join as the Headmaster. The respondent No.5 is stated to be the In-Charge Headmaster of the school, who

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Page No.# 3/5

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was appointed during the absence of the petitioner. It is further noted that while the petitioner was the regular Headmaster of the school, the respondent No.5 was the In-Charge Headmaster of the school during his absence for the purpose of medical leave.

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In the circumstance, the petitioner made an application to the Inspector of School, Goalpara and on the said application being made, the Inspector by letter dated 11.02.2011 required the authorities of Goalpara Hindi School to allow the petitioner to join as the Headmaster. The same having been refused, this present petition has been preferred.

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The respondent No.5 files an affidavit-in-opposition dated 19.06.2014, wherein, a stand has been taken that the B.Ed degree of the writ petitioner was not a valid degree and that the managing committee of the school does not have any knowledge about the letter dated 05.02.2011 of the Inspector of School, requiring them to allow the petitioner to join as the Headmaster. A further stand has also been taken that the school in question being covered under the Assam Non-Government Educational Institution (Regulation and Management) Rules, 2007, the Inspector of schools is not an appropriate authority to issue such direction requiring the school authorities to allow the petitioner to join as Headmaster and that under the 2007 Rules, it is the Managing Committee, who is the appropriate authority either to allow or not to allow the petitioner to join as the Headmaster. It is an admitted position as stated by Mr. N. Sarma, learned standing counsel for the Secondary Education Department that the concerned school in question is a venture school governed by Assam NonGovernment Educational Institutions (Regulation and Management) Act 2006, (in short the Act of 2006) and under Section 13, it is the Management Committee, who shall have the control over the appointment of the employees, disciplinary action against the employees and over all administrative control of the institution.

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In view of the provision of Section 13 of the Act of 2006, the stand of the respondent No.5 that the Inspector of School has no authority to direct the school authorities to allow the petitioner to resume as the Headmaster of the school is found to be acceptable.

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In such view of the matter, there can be no direction to the respondent school that the communication of the Inspector of Schools dated 11.02.2011 be complied with. But however it is also noticed that the writ petitioner had gone on medical leave and certain surgeries were also performed on him and further at the time when the writ petitioner had gone on medical leave, he was a regular Headmaster of the school.

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Under the law when a person appointed on a regular basis goes on leave, it is incumbent upon the authorities to allow him to join upon completion of the leave. From the said point of view, the act

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of the respondent authorities not to allow the regular Headmaster to resume his duty after returning back from leave is found to be highly arbitrary and unacceptable.

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It is the view of this Court that it is incumbent upon the authorities in the concerned school to allow the petitioner to join as the regular Headmaster. If the school authorities have any other grievance against the petitioner like not having appropriate B.Ed degree or he did not avail the leave in a regular manner and therefore, he does not deserve to continue in service any more, the same cannot be a reason to not allow the petitioner to resume his duty. The procedure under the law would be to proceed against the petitioner by following the due procedure, if the school authorities have any such grievance against the petitioner.

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The question would be as to whether in view of the Full Bench Judgment of this Court rendered in Abdul Gofur Mondal –vs- State of Assam reported in 2015 (2) GLT 337 , this Court in exercise of its power under Article 226 has the jurisdiction to issue a direction to the respondent school which is infact a venture educational school to allow the petitioner to resume his duty as the Headmaster.

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In paragraph-26 of the Full Bench Judgment, it has been held that if a private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. Even a purely private body, over the internal affairs of which the State has no control, would also be amenable to jurisdiction under Article 226 of the Constitution of India.

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In paragraph-45 of the said judgment it is provided that the remedy under Article 226 of the Constitution of India will be available where there is a violation of statutory provision or where decision of a non-government educational institution affects public interest.

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In view of the above, the question of not allowing the regular Headmaster of a school who is discharging public function to join his duties after availing medical leave would be within the realm of a public interest.

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Further the Full Bench of this Court has provided that the matters pertaining to dispute relating to appointment, seniority or decision of the managing committee may not be decided in a proceeding under Article 226 and for that purpose, the educational tribunals have been constituted but at the same time, when the management of venture educational school acts in a wholly arbitrary manner depriving the regularly appointed Headmaster to resume his duty, such a dispute cannot be construed to be an internal dispute of the venture educational institution.

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In such view of the matter, it is directed that the management of the respondent No.4 shall allow the petitioner to resume his duty as the regular Headmaster of the school immediately on the production of the certified copy of the order.

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But however, it is also provided that if the management of the school has any grievance against the petitioner as indicated in the affidavit that he does not have B.Ed degree or the medical leave was not obtained in an appropriate manner, the management of the school will be at liberty to proceed against the petitioner as per law.

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Interim order, if any, passed earlier stands vacated.

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JUDGE

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Comparing Assistant

Dwarika Nath Rai v. State of Assam and Ors.

Case brief

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Dwarika Nath Rai v. State of Assam and Ors.

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