Remanded

Abul Hussain Barbhuiya and 36 Ors. v. the State of Assam and 3 Ors.

Gauhati HC4 Jun 2019WP(C)/6367/2013

Case brief

AI extract

What is this about?

The High Court set aside the Expert Committee order rejecting petitioners' claims for regularization as Hindi teachers due to destroyed records. The court directed the Education Department to redo the verification exercise and pass new orders within four months following petitioner representation.

What did the court decide?

Set aside the Expert Committee decision dated 25.07.2013 and the Commissioner's order dated 13.09.2013; directed respondents to redo the verification exercise.

Abul Hussain Barbhuiya and 36 Ors. Vs the… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010256872013

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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)/6367/2013

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ABUL HUSSAIN BARBHUIYA and 36 ORS S/O JALAL UDDIN BARBHUIYA R/O VILLAGE VICHINGCHA PT.II, P.O. VICHINGCHA, DIST. HAILAKANDI, ASSAM.

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VERSUS

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THE STATE OF ASSAM and 3 ORS

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

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Advocate for the Petitioner : MR.N J KHATANIAR

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Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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Date : 04.06.2019

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1. Heard Mr. N. J. Khataniar, learned counsel for the petitioners and Mr. N. Sarma, learned Standing Counsel, Education Department for the respondent Nos. 1 to 4.

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2. The petitioners herein contended that pursuant to an advertisement issued in the year 1991, they participated in the selection process for the posts of Hindi Teachers in Hailakandi district and the concerned committee vide resolution No. 6 dated 01.02.1994 selected 57 numbers of candidates, including the petitioners for their appointments as Hindi Teachers in Middle Schools against vacant and allotted posts under Hailakandi district. The petitioners also contended that the then District Elementary Education Officer, Hailakandi vide its order dated

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20.01.1996, appointed the petitioners in different middle schools, pursuant to which, they joined their services in their respective middle schools on 20.01.1996, 21.01.1996 and 22.01.1996, respectively. After the date of their joining and rendering such services, as they did not receive their monthly salaries and since their services were not regularized, the petitioners approached this Court in WP(C) No. 5250/2011.

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3. The Court by a common order dated 10.08.2012 passed in said WP(C) 5250/2011 and other connected matters, disposed of the petitioners’ case, directing the respondent No. 4 in the Elementary Education Department to place the cases of the petitioners before the Court Appointed Committee in terms of the decision rendered in the case of Sudhendu Mohan Talukdar

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-Vs- State Of Assam and another reported in 2007 1GLR 608. Accordingly, the cases of the petitioners for their regularization as well as for payment of salaries were placed before the Expert Committee consisting of (i) Commissioner & Secretary, Elementary Education; (ii) Officer on Special Duty; (iii) Finance Department; (iv) Senior Financial Advisor of Finance Department; (v) Deputy Secretary of Elementary Education Department, (vi) Director of Elementary Education, Assam as well as (vii) Deputy Director of Secondary Education and the said Expert Committee in its meeting held on 25.07.2013, after considering the cases of the petitioners and on perusal of the report of the concerned DEEO, Hailakandi, came to the conclusion that the petitioners were appointed as Hindi Teachers in different middle schools of Hailakandi district by the then DEEO, Hailakandi in the year 1996 and as the office of the Deputy Inspector of Schools, Hailakandi was gutted in the midnight on 18.09.1999 in a devastating fire, all the records relating to the appointments of the petitioners got burnt in the said fire due to which the original records and documents pertaining to the appointments of the petitioners as Hindi Teachers were destroyed for which the Directorate of Elementary Education, Assam is not in a position to treat the claims of the petitioners for regularization of their services as Hindi Teachers and to release their salaries as it could not be ascertained whether they are genuine teachers or not. Since the relevant records regarding appointments of the petitioners to the posts of Hindi Teachers in the middle schools in the district of Hailakandi were not available, the Expert Committee took such decision as to whether the appointments of the petitioners were by means of due and proper procedure following the advertisement and selection. Accordingly, the said Expert Committee by its decision dated 25.07.2013 rejected the case of the petitioners for regularization of their services as well as for releasing of their salaries. Thereafter, in view of the decision of the Expert Committee dated 25.07.2013, the Commissioner & Secretary, Elementary Education, Assam, on 13.09.2013 issued

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an order rejecting the case of the petitioners for regularization of their services as well as payment of their salaries.

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4. In the present case, the said decision of the Expert Committee dated 25.07.2013 as well as the consequential order of the Commissioner & Secretary, Elementary Education, Assam dated 13.09.2013 are under challenge and the petitioners have prayed for setting aside the said finding of the Expert Committee as well as the order of the said Commissioner & Secretary and for issuance of Writ of Mandamus for regularization and adjustment of their services and also to pay them regular salaries.

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5. Both, the Commissioner & Secretary, Elementary Education Department, Government of Assam as well as the Director of Elementary Education, Assam, respondents herein, have filed their affidavits in the matter.

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6. In the affidavit filed by the Commissioner & Secretary, Elementary Education, Assam, respondent No. 1, reiterated the findings of the Expert Committee dated 25.07.2013 and further, submitted that pursuant to the order of the Court dated 02.03.2013 passed by a Division Bench of this Court in WP(C) 1048/2004 (Manoj Kumar Sarma Vs. State of Assam and others), the genuineness of appointments of the petitioners were verified along with others from different districts of the State by the concerned scrutiny/verification committee constituted under different zones of the State that are — (i) Upper Assam Division, (ii) Lower Assam Division, (iii) North Assam Division (iv) Barak Valley and (v) BTC area and that the district-wise reports have already been submitted which are now pending before the Cabinet.

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7. In the affidavit filed by the Director of Elementary Education, Assam also reiterated the decision of the Expert Committee dated 25.07.2013 and placed before the Court that the posts in which the petitioners were allegedly appointed, were found to be handwriting and against the 100 posts of Hindi Teachers in middle schools advertised in the year 1991, there cannot be any such selection of 57 candidates as reflected in the select list dated 01.02.1994.

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8. The Assam Elementary Education (Provincialization) Rules, 1977, a statutory Rule under Article 309 of the Constitution of India, that came into force w.e.f. 19.03.1979 and amended from time to time, regulates the recruitment and conditions of service of teacher of elementary schools, which are provincialized under the provisions of Assam Elementary Education (Provincialization) Act, 1977.

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9. Rule 3 of said 1977 Rules provides for method of recruitment and stipulated that the validity of the list of selected candidate shall not be extended from one year from the date of its publication. After the amendment of 1977 Rules in the year 1979, it is the School Selection Committee in each Educational Sub-Divisions to be constituted by the Sub-Divisional Level Advisory Selection Board for the Elementary Education was required to select the candidates for such elementary school including the Upper Primary and Lower Primary in provincialized elementary schools of the State, wherein the Chairman of the said Divisional Advisory Board of the Elementary Education and the Deputy Inspector of Schools was the Chairman and Secretary of the Selection Committee.

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10. The Sub-Divisional Level Advisory Board as per Rule 3 (v) was to be nominated and constituted by the Government from time to time in each of the Sub-Divisions of the district concerned, where the term of such nominated Members of the selection board in the Sub-Division was maximum of one year.

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11. At the relevant point of time as per the provisions of Rule 3 (v) of said 1977 Rules, there existed a selection board in each of the Sub-Divisions and such selection board consisted of one Chairman, Social Worker to be nominated by the Government; seven experts, educationist to be nominated by the Government; the District Elementary Education Officer as the Member and the Deputy Inspector of Schools of the concerned Sub-Division as the Member Secretary.

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12. The alleged select list dated 01.02.1994 annexed by the petitioners in the petition reflects that the same was signed by the concerned Sub-Divisional Level Advisory Board, signed by the Members of the Selection Board, one convener of the Selection Committee and the Chairman of the said Selection Committee, but the said select list on the basis of which the petitioners are alleging their appointments and payment of salaries, does not have the signature of the Member Secretary.

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13. It is also seen that the petitioners’ claimed that they were appointed by the order of the then DEEO, Hailakandi on 20.01.1996, whereas the alleged select list was of 01.02.1994 and the petitioners failed to place about the validity of the select list that otherwise have already lost its force on expiry of one year from the date of its publication. The petitioners herein contended that they have joined as Hindi Teachers in different middle schools in the district of Hailakandi on 20.01.1996, 21.01.1996 and 22.01.1996 respectively on the basis of their appointment orders

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dated 20.01.1996 issued by the then DEEO, Hailakandi.

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14. The respondents in the Elementary Education Department also did not specify as to when it constituted the relevant Sub-divisional Level Selection Board for the district of Hailakandi and whether such selection board had its validity when the alleged selection took place on 01.02.1994 as Rule 3 (v)(f) of the said 1977 Rules prevalent at that relevant point of time, involved in this case, specified that the term of selection board is maximum of one year. Moreover, the impugned finding of the Expert Committee as well as the impugned order of the Commissioner & Secretary of Education Department are common that the records of selection of the petitioners were gutted in the devastated fire in the office of the Deputy Inspector of Schools, Hailakandi on 18.09.1999 and therefore, no records regarding the selection and appointment of the petitioners could be found, whereas the Annexures appended to the present petition as well as in the finding of the Expert Committee dated 25.07.2013, it is clearly reflected that the petitioners were appointed by the then District Elementary Education Officer, Hailakandi in January, 1996 and therefore, the records of alleged appointments of the petitioners could not have been available in the office of the Deputy Inspector of Schools, Hailakandi that was gutted on fire.

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15. For the reasons stated above, the Court is of the view that the Expert Committee in its meeting held on 25.07.2013 did not carry out the exercise in proper manner to find out about the selection and appointment of the petitioners as Hindi Teachers in Hailakandi district.

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16. Accordingly, the impugned decision dated 25.07.2013 of the Expert Committee with regard to the petitioners of WP(C) No. 5250/2011 (Abul Hussain Borbhuyan and 41 others Vs. State of Assam and others) is hereby set aside and quashed. Consequently, the order of the Commissioner & Secretary in the Elementary Education, Government of Assam under No. WP(C)5250/2011/1146/155 dated 13.09.2013 is also set aside and quashed. The respondents in the Elementary Education Department, particularly, the Commissioner & Secretary, Elementary Education Department, Assam, the Director of Elementary Education, Assam and the District Elementary Education Officer, Hailakandi along with other Members of the Expert Committee in terms of the common order dated 10.08.2012 relating to WP(C) No. 5250/2011 are directed to redo the exercise with regard to the petitioners pursuant to the said order dated 10.08.2012 passed earlier by this Court in said WP(C) No. 5250/2011. The petitioners shall submit a certified copy of this order along with a representation before the Commissioner & Secretary, Elementary

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Education, Government of Assam obtaining necessary acknowledgment.

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17. In the event of filing of such representation along with the certified copy of this order, the Commissioner & Secretary in the Elementary Education Department of the State shall carryout the exercise, as directed above, within a period of four months from the date of receipt of such representation of the petitioners along with the certified copy of this order, as noted above. The said Commissioner & Secretary after such decision of the Expert Committee shall pass an appropriate order in accordance with law intimating its finding to the petitioners.

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18. With the above observation and direction, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Abul Hussain Barbhuiya and 36 Ors. v. the State of Assam and 3 Ors.

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Abul Hussain Barbhuiya and 36 Ors. v. the State of Assam and 3 Ors.

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