Allowed

Smt Suchibrata Patowary v. the State of Assam and 6 Ors.

Gauhati HC17 Feb 2021Review.Pet./99/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a review petition, recalling an interim order that directed the petitioner to approach the Educational Tribunal. The court found that crucial issues regarding seniority and the applicable provincialisation Act were left un-adjudicated in the original order, necessitating restoration of the petition for proper determination.

What did the court decide?

Order dated 13.03.2018 in WP(C) No. 5125/2013 recalled; matter restored to file for proper adjudication; review petition allowed.

Smt Suchibrata Patowary Vs the State of Assam and 6… — Service and Employment | Gauhati HC (2021)

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GAHC010078322018

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

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Case No. : Review.Pet./99/2018

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in WP(C) No.5125/2013(D/O) with WP(C) No.6895/2004(D/O)

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SMT SUCHIBRATA PATOWARY

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D/O LT. NABIN CHANDRA PATOWARY, H/NO.3, PUB SARANIA, BYE LANE NO.6, WEST HILL SIDE, GHY-3, DIST- KAMRUP METRO

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VERSUS

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THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION SECO DEPARTMENT, DISPUR, GHY-6

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2:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 781019

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3:THE INSPECTOR OF SCHOOLS KAMRUP DISTRICT CIRCLE PANBAZAR GUWAHATI 781001 ASSAM

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4:THE PRINCIPAL/HEADMISTRESS BONDA ANCHALIK HIGH SCHOOL BONDA GUWAHATI DISTRICT KAMRUP 781026

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5:MS NIRUPAMA DEKA C/O SMTI. SWARNA PRABHA DEKA HEADMISTRESS

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BONDA ANCHALIK HIGH SCHOOL BONDA GUWAHATI DISTRICT KAMRUP 781026

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6:THE SCHOOL MANAGING COMMITTEE BONDA ANCHALIK HIGH SCHOOL REPRESENTED BY ITS PRESIDENT BONDA GUWAHATI DIST KAMRUP 781026

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7:MRS. SWARNA PRABHA DEKA PRINCIPAL/HEADMISTRESS BONDA ANCHALIK HIGH SCHOOL BONDA GUWAHATI DISTRICT KAMRUP 78102

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Advocate for the Petitioner : MR. M K CHOUDHURY

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Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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O R D E R

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17.02.2021

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Heard Mr. M. K. Choudhury, learned Senior counsel assisted by Mr. P. Bharadwaj, learned counsel for the review petitioner. Also heard Mr. M. U. Mahmud, learned counsel with Mr. C. Deka, learned counsel for the respondent No. 5.

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2) No representation on behalf of the respondent numbers 1 to 4, 6 and 7.

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3) This petition has been filed to review the order dated 13.03.2018 passed by this Court in WP(C) No. 5125/2013 whereby the Court rejected the prayer of the petitioner for a direction to the respondents therein to provincialise her service under the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012 since during pendency of the matter, a Division Bench of this Court by order dated 23.09.2016 passed in WP(C) No. 3190/2012 (Chandan Kr. Neog -Vs- State of Assam & others) declared the said 2011 Act as ultra-vires and unconstitutional, reported in 2016 (5) GLT 296. By the said Order dated 13.03.2018 passed in WP(C) No. 5125/2013 the Court

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directed the petitioner to approach the concerned Educational Tribunal for redressal of her grievances relating to provincialisation of her service and such Tribunals have been constituted by the Government in terms of the Full Bench Judgment of the Court in the case of Abdul Gafur Mandal -Vs- State of Assam & Others, reported in 2015 (2) GLT 337.

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4) The petitioner stated that being HSSLC (10+2) passed and Pravin in Hindi, the authority of Bonda Anchalik High School during its venture stage temporarily appointed her as a Hindi teacher in the said school and there is an Inspection Report dated 10.11.2001 of deed and Inspector of Schools, Kamrup in that regard reflecting her name in the school record showing her name at Srl. No. 9 to be the second Hindi Teacher of that school. The respondent No.7 as the Principal/ Headmistress of said Bonda Anchalik High School (respondent No.4) later on 28.12.2001 issued second appointment order to the petitioner recording her appointment as Hindi Teacher of said school w.e.f. 22.11.2001.

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5) Prior to her appointment as Hindi Teacher of said school, its authority on 14.08.1989 appointed one Smt. Promila Das, a matriculate only, as a teacher of the school. As said Smt. Promila Das did not possess the requisite educational qualification at the relevant time for appointment, the school authority included petitioner’s name as a Hindi teacher of the school and obtained provisional recognition from the authority concerned in the year 2002 w.e.f. 01.01.2001. Petitioner obtained her BA degree in the year 1990 and B.Ed. degree in the year 1994, both from Gauhati University.

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6) Said respondent No.7 appointed her sister, the respondent No.5 as a teacher of the said school, who joined her service in the later part of June 2010. But said respondent No.7 being the Principal/Headmistress of the School manipulated the school records, the respondent No.5 joined the said school on 22.08.2009, on the basis of an interview held on 02.08.2009 and that her appointment was approved by the Managing Committee of the school on 24.12.2009. When the issue of provincialisation of said Bonda Anchalik High School was taken up under the provisions of said 2011 Provincialisation Act, respondent No.7, abusing her power as the Head of the said institution, forwarded the name of the respondent No.5, her sister, as the third Assistant Teacher (Arts) of the said school. During all such manipulation, though the respondent No.5 had been shown to have joined her service in the said school on 22.08.2009, but it was a state holiday being the “Tithi of Srimanta Sankardeva”. The respondent No.7, illegally exercising her power as the Head of the said

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institution and influencing its Managing Committee showed the petitioner to be the Craft Teacher of the school thereby depriving her from provincialisation of her service under the said 2011 Act and disregarding her better claim for provincialisation of service.

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7) Petitioner brought all these facts to the notice of the respondent authorities as well as the concerned District Scrutiny Committee of Kamrup (M) District, pursuant to which the concerned District Scrutiny Committee though decided not to fill up the third Assistant Teacher (Arts) of the school, for the time being and forwarded the matter to the State Selection Committee for further action, but because of the influence of the respondent No.7 respondent authorities on 30.07.2013 provincialise the service of the respondent No.5 under the provisions of said 2011 Act. The petitioner also placed before the authorities that while approving the alleged appointment of the respondent No.5, the Inspector of Schools, Kamrup (M), Guwahati observed that her such approval was subject to attaining her B.Ed. Degree. Petitioner stated that ignoring all those facts, respondent authorities proceeded to provincialise the service of said respondent No.5 and others of the school.

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8) Being aggrieved the petitioner preferred the said WP(C) No. 5125/2013 praying amongst others, (i) to set aside and quash the list of employees for provincialisation forwarded by the school authority reflecting the name of respondent No.5 as the third senior most Assistant Teacher of Arts in said Bonda Anchalik High School, (ii) to insert the name of the petitioner in place of said respondent No.5 in any list of employees to be recommended for provincialisation, (iii) to set aside and quash the appointment order passed by the respondent authorities provincialising the service of said respondent No.5 as the third senior most Assistant Teacher of Arts of the school and (iv) to issue appropriate direction to respondent authorities to make a proper enquiry regarding appointment of said respondent No.5 and regarding recommendation of her name for provincialisation of service.

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9) Said petitioner of WP(C) No. 5125/2013 as a Review Petitioner in this petition submitted that the Court while issuing notice to the respondents inside WP(C) No. 5125/2013, in the interim observed that provincialisation of service of said respondent No.5 in said Bonda Anchalik High School shall be subject to the outcome of said writ petition and that in the meantime the status quo on the service of the petitioner should also be maintained.

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10) It is submitted by the petitioner that as the said 2011 Act was declared as ultra-vires

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and unconstitutional by a Division Bench Judgment dated 23.09.2016 passed in WP(C) No. 3190/2012 in the case of Chandan Kr. Neog (supra), this Court by order dated 13.03.2018 passed in WP(C) No. 5125/2013 while rejecting the prayer of the petitioner for provincialisation of her service under the said 2011 Act and allowed her to approach the concerned Educational Tribunal and disposed of her said writ petition, but some of the important issues raised in said WP(C) No. 5125/2013 were left un-adjudicated.

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11) The petitioner placed before the court that the claim of her seniority and entitlement of provincialisation her service over the respondent No.5 as determinable under the said 2011 Act needs to be determined by this Court and disposal of her said WP(C) No. 5125/2013 by order dated 13.03.2018 amounts to dismissal of the issues involved in said writ petition.

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12) The review petitioner also placed before the Court that in the order dated 13.03.2018 passed in WP(C) No. 5125/2013, the Court did not clarify as to whether the Educational Tribunal shall consider the case of the petitioner under the new provincialisation Act, namely, the Assam Education (Provincialisation of Services and Re-organisation of Educational Institutions) Act, 2017 or shall follow the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, which was in force at the time when she preferred said WP(C) No. 5125/2013.

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13) It is further submitted by the review petitioner that even in the Full Bench Judgment of Abdul Gafur Mandal (supra) the Court observed that in case of a seniority dispute between two claimants which may have bearing on their provincialisation claim, inter se, the Writ Court may intervene in such a case to direct the authorities concerned to re-examine the matter or to issue such directions as may be called for. Petitioner stated that in a given case where the decision of the authority under Section 10 of said 2011 Act was erroneous on the face of the record, the Writ Court should decide the said issue.

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14) Since the disputes still subsist as on date, the petitioner has submitted that the order dated 13.03.2018 passed in her writ petition WP(C) No. 5125/2013, should be reviewed.

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15) In support of her claim, petitioner has placed the Judgment & Order dated 23.07.2018 passed in Writ Appeal No.65/2018 (Md. Fazal Uddin -Vs- State of Assam & Others) and submitted that similar issues as involved in the case of the petitioner in her WP(C) No. 5125/2013 has been considered in a writ proceeding.

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16) The respondent No. 5 has submitted her affidavit in the matter rejecting all claims of the review petitioner. Mr. Mahmud appearing on behalf of the respondent No. 5 submitted that the order dated 13.03.2018 passed in her writ petition WP(C) No. 5125/2013 should not be reviewed, as the petitioner failed to show any error apparent in the said order dated 13.03.2018 and that the review Court shall not act like an Appellate Court and shall not open up the matter again, as the petitioner failed to prefer any appeal against the said order dated 13.03.2018 and that the Writ Court cannot go into the disputed matter while dealing in the review petition. It is also submitted on behalf of the respondent No. 5 that the petitioner failed to show any arbitrariness or irrationality in the order dated 13.03.2018.

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17) Mr. Mahmud on behalf of the respondent No. 5 placed before the Court that Smt. Promila Das, Hindi Teacher of said Bonda Anchalik High School in WP(C) No. 6985/2004 challenged the appointment of the petitioner as Hindi Teacher of that school, wherein she was respondent No. 7 and that the Court by its order dated 18.03.2010 passed in said WP(C) No. 6985/2004 re-instated said Promila Das as the Hindi Teacher of the school in her own position in place of the review petitioner. Mr. Mahmud stated that the review petitioner did not challenge the said order dated 18.03.2010 passed in said WP(C) No. 6985/2004 in any higher forum and that only after said order dated 18.03.2010 passed in said WP(C) No. 6985/2004, the Managing Committee of the school on 26.05.2011 accommodated the review petitioner as Craft Teacher of the School w.e.f. 05.05.2010. Mr. Mahmud stated that the petitioner preferred said WP(C) No. 5125/2013 after three years of said order dated 18.03.2010 passed in WP(C) No. 6985/2004. It is also submitted by Mr. Mahmud that the respondent No. 5 was appointed as the third Assistant Teacher (Arts) in the school after her due selection; whereas the appointment of the petitioner as Hindi Teacher in the school was rejected by the Court in the said order dated 18.03.2010 passed in WP(C) No. 6985/2004. Mr. Mahmud submitted that as settled by the Hon’ble Apex Court, when there are two views in a proceeding, the matter need not be reviewed.

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18) For above reasons Mr. Mahmud submitted that the order dated 13.03.2018 passed in WP(C) No. 5125/2013 does not call for any interference by the Court and the same should not be reviewed, and that this review petition should be dismissed.

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19) Heard the submissions of the parties. Considered the judgment of the Full Bench passed in the case of Abdul Gafur Mandal (supra) as well as the judgment of the Division

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Bench in the case of Md. Fazal Uddin (supra).

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20) It is also noticed that while disposing of petitioner’s said WP(C) No. 5125/2013 by order dated 18.03.2010, some of the issues involved therein remained un-adjudicated and on being enquired about it, Mr. Mahmud, representing the respondent No. 5, had no reply.

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21) After considering the entire aspect of the matter, the Court is of the view that the order dated 18.03.2010 passed in said WP(C) No. 5125/2013, needs to be reviewed for proper adjudication of said WP(C) No. 5125/2013. Accordingly, the order dated 18.03.2010 passed in said WP(C) No. 5125/2013 is hereby recalled and the same is restored to the file. 22) Consequently, this review petition stands allowed.

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JUDGE

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Comparing Assistant

Smt Suchibrata Patowary v. the State of Assam and 6 Ors.

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Smt Suchibrata Patowary v. the State of Assam and 6 Ors.

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