Partly allowed

Md. Sirajul Islam v. the State of Assam and 6 Ors.

Gauhati HC16 Dec 2021WP(C)/3244/2021

Case brief

AI extract

What is this about?

The single-judge bench held that claims for provincialisation under the Assam Education Act, 2017 must be adjudicated by the Educational Tribunal per Section 19(2). The court declined to vacate an interim stay on the respondent's provincialisation and directed the petitioner to approach the Tribunal.

What did the court decide?

The petitioner relegated to approach the Educational Tribunal. The interim stay order dated 16.07.2021 on the respondent's provincialisation remains in force.

Md. Sirajul Islam Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/13

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GAHC010161282021

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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)/3244/2021

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MD. SIRAJUL ISLAM ASSTT. TEACHER MAHKHUTI ME MADRASSA S/O ABDUL RASHID VILLAGE SUNSERI PO KANDHULIMARI DIST NAGAON ASSAM

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VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GUWAHATI 06 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 3:THE DEPUTY COMMISSIONER NAGAON NAGAON ASSAM 782001 4:DISTRICT ELEMENTARY EDUCATION OFFICER NAGAON NAGAON

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Page No.# 2/13

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ASSAM 782001 5:THE BLOCK ELEMENTARY EDUCATION OFFICER BATADRAVE EDUCATION BLOCK PO AND PS BATADRAVA DIST NAGAON ASSAM 782122 6:THE HEADMASTER MAHKHUTI ME MADRASSA PO KANDHULIMARI DIST NAGAON ASSAM 782123 7:SHAHERA BEGUM W/O NURUL HOQUE VILL. NO. 1 KANDHULIMARI PO KANDHULIMARI MOUZA AND PS DHING DIST NAGAON ASSAM 782123 8:MD. NURUL HOQUE S/O. LT. AKBOR ALI R/O. VILL. NO. 1 KANDHULIMARI P.O. KANDHULIMARI P.S DHING DIST. NAGAON ASSAM PIN-782123. -----------Advocate for : MR. Z HAMMAD Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS

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Linked Case No. : I.A.(Civil)/1779/2021

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SHAHERA BEGUM

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W/O NURUL HOQUE, VILL. NO. 1 KANDHULIMARI, PO KANDHULIMARI, MOUZA AND PS DHING, DIST NAGAON, ASSAM, 78212

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VERSUS

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MD. SIRAJUL ISLAM ASSTT. TEACHER, MAHKHUTI ME MADRASSA, S/O ABDUL RASHID VILLAGE SUNSERI, PO KANDHULIMARI, DIST NAGAON, ASSAM

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2:THE STATE OF ASSAM

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GUWAHATI 06 3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 4:THE DEPUTY COMMISSIONER NAGAON NAGAON ASSAM 782001 5:DISTRICT ELEMENTARY EDUCATION OFFICER NAGAON NAGAON ASSAM 782001

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6:THE BLOCK ELEMENTARY EDUCATION OFFICER

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BATADRAVE EDUCATION BLOCK PO AND PS BATADRAVA DIST NAGAON ASSAM 782122 7:THE HEADMASTER

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MAHKHUTI ME MADRASSA PO KANDHULIMARI DIST NAGAON

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ASSAM 782123 8:MD. NURUL HOQUE S/O-LATE AKBOR ALI R/O VILL-1 NO. KANDHULIMARI P.O-KANDHULIMARI P.S.-DHING PIN-782123 DIST-NAGAON ASSA

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Advocate for the Petitioner : MR. M K SHARMA

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Advocate for the Respondent : SC, ED

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 16.12.2021

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Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. P.K. Borah, learned standing counsel for the Elementary Education Department appearing for respondent nos. 1, 2 and 5, Mr. G. Pegu, learned Government Advocate appearing for respondent no. 3, Ms. D. Borgohain, learned counsel for respondent nos. 6 and 8 and Mr. M.K. Sharma, learned counsel for respondent no. 7.

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As the pleadings has been exchanged between the petitioner and respondent nos. 6 to 8 and the learned standing counsel for the Elementary Education Department is ready with the record, at the instance of the learned counsel for the parties, the entire matter has been heard at the admission stage.

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For the sake of convenience, the parties are referred as per their position in the writ petition.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing the impugned order dated 05.02.2021 issued by the respondent no. 2, by which the service of the respondent no. 7 was provincialised as Assistant Teacher in Mahkhuti ME Madrassa and the petitioner has further prayed for a direction upon the respondent authorities for allowing the petitioner to serve as Assistant Teacher on the basis of seniority with all service benefits and provincialisation of service. This Court, while issuing notice of motion by order dated 16.07.2021, in the interim, was pleased to issue an interim direction upon the respondent authorities to the effect that the further effect of provincialisation be not given to the respondent no. 7, Smt. Shahera Begum until further orders. The respondent no. 7 has filed the interlocutory application for modification/ variation/alteration of the said interim order dated 16.07.2021.

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Bereft of details, the petitioner has broadly projected as follows - (1) the petitioner had been appointed in the Mahkhuti ME Madrassa as per resolution no. 2 dated 17.06.1999 and that he had joined the said school on 20.06.1999; (2) in the inspection carried out by the DEEO (respondent no. 4) on 08.03.2005 and found that petitioner was working, and that in his report, the name of respondent no. 7 does not find place as Assistant Teacher; (3) it is alleged that the respondent no. 7 is the wife of the Headmaster of the School, i.e. respondent no. 8 and therefore, with the help of the then BEEO, the name

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of the respondent no. 7 had appeared in the report of the BEEO (respondent no.5) dated 20.07.2011 regarding teaching and non-teaching staff including left out employees of ME/MEM/LP Schools regarding Financial Assistance 2010-11 notwithstanding that the name of respondent no. 7 did not figure in the acquittance roll for the year 2010-11 and 2011-12; (4) that due to connivance between the respondent no. 7 and 8 and the then officials of the Education (Elementary) Department, the name of the respondent no. 7 also figured in the DISE (i.e. District Information System of Education) Code for the year 2008-09 to 2019-20; (5) however, the respondent no. 7 was a elected Member of the 7 No. Bechamari Zila Parishad, in the district of Nagaon for a period from 23.03.2008 to 20.03.2013, for which it was a condition precedent that the respondent no. 7 could not have served in the said Mahkhuti ME Madrassa, which received grants-in-aid from the State Government; (6) moreover, in the copy of affidavit dated 13.11.2018 which is required to be furnished by candidate along with nomination paper, the respondent no. 7 who had contested the Panchayat Election again in the year 2018 had voluntarily and truthfully declared, amongst others, that she was not enjoying any service of profit under any Government or Govt. undertaking or any educational institution recognized and received grant from the Govt. or any Panchayati Raj Institution; (7) and that although the said school was a venture Madrassa, it was receiving grant-in- aid from time to time; (8) it is also projected that the then BEEO had illegally submitted verified school report directly to the Treasury Officer instead of sending the report to the DEEO, resulting in release of salary/ wages to certain tutors, which included the name of the respondent no. 7, as such, a show cause notice was served upon the then BEEO by the appropriate authority; (9) from a communication dated 22.11.2021 (Annexure-J of affidavit-

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in-reply) by the DEEO (respondent no. 4) to the Director of Elementary Education Officer (respondent no.2), it transpires that the respondent no. 8 had subsequently submitted a false report dated 22.05.2006 by the then DEEO regarding the respondent no. 7 joining the school in the year 1998 otherwise the name of the respondent no. 7 would have appeared in the Inspection Report dated 08.03.2005.

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The case projected by the respondent nos. 6 to 8 is that vide letter dated 13.01.1998, the respondent no. 7 was temporarily appointed as Assistant Teacher of the said school as per resolution no. 5 dated 11.01.1998 and that she had joined service on 20.01.1998. It is an undisputed and admitted position that the respondent no. 7 was on continuous leave from the said school from 15.12.2007 to 31.03.2013 and that during the said period, the respondent no. 7 was discharging her duty as an elected Panchayat Member from 7 No. Bechamari Zila Parishad, in the district of Nagaon. It is claimed that the name of the respondent appeared in the DISE Data of the year 2008-09 to 2019-2020. In this regard, the learned counsel for the respondent no. 7 has further submitted that firstly, there was no challenge to her election on the ground that she was holding an “office of profit” and secondly, there was no challenge to the long leave granted to the petitioner, her joining and restoration of seniority over the petitioner. In this regard, the learned counsel for the respondent nos. 6 and 8 has submitted that as per the provisions of Section 14 of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (hereinafter referred to as “Assam Education Act, 2017” for short), alternative efficacious remedy of filing of appeal has been provided for as such, it is submitted that the writ petition be closed and the petitioner be

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directed to approach the Education Tribunal, which has the jurisdiction and competence to adjudicate disputes which arise in the matter of such disputes relating to provincialisation.

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It is not in dispute that the private respondent no. 8 is holding the post of Headmaster of Mahkhuti ME Madrassa and that the private respondent no.7 is his wife. The office of Headmaster is arrayed as respondent no.6.

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Hearing the learned counsel for the parties. Perused the following – (i) writ petition, (ii) affidavit-in-opposition filed by the respondent nos. 6 and 8, (iii) affidavit-in-opposition filed by the respondent no. 7, (iv) interlocutory application filed by the respondent no. 7, (vi) affidavit-in-opposition in interlocutory application filed by the petitioner, (vii) affidavit-in-reply filed by the respondent no. 7 (viii) records produced by the learned standing counsel for Elementary Education Department.

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It appears that highly disputed questions of facts arise for determination in this case. In this regard, it is seen that the State of Assam has enacted the Assam Educational (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (2017 Act) to provincialise the service of teachers of venture educational institutions and also to reorganize and streamline the educational institutions up-to degree level in the State of Assam.

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Section 24 is the repeal and savings clause. Under Section 24 of

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the 2017 Act, all rules, orders, and notifications issued under the 2011 Act has been repealed. However, it has been clarified that all the teachers whose services were provincialised prior to 23.09.2016 shall continue and their cases shall be reviewed as per the eligibility norms set forth under the 2017 Act.

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Section 19 of the 2017 Act deals with suits and proceedings. Under Section 19(1), no suit, prosecution or other legal proceedings shall lie for anything done in good faith under the 2017 Act, except with the previous sanction of the State Government. Under Sub-section (2), redressal mechanism is provided for adjudication of disputes.

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Section 19(2) of the 2017 Act is extracted hereunder:-

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“(2) To adjudicate disputes for redressal of grievances relating to the teaching staff of the NonGovernment Educational Institution as well as disputes concerning disciplinary action, genuineness of establishment of school and claim for provincialisation in respect of teaching staff of Venture Educational Institution, there shall be an Educational Tribunal for each district within their respective Territorial Jurisdiction. The District and Sessions Judges and the Additional District and Sessions Judges of each District are designated as Educational Tribunal.”

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In view of the provisions contained in Section 19(2), as extracted above, claim of the petitioner for provincialisation is eminently a subject-matter of adjudication before the jurisdictional Educational Tribunal.

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Therefore, by accepting the submissions made by the learned counsel for the respondent nos. 6 and 8 as well as the learned counsel for the

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respondent no. 7, the Court is hereby inclined to relegate the petitioner to approach the jurisdictional Educational Tribunal, which would be the Educational Tribunal at Nagaon. It is provided that in the event the petitioner approaches the jurisdictional Educational Tribunal within 1 (one) month from the date of this order or any prior date when the case is first taken up by the learned Educational Tribunal on judicial side, the interim order dated 16.07.2021, passed by this Court in W.P.(C) No. 3244/2021 that the further effect of provincialisation be not given to the respondent no. 7, Smt. Shahera Begum shall remain in force and thereafter, it shall lapse and the learned Tribunal shall be at liberty to pass any such orders in accordance with law.

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In view of the fact that the respondent no. 7 had filed an interlocutory application for modification/ variation/ alteration of the herein before referred interim order dated 16.07.2021, the Court is inclined to give reasons for not vacating the said interim order of stay.

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It is reiterated at the cost of repetition that in the copy of affidavit dated 13.11.2018 (Annexure-10 of the writ petition), which is required to be furnished by candidate along with nomination paper, the respondent no. 7 who had contested the Panchayat Election again in the year 2018 had voluntarily and truthfully declared, amongst others, that she was not enjoying any service of profit under any Government or Govt. undertaking or any educational institution recognized and received grant from the Govt. (emphasis by Court) or any Panchayati Raj Institution. Contrary to the stand taken in the said affidavit dated 13.11.2018, in paragraph 6 of the interlocutory application, the respondent no. 7 has stated as follows:-

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“That the petitioner begs to state that vide reference No.3233 dated 20.07.2011 the BEEO, Batadraba submitted the repot of teaching and nonteaching staff including dropped employees of ME/MEM/LP Schools regarding grant of financial assistance during the year 2010-11. The name of the petitioner was entered in the said report but she has not received the financial assistance as she was on leave at that time and she requested the authority to grant financial assistance to her.”

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Thus, while in the affidavit, it has been sworn on oath by the respondent no. 7 that she was not enjoying any service of profit in an educational institution recognized and received grant from the Government. The documents annexed to the pleadings by the petitioner, respondent nos. 6 & 8, and respondent no. 7 leaves no room for any doubt that not only the venture Mahkhuti ME Madrassa was recognized by the Education (Elementary) Department of the Government of Assam but the report of teaching and nonteaching staff was submitted from time to time for receiving grants-in-aid.

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In this regard, the importance of an affidavit by a person who participates as a candidate in election cannot be denied. In the case of Resurgence India v. Election Commission of India, AIR 2014 SC 344, the Supreme Court of India had observed as follows:-

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“3. Pursuant to the above order, the Election Commission, vide order dated 28.06.2002, issued certain directions to the candidates to furnish full and complete information in the form of an affidavit, duly sworn before a Magistrate of the First Class, with regard to the matters specified in Association for Democratic Reforms (supra). It was also directed that nonfurnishing of the affidavit by any candidate or furnishing of any wrong or incomplete information or suppression of any material information will result in the rejection of the nomination paper, apart from inviting penal

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consequences under the Indian Penal Code, 1860. It was further clarified that only such information shall be considered to be wrong or incomplete or suppression of material information which is found to be a defect of substantial character by the Returning Officer in the summary inquiry conducted by him at the time of scrutiny of nomination papers.”

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It is not the pleaded case of the respondent no. 7 that her affidavit filed with nomination papers in the 2013 and 2018 Panchayat Election was false, as such, in the absence of anything to the contrary, the Court is inclined to presume that the respondent no. 7 has truthfully stated and sworn in her affidavit dated 13.11.2018 that she was not employed in any educational institution which was recognized and receiving grant from the Government. The plea by the respondent nos. 6 to 8 in this case that the respondent no. 7 was on long leave from 15.12.2007 to 31.03.2013 does not hold water because during the intervening period from 23.03.2008 to 20.03.2013, the respondent no. 7 was an elected member of 7 No. Bechamari Zila Parishad, District Nagaon. The learned counsel for the respondent nos. 6 to 8 has not been able to show anything from service law jurisprudence that if an employee is on long leave, such an employee ceases to be an employee during the leave period. Thus, when in her affidavit dated 13.11.2018, submitted as a candidate for Panchayat Election the respondent no. 7 states on oath that she was not enjoying any service of profit under any Government or Govt. undertaking or any educational institution recognized and received grant from the Govt., such a declaration would be sacrosanct and the respondent no. 7 cannot take a u-turn in this writ petition. Having perused the herein before quoted passage of the judgment rendered by the Supreme Court of India in the case of Resurgence India (supra), in the opinion of the Court, if the contents of affidavit filed along with nomination paper is not taken as sacrosanct, the sanctity of the election process

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would be grossly undermined.

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Hence, in the opinion of the Court, no case is made out by the respondent no. 7 for any modification/ alteration or variance of the interim order dated 16.07.2021.

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Before parting with the records, as the petitioner has been relegated to approach the Educational Tribunal, it is made clear that the observations made herein are only for the purpose of not modifying/ altering/ vacating the order dated 16.07.2021 and to direct the petitioner to avail alternative and efficacious remedy before the Educational Tribunal and thus, none of the observations would constitute a final opinion of the Court on the merit of the respective case of the parties, as such, the Educational Tribunal shall hear and decide the case in its own merit without being influenced by this order.

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Records produced by the learned standing counsel for the Elementary Education Department is returned.

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JUDGE

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Comparing Assistant

Md. Sirajul Islam v. the State of Assam and 6 Ors.

Case brief

What is this about?

What did the court decide?

Md. Sirajul Islam v. the State of Assam and 6 Ors.

Case brief

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What did the court decide?

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