Allowed

The Governing Body of Barkhetri College v. Lokman Ali and 3 Ors.

Gauhati HC6 Jun 2022I.A.(Civil)/159/2020

Case brief

AI extract

What is this about?

This interim order vacates the interim stay on an advertisement for the post of Principal at Barkhetri College. The court held that the writ petitioner, who claimed to be the regular Principal, was actually provincialised as an Assistant Professor under the Act of 2011, thus defeating his contention to stop the selection process for the Principal post.

What did the court decide?

The interlocutory application seeking vacation of the interim order dated 25.09.2019 is allowed; the interim order is recalled and the restriction on issuing appointment orders is withdrawn.

The Governing Body of Barkhetri College Vs Lokman… — Education and Admissions | Gauhati HC (2022)

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GAHC010237322019

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

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I.A.(Civil)/159/2020

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THE GOVERNING BODY OF BARKHETRI COLLEGE MUKALMUA NALBARI REPRESENTED BY ITS PRESIDENT NAMELY SK. MOBARAQUE HUSSAIN R/O VILL. AND P.O. MUKALMUA DIST. NALBARI ASSAM PIN 781126

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VERSUS

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LOKMAN ALI AND 3 ORS S/O MD. SAYED ALI VILL. GHOGA P.O. LAWTOLA PIN 781126 P.S. MUKALMUA DIST. NALBARI ASSAM.

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2:THE STATE OF ASSAM TO BE REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM EDUCATION (HIGHER DEPTT.) DISPUR GUWAHATI 6 3:THE DIRECTOR OF HIGHER EDUCATION ASSAM KAHILIPARA GUWAHATI 19 4:THE SELECTION COMMITTEE OF BARKHETRI COLLEGE CONSTITUTED FOR THE PURPOSE OF SELECTION OF REGULAR PRINCIPAL

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(TO BE REPRESENTED BY ITS CHAIRMAN CUM VICE CHANCELLOR GAUHATI UNIVERSITY GOPINATH BORDOLOI NAGAR GUWAHATI 14

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-----------Advocate for : MR. B C DAS Advocate for : MR A R BHUYAN appearing for LOKMAN ALI AND 3 ORS

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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06.06.2022

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Heard Mr. BC Das, learned senior counsel for the applicant of IA(C)No.159/2020 and respondent No.3 of WP(C)No.7304/2019. Also heard Mr. AR Bhuyan, learned counsel for the writ petitioner in WP(C)No.7304/2019 and Mr. DK Das, learned counsel for the respondent No.5 Dr. Bhaskar Kalita of WP(C)No.7304/2019 as well as Mr. K Gogoi, learned counsel for the Higher Education Department, Government of Assam.

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By this interlocutory application, the applicant/respondent No.3 seeks for vacating the interim order dated 25.09.2019 passed in WP(C)No.7304/2019. The relevant portion of the order dated 25.09.2019 is extracted as below:

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“Petitioner has prayed for staying the impugned advertisement dated 27.06.2018 for appointment to the post of Principal of Barkhetri College, Mukalmua, Nalbari.

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The case of the petitioner is that as the petitioner is holding the post of Principal on regular basis, the question of holding advertisement does not arise. Be that as it may, that will be considered after hearing the respondents.

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Accordingly, even though the advertisement may proceed, before issuing the

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appointment order, the leave of the Court will be taken.”

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A reading of the order dated 25.09.2019 makes it discernible that the writ petitioner Dr. Lokman Ali sought for a stay of the advertisement dated 27.06.2018 for the post of Principal of Barkhetri College, Mukalmua, in the Nalbari district by raising the issue that he himself was presently holding the post of Principal on a regular basis and, therefore, there cannot remain any question of issuing an advertisement for the same post. Based on the aforesaid submission of the writ petitioner, the interim order was passed that although the selection process pursuant to the advertisement dated 27.06.2018 may continue, but no appointment order be issued without the leave of the Court. In other words, we have to understand that the core contention of the petitioner was that he was the regular Principal of Barkhetri College and it being so, we required the learned counsel for the writ petitioner to point out as to by which order, the petitioner was appointed as the regular Principal of Barkhetri College. In response thereof, Mr. AR Bhuyan, learned counsel for the writ petitioner refers to a communication from the President of the Governing Body of Barkhetri College, Mukalmua, Nalbari dated 04.06.2011 which provided that as per the resolution No.2 of the Governing Body held on 04.06.2011, the writ petitioner had been appointed as the Principal of Barkhetri College.

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It is stated that as on 04.06.2011 when the said communication was made by the Governing Body, the Barkhetri College was a Venture Educational Institution. The teaching and non-teaching staff of Barkhetri College were provincialised under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, the Act of 2011) as per the

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order dated 12.09.2016 of the Director of Higher Education Assam. The said provincialisation admittedly was under the Act of 2011 and, therefore, it has to be construed that it was a deemed provincialisation w.e.f.01.01.2013 as per Section 4 of the Act of 2011. The order of provincialisation makes it discernible that the writ petitioner Dr. Lokman Ali was provincialised as an Assistant Professor in the subject History and not as the regular Principal of the college concerned.

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In view of the aforesaid factual situation, we have to accept that the contention of the writ petitioner that he was the regular Principal of Barkhetri College for the purpose of assailing the advertisement dated 27.06.2018 would be unacceptable in the facts and circumstances of the present case. The interim order restraining any appointment pursuant to the advertisement dated 27.06.2018 was passed on the premises that the writ petitioner Dr. Lokman Ali was the regular Principal of Barkhetri College. As the aforesaid factual depiction gives an indication that the writ petitioner Dr. Lokman Ali was not the regular Principal of Barkhetri College, therefore, we recall the interim order dated 25.09.2019 and also withdraw the restriction as regards issuing any appointment order pursuant to the advertisement dated 27.06.2018.

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At this stage, Mr. AR Bhuyan, learned counsel for the writ petitioner has made a categorical statement that in many other similar situations, where regular Principals were appointed in the Venture Educational Institutions subsequent to the cut off date i.e. 31.12.2010 for the purpose of being included within the definition of ‘employee’ under the Act of 2011, but inspite of it, they were provincialised as regular Principals of the respective colleges, and

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accordingly the petitioner claims parity with such other regular Principals for a claim that the writ petitioner was also legitimately the regular Principal of Barkhetri College. We are not expressing any views on the said claim of the writ petitioner.

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The petitioner would be at liberty to make any representation before the Director of Higher Education Assam raising the said grievance. In the event, any such representation is submitted the Director may pass a reasoned order. But we clarify that we are not expressing any views on the merit or legality of such claim.

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In terms of the above, the interlocutory application stands allowed.

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JUDGE

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Comparing Assistant

The Governing Body of Barkhetri College v. Lokman Ali and 3 Ors.

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The Governing Body of Barkhetri College v. Lokman Ali and 3 Ors.

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