Allowed

MD Askor Ali v. the State of Assam and 8 Ors.

Gauhati HC11 Nov 2022WP(C)/4937/2022

Case brief

AI extract

What is this about?

This judgment quashed a communication stopping tuition payment to an Assistant Teacher whose provincialisation had been previously approved. The court held that no opportunity of hearing was given before passing adverse findings, violating natural justice, and directed the petitioner to receive his salary until a proper adjudication is conducted.

What did the court decide?

Impugned communication stopped to give benefit of provincialisation quashed. Petitioner to be paid salary from June 2022 till further orders.

MD Askor Ali Vs the State of Assam and 8 Ors. — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010143092022

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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)/4937/2022

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MD ASKOR ALI

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S/O LATE KAJIM UDDIN, R/O PURAN SIKATARI, P.O.-TARAKANDI, P.S.KALGACHIA, DIST-BARPETA, ASSAM, PIN-781321

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VERSUS

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THE STATE OF ASSAM AND 8 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI-06

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER BONGAIGAON ASSAM PIN-783380

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4:THE BLOCK ELEMENTARY EDUCATION OFFICER SRIJANGRAM EDUCATIONAL BLOCK ABHAYAPURI DIST-BONGAIGAON ASSAM PIN-783384

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5:THE STATE LEVEL SCRUTINY COMMITTEE REPRESENTED BY THE DIRECTOR OF THE ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19

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6:THE DISTRICT SCRUTINY COMMITTEE BONGAIGAON ASSAM REPRESENTED BY THE DEPUTY COMMISSIONER BONGAIGAON PIN-783380 7:THE TRESURY OFFICER ABHAYAPURI DIST-BONGAIGAON ASSAM PIN-783384 8:MD NASIR UDDIN AHMED S/O ABDUL KHALEK R/O VILL-BAGHEKHAITI P.O.-KUSHBARI P.S.-MERERCHAR DIST-BONGAIGAON ASSAM PIN-783384 9:FATIMA ZINNA D/O LATE MOZIBAR RAHMAN W/O MD. NASIR UDDIN AHMED R/O BAGHEKHAITI P.O.-KUSHBARI P.S.-MERERCHAR DIST-BONGAIGAON ASSAM PIN-78338

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Advocate for the Petitioner : MR. M DUTTA Advocate for the Respondent : SC, ELEM. EDU

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BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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11-11-2022

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Heard Mr. M. Dutta, learned counsel for the petitioner and Mr. B. Kaushik, learned Standing counsel, Elementary Education Department, Assam for the respondent Nos. 1 to 6. Also heard Mr. P. Nayak, learned Standing counsel, Finance Department, Assam for the respondent No. 7.

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The petitioner, the respondent No. 8 and the respondent No. 9 served as Assistant Teachers in Navodaya M.E. Madrassa, Sikatari under Srijangram Education Block, Abhayapuri, district-Bongaigaon since its venture stage.

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On the recommendation of the District Level Scrutiny Committee, Bongaigaon, the State Level Scrutiny Committee approved the service of the petitioner as an Assamese language teacher of said Navodaya venture M.E. Madrassa, Sikatari, district-Bongaigaon for provincialisation of his service under the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of the Educational Institutions) Act, 2017.

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On such approval of the State Government in the Elementary Education Department, the Director of Elementary Education, Assam by order No. EPD-16/ Provn-UP(Act, 2017)/2021/804 dated 05.02.2021 provincialised the service of the petitioner as a Tutor in a fixed salary of Rs. 10,800/-per month and posted him in the Base School, namely, Sikatari Part-2 Lower Primary School, under Srijangram Educational Block of Bongaigaon district.

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One Fatima Zinna, respondent No. 9 was another Assistant Teacher of said Navodaya M.E. Madrassa who preferred a writ petition being WP(C) No. 1229/2021 for not provincialising her service under the said 2017 Act by the State Level Scrutiny Committee. In said WP(C) No. 1229/2021 preferred by said Fatima Zinna, the present petitioner was not a party.

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Pursuant to the direction of the Court dated 26.02.2021 passed in said WP(C) No. 1229/2021, the State Level Scrutiny Committee consisting of three members, i.e., (i) the Director of Elementary Education, Assam; (ii) the Joint Secretary to the Government of Assam in the Elementary Education Department and (iii) the Deputy Director of Elementary Education, Assam in its meeting held on 01.04.2022, considered the case of said Fatima Zinna, petitioner of said WP(C) No. 1229/2021 and found that the District Level Scrutiny Committee, Bongaigaon wrongly considered the case of Askor Ali, the present petitioner as he was the 2nd language teacher in said Navodaya M.E. Madrassa, Sikatari.

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Section 3(1)(xi) of the said 2017 Act provides that –

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“In case of Venture Upper Primary School there shall be minimum three teachers or tutors at least one teacher each for (a) Science and Mathematics (b) Social Studies

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and (c) Languages:

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Provided that for additional posts it shall be considered in accordance with the norms and standard stipulated in the Schedule under sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009.”

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Mr. Kaushik, learned Standing counsel, Elementary Education Department placed a copy of the Minutes of the meeting of the State Level Scrutiny Committee held on 01.04.2022 in the office Chamber of the Director of Elementary Education, Assam before the Court.

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From the said Minutes dated 01.04.2022, it is seen that the State Level Scrutiny Committee after considering the matter directed the District Elementary Education Officer, Bongaigaon to stop the payment of wages immediately in respect of the present petitioner Askor Ali and also directed the authorities in the Sarva Siksha Abhijan, Assam to verify the DISE maintained by NEUPA, New Delhi regarding appearance of the name of said Fatima Zinna in DISE Data upto 2011-12 against said Navodaya M.E. Madrassa and further, directed to place the report of SSA, Assam in the next meeting of the State Level Scrutiny Committee for a decision in the matter of provincialisation of service of said Fatima Zinna subject to fulfillment of all other criteria.

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Pursuant to the said decision of the State Level Scrutiny Committee dated 01.04.2022, the Director of Elementary Education, Assam by his communication under No. EPD/H/170/2022/96 dated 11.05.2022 informed the District Elementary Education Officer, Bongaigaon not to give any effect regarding the benefit of provincialisation in respect of the petitioner Askor Ali, Tutor of Navodaya M.E. Madrassa until further order and accordingly, the salary of the present petitioner was not disbursed since June, 2022.

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Being aggrieved with the said communication of the Director of Elementary Education, Assam dated 11.05.2022, noted above, the petitioner has preferred this writ petition praying amongst others to set aside and quash the said communication under No. EPD/H/170/2022/96 dated 11.05.2022 issued by the DEE, Assam and to allow him to continue and discharge his duties as a Tutor in terms of his provincialisation order dated 05.02.2021.

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From the minutes of the Meeting dated 01.04.2022, it is seen that the decision of the said Committee regarding stoppage of payment of wages in respect of the present petitioner Askor Ali is made without giving him any opportunity of hearing, pursuant to which, the Director of Elementary Education, Assam issued the impugned communication dated 11.05.2022 in violation of natural justice as the petitioner’s service was provincialised in pursuance of an order dated 05.02.2021 passed by the Director of Elementary Education, Assam as a Tutor in said Sikatari Part-2 Lower Primary School of Bongaigaon District on the recommendation of the District Level Scrutiny Committee, Bongaigaon that was approved by the State Level Scrutiny Committee and concurred by the State Government in the Elementary Education Department along with the Finance Department of the State.

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After hearing the parties and considering the entire aspect of the matter, the impugned communication under No. EPD/H/170/2022/96 dated 11.05.2022 issued by the Director of Elementary Education, Assam intimating the District Elementary Education Officer, Bongaigaon, directing not to give the benefit of provincialisation of service of Askor Ali, the present petitioner, as a Tutor in Novodaya M.E. Madrassa, Sikakari, is found to be punitive in nature, which is an adverse finding that was passed in respect of the petitioner without affording him any opportunity of hearing, in violation of the principle of natural justice . As such, the aforesaid communication No. EPD/H/170/2022/96 dated 11.05.2022 of the Director of Elementary Education, Assam being not sustainable in law, is hereby set aside and quashed. Accordingly, any consequential order passed by the authorities concerned shall also stand quashed.

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However, it is made clear that the respondents in the Elementary Education Department while complying with the order dated 26.02.2021 passed in WP(C) No. 1229/2021 comes to a finding that an order against the present petitioner depriving him from provincialisation of his service under the said 2017 and effecting the order No. EPD-16/ Provn-UP(Act, 2017)/2021/804 dated 05.02.2021 issued by the Director of Elementary Education, Assam whereby his service was provincialised and was posted as a Tutor in the Base School, Sikatari Part-2 Lower Primary School under Srijangram Education Block of Bongaigaon district in a fixed salary of Rs. 10,800/-per month is required to be passed, in that circumstance, the respondent authorities concerned in the Elementary Education Department without giving an

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opportunity of hearing to the petitioner, shall not take any adverse/punitive action against him.

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Since the communication under No. EPD/H/170/2022/96 dated 11.05.2022 of the Director of Elementary Education, Assam to the District Elementary Education Officer, Bongaigaon has now been set aside and quashed, therefore, the petitioner shall be paid his salary for the months he served and continues to serve as a Tutor in said Sikatari Part-2 LP School under Srijangram Educational Block in the district of Bongaigaon, as per his entitlement, till provincialisation of his service vide Order No. EPD-16/Provn-UP(Act, 2017)/2021/804 dated 05.02.2021 issued by the Director of Elementary Education, Assam, noted above, remains in force.

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Petitioner shall submit a certified copy of this order along with copy of the present writ petition including the annexures appended thereto before the Director of Elementary Education, Assam as well as the District Elementary Education Officer, Bongaigaon on or before 25.11.2022 obtaining necessary acknowledgement from them in that regard.

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Copy of the Minutes of the State Level Scrutiny Committee dated 01.04.2022 placed before the Court today by Mr. Kaushik, learned Standing counsel, Elementary Education Department, Assam, be kept as a part of the record.

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

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JUDGE

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Comparing Assistant

MD Askor Ali v. the State of Assam and 8 Ors.

Case brief

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MD Askor Ali v. the State of Assam and 8 Ors.

Case brief

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