Disposed

Farook Rahman Khan v. the State of Assam and 6 Ors.

Gauhati HC6 May 2022WP(C)/708/2021

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging an injunction against the petitioner\'s provincialisation, holding that a factual dispute on service entitlement between the petitioner and another candidate requires adjudication by the Education Tribunal, which directed to do so expeditiously.

What did the court decide?

Writ petition disposed of without interference; direction to Education Tribunal to decide dispute within two months; interim order dated 30.01.2021 retained; earlier interim order vacated.

Farook Rahman Khan Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2022)

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GAHC010019542021

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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)/708/2021

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FAROOK RAHMAN KHAN S/O RAJAB ALI KHAN

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RESIDENT OF VILLAGE PACHIM GOROIMARI, PO LAHARIGHAT, DIST MORIGAON, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 6 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION DEPARTMENT (SECONDARY) EDUCATION, DISPUR GUWAHATI 6

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 (MEMBER SECRETARY STATE SELECTION BOARD )

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3:THE LEARNED EDUCATIONAL TRIBUNAL MORIGAON MORIGAON ASSAM

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4:THE DISTRICT SCRUTINY COMMITTEE REPRESENTED BY THE CHAIRMAN CUM DEPUTY COMMISSIONER MORIGAON ASSAM

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5:THE GOVERNING BODY OF NAGABANDHA JUNIOR COLLEGE REPRESENTED BY ITS PRESIDENT C/O THE PRINCIPAL NAGABANDHA JUNIOR COLLEGE PO MORIGAON

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DIST MORIGAON ASSAM 782106

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6:THE PRINCIPAL NAGABANDHA JUNIOR COLLEGE PO MORIGAON DIST MORIGAON ASSAM 782106

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7:SRI BAHARUL ISLAM S/O LATE SIRAJUL ISLAM

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RESIDENT OF VILLAGE BATABARI PO SONARIGAON DIST MORIGAON ASSA

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Advocate for the Petitioner : MR N DUTTA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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ORDER

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06.05.2022

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Heard Mr. ABT Hoque, learned counsel for the petitioner. Also heard Mr. R Majumdar, learned counsel for the respondents No. 1 and 2 being the authorities under the Secondary Education Department, Government of Assam, Mr. G Bokilial, learned counsel for the respondent No.4 being the Deputy Commissioner, Morigaon and Mr. MA Sheikh, learned counsel for the respondent No.7. The respondent No.3 being the Education Tribunal Morigaon stands deleted from the array of respondents.

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Considering the nature of the order proposed to be passed, notice is not

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required to be issued to the respondents No.5 and 6 being the authorities under the Nagabandha Junior College, Morigaon.

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The writ petitioner Md. Farook Rahman Khan was initially appointed as a Lecturer in the Department of English on 24.06.2006 against the first post of Lecturer in the Nagabandha Junior College, Morigaon. On 25.01.2011, the petitioner submitted his resignation to the In-charge Principal of the college and contested the Assembly Election of 2011. The said application for resignation of the petitioner was received by the In-charge Principal of the college and then placed before the Governing Body and the Governing Body forwarded the same by the resolution dated 18.06.2011 to the departmental higher authorities for necessary order. As per the knowledge of the petitioner, the said resignation letter was not accepted by the authorities as required under the law. Accordingly, the petitioner returned back to the college and submitted an application for regularizing his post, but the Governing Body did not pass any resolution therein. Since then the petitioner is again discharging his duties from the date of his re-joining and had also instituted WP(C)No.958/2012 for regularizing his services in the Nagabandha Junior College, Morigaon. As the Nagabandha Junior College, Morigaon was at a venture stage, therefore, the said writ petition was closed by giving liberty to the petitioner to pursue his legal remedy as may be available under the law.

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Be that as it may, the Governing Body of Nagabandha Junior College, Morigaon passed a resolution on 20.12.2012 allowing the petitioner to continue as Lecturer of English against the first post in the Nagabandha Junior College, Morigaon and thereafter by the order dated 22.12.2012 an order was passed

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regularizing his services as such.

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In the aforesaid circumstances, the authorities of the Nagabandha Junior College, Morigaon had forwarded the name of the writ petitioner Md. Farook Rahman Khan as the first Lecturer in the Department of English for the purpose of provincialisation under the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (for short, the Act of 2017). From the materials available on record, it would be discernible that the said recommendation had not been given a consideration by the District Scrutiny Committee (for short, the DSC) Morigaon. In the meantime, the respondent No.7 Baharul Islam instituted WP(C)No.995/2019 for interfering with the proposal of the college authorities to provincialise the writ petitioner as the Lecturer in English against the first post in the Nagabandha Junior College, Morigaon . By the order dated 06.08.2020, WP(C)No.995/2019 was given a final consideration wherein a conclusion was arrived that the dispute between the petitioner and the respondent No.7 pertains to their service entitlement in the Nagabandha Junior College at a stage when the said institution was still at the venture stage. Accordingly, by following the proposition of law laid down in Abdul Gofur Mondal Vs. State of Assam & Ors., reported in 2015(2)GLT 337, the respondent No.7 was required to approach the Education Tribunal at Morigaon for an adjudication as regards the dispute between the writ petitioner and the respondent No.7 as to who between the two would be the Lecturer in the Department of English against the first post of Lecturer, in the Nagabandha Junior College, Morigaon, particularly, keeping in mind the intervening circumstance where the petitioner had once resigned from his service for the purpose of contesting in some Assembly Election and thereafter returned back

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and whether the legal right of the petitioner to resume his duties as per his original appointment would still persist.

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We have also been told that the Education Tribunal also follows the procedure under the Code of Civil Procedure for its adjudication. Without expressing any view as to what procedure is required to be followed by the Education Tribunal and by taking note that for the purpose in another appropriate proceeding notice has already been issued to the authorities on the issue as to what procedure is to be adopted, we allow the Tribunal to follow the said procedure till such adjudication is arrived at and if the Tribunal is following the procedure prescribed under the CPC to decide the matter before it, provided, the procedure is made equally applicable to both the parties in the proceeding. However, granting liberty to the Tribunal to follow the procedure prescribed under the CPC should not be construed that this is an adjudication by this Court that the procedure under CPC has to be followed by the Tribunal and what is provided in this order be not construed to be a precedent.

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Before the Tribunal, in Misc. Case No.8/2020, an order dated 30.01.2021 was passed by which an injunction was granted restraining the Government Authorities from provincialising the services of the writ petitioner Md. Farook Rahman Khan to the 1st post of Lecturer in the Department of English in the Nagabandha Junior College till disposal of the dispute by the Education Tribunal in Education Tribunal Petition No.1/2020. The Tribunal while passing the said order of injunction had arrived at its conclusion that there is a prima facie case to be determined by the Tribunal and further was also of the view that the balance of convenience is in favour of passing an injunction order inasmuch as, if the said order is not passed and the one post in the Department of English in

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the Nagabandha Junior College is filled up, the respondent No.7 Baharul Islam may suffer an irreparable loss which cannot be subsequently rectified. The order of injunction is assailed in this writ petition.

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In this writ petition, it is the submission of Mr. ABT Haque, learned counsel for the petitioner that in the facts and circumstances of the present case, it is the writ petitioner who has the legal right to be recommended as the Lecturer in the Department of English against the first post in the Nagabandha Junior College and therefore, his case be recommended for the purpose of provincialisation.

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In the aforesaid circumstances, we are of the view that it is clearly a factual dispute between the writ petitioner and the respondent No.7 as to who between the two should be construed to be the Lecturer in English against the first post in the Nagabandha Junior College, more particularly, inasmuch as, the effect of intervening event of the petitioner resigning from service and thereafter re-joining in service requires a judicial consideration. Without such judicial consideration, it would be inappropriate for this Court to accept that it is the writ petitioner who has the legal right to be construed to be the Lecturer in English in the Nagabandha Junior College against the first post.

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Accordingly, we are of the view that instead of issuing notice in this writ petition, more particularly, when the writ petition has remained pending for more than a year without any notice being issued and in a circumstance where an interim order was passed on 02.12.2021 it would be appropriate for the

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Education Tribunal at Morigaon to adjudicate the dispute between the parties and to do it expeditiously within a prescribed time limit. Issuance of notice in this writ petition and continuing with the interim order staying the proceeding before the Tribunal would not serve the cause either of the writ petitioner or of the respondent No.7 and in fact, on the other hand, it would be the students of the college, in question, who would suffer because of such interim order being continued.

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Accordingly, this writ petition stands disposed of by requesting the learned Education Tribunal at Morigaon to decide the dispute raised in Education Tribunal Petition No.1/2020 preferably within a period of two months from the date of receipt of a certified copy of this order and till such decision is arrived at, the interim order dated 30.01.2021 passed in Misc.(J) Case No.08/2020 shall be retained. Both the writ petitioner and the respondent No.7 are directed to cooperate in the proceeding before the learned Education Tribunal so that an earlier adjudication can be arrived at.

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Interim order passed in this writ petition on 12.02.2021 stands vacated.

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However, we clarify that we have not observed anything on merit either on the claim of the writ petitioner nor on the claim of the respondent No.7 and it would be for the Tribunal to arrive at its own conclusion depending on the materials that may be produced before it by the parties.

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We further clarify that in the earlier writ petition being

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WP(C)No.958/2012, this Court by the order dated 28.02.2012 had required the writ petitioner Md. Farook Rahman Khan to approach the Education Tribunal and it should not be construed that the claim of the writ petitioner was dismissed on merit by the said order.

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The writ petition stands disposed of in the above terms.

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JUDGE

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Comparing Assistant

Farook Rahman Khan v. the State of Assam and 6 Ors.

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Farook Rahman Khan v. the State of Assam and 6 Ors.

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