Mazibar Rahman Vs the State of Assam and 7 Ors.

Heard Mr. A Deka, Learned Counsel for the Petitioner. Also heard Ms. H Terangpi, Learned Standing Counsel Counsel, Department of Secondary Education, Assam, appearing for the Respondent Nos. 1, 2, 3 & 5, Ms. M Bhattacharjee, Learned Addl. Senior Government Advocate, appearing for the Respondent No. 4 and Mr. U K Goswami, Learned Counsel appearing for Respondent No. 8.

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As agreed to by the Learned Counsel for the Parties, the present Writ Petition is taken up for disposal at the admission stage.

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The Petitioner, by way of institution of the present Writ Petition, has assailed an order dated 29.07.2024, issued by the Director of Secondary Education, Assam, rejecting the claim of the Petitioner to be senior to the Respondent No. 8, in BBSB High School, Barkhetri. Accordingly, the claim of the Petitioner for being provincialized in his services, was also not considered.

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With a grievance similar to the one, raised in the present Writ

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Petition, the Respondent No. 8 had approached this Court by way of institution of a Writ Petition being WP(C) No. 8264/2019. The Petitioner, herein, also had approached this Court, by way of instituting a Writ Petition being WP(C) No. 8872/2019. A Coordinate Bench of this Court, vide order dated 26.02.2021, considered the issues, arising in the above noted 2 (two) Writ Petitions, analogously.

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After considering the contentions raised by the Parties to the proceedings, the Coordinate Bench of this Court, vide the said order, arrived at a conclusion that serious disputed question of fact was raised in the proceedings, and accordingly, it would be inappropriate for this Court in exercising jurisdiction under Article 226 of the Constitution of India, to go into such disputed questions of fact and accordingly, the matter was remanded to the Director of Secondary Education, Assam, to arrive at a factual determination, with regard to the claims made by the Petitioner, herein, as well as the Respondent No. 8, herein, with regard to the date of their initial engagement, which was disputed in the said proceedings. Accordingly, it was directed that the seniority amongst the Petitioner as well as the

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Respondent No. 8, herein, be so determined.

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It is seen that in pursuance to the passing of the said order dated 26.02.2021, the Director of Secondary Education, Assam, vide the order dated 30.01.2023, had opined that he Petitioner, herein, is senior to the Respondent No. 8. Being aggrieved by the said determination as made by the Director of Secondary Education, Assam, vide the order dated 30.01.2023, the Respondent No. 8, herein, approached this Court, assailing the same by way of instituting Writ Petition, being WP(C) No. 6324/2023. The Petitioner, herein, had also approached this Court by way of instituting a Writ Petition being WP(C) No. 4889/2023. The said 2 (two) Writ Petitions were taken up for consideration analogously by this Court, and, vide order dated 18.06.2024, proceeded to defer the consideration in the matter, on being apprised that the Director of Secondary Education, Assam, was considering the dispute with regard to the inter se seniority in the School, between the Petitioner and the Respondent No. 8, afresh. Thereafter, the Director of Secondary Education, Assam, on a fresh consideration of the matter after providing for an opportunity of hearing to the Petitioner as well

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as Respondent No. 8, herein, had passed the impugned order dated 29.07.2024. Accordingly, vide order dated 07.08.2024, the Writ Petition being WP(C) No. 6324/2023 and WP(C) No. 4889/2023, came to be closed as having become infructuous.

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The Petitioner being aggrieved by the order dated 29.07.2024, passed by the Director of Secondary Education, Assam, has instituted the present Writ Petition.

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The Director of Secondary Education, Assam, basing on the materials coming on record, during the hearing held by her, in the matter, having concluded that both the Respondent No. 8 and the Petitioner, herein, were appointed in the School on 27.11.2004, and both had joined the School on 29.11.2004, proceeded to determine the inter se seniority between the Petitioner and the Respondent No. 8, by reckoning their respective date-of-birth. On reckoning the date-of-birth of the Petitioner as well as the Respondent No. 8, the date-of-birth of the Respondent No. 8 being found to be 01.08.1974, while that of the Petitioner being found to be 01.10.1974, the Respondent No. 8 was held to be senior to the Petitioner, herein. The claim of

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the Petitioner, in the present Writ Petition, is that basing on the working certificates, issued to him, in the matter, he contends that he was working in the said School, w.e.f 08.05.1998.

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This Court has perused the materials brought on record and finds that there was no formal appointment order, issued to the Petitioner for his engagement, w.e.f 1997. Thereafter, the Petitioner is found to have been working against a leave vacancy. It is only w.e.f 27.11.2004, that the Petitioner was appointed formally in the School in question, along with the Respondent No. 8. Accordingly, the determination, as made in the matter by the Director, by reckoning that the Petitioner, as well as Respondent No. 8, had joined the School on the same date, by reckoning the date-of-birth of the Petitioner and the Respondent No. 8, is not found to be erroneous by this Court. Accordingly, the said order dated 29.07.2024, stands affirmed.

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The Director of Secondary Education, Assam, is now directed to process the matter for provincialisation of services of the Respondent No. 8, herein. The said process, as directed to be initiated and be concluded and orders passed towards

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provincialisation of the services of the Respondent No. 8, within

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a period of 2 (Two) months from the date of receipt of a certified copy of this order.

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Having drawn the said conclusions, this Court basing on the prayer of Mr. A Deka, Learned Counsel for the Petitioner provides that it would be open to the Petitioner to approach the jurisdictional Educational Tribunal to establish his right of having been working in the School in question, w.e.f 08.05.1998, after such engagement was approved by the Management Committee of the School. In the event of filing of any such proceeding before the jurisdictional Educational Tribunal, the jurisdictional Educational Tribunal, shall consider the said appeal filed by the Petitioner on its own merits, without being swayed by the conclusions reached either in the order dated 29.07.2024, by the Director of Secondary Education, Assam, and/or in the present order. The provincialisation of the services of the Petitioner, shall be subject to the final determination made in the matter by the jurisdictional Educational Tribunal.

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With the above observations and directions, the present Writ

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Petition stands dismissed. However, there would be no order as

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to costs.

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JUDGE

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Comparing Assistant

Mazibar Rahman v. the State of Assam and 7 Ors.

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Mazibar Rahman v. the State of Assam and 7 Ors.

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