ISMAIL HUSSAIN Vs. TOSTA MOHAN SARKAR AND ORS.

JUDGEMENT

(1.) WE have carefully perused the impugned judgment and other materials on record. We have heard Mr. AY Choudhury, learned counsel for the appellant, and Mrs. A. Hazarika, learned Addl. Senior Government Advocate, Assam, appearing on behalf of the State respondents

(2.) TURNING to the facts and various stages, which have led to the present Writ Application, we noticed that the appellant, Ismail Husain, instituted Title Suit No. 150/1978 at Nagaon seeking decree for, inter alia, a declaration that he stood duly appointed by the Managing Committee of Barbari Milan High School as Headmaster and ex -officio Secretary. Though the learned Munsiff, Nagaon, dismissed the suit by judgment and decree, dated 29.6.1985, the learned Assistant District Judge No. 1, Nagaon, vide judgment and decree, dated 29.3.1986, passed in Title Appeal No. 32/1985, allowed the appeal, decreed the suit and gave a declaration that the present appellant Ismail Hussain was the Headmaster and ex -officio Secretary of the said School. This declaration cannot be construed to mean that the appellant Ismail Hussain shall, is terms of the said decree, be allowed to continue as Headmaster for all time to come nor can this declaration be stretched to mean that even after the said School stood provincialised, the Government would be debarred from appointing a regularly selected Headmaster in terms of the relevant rules. The School was provincialised on 19.11.1991 and on 26.2.1992, the services of the teaching and non -teaching staff of the School were also provincialised. The service of the appellant Ismail Hussain was, however, not provincialised, whereas the service of respondent No. 1 of the present writ appeal, namely, Tosta Mohan Sarkar (whose original appointment in the said School as an Assistant Teacher was 4.6.1979) was provincialised. After provincialisation of the said School, when one Md. Abdus Samad was functioning as its Headmaster, the present appellant, namely, Ismail Hussain instituted Civil Rule 1915/ 1992 claiming that he was entitled to be appointed as Headmaster of the said School. This writ petition was allowed. Aggrieved by this order, Md. Abdus Samad aforementioned (who was functioning as the Headmaster at the relevant time) preferred Writ Appeal No. 46/1993 and a Division Bench of this Court, vide its judgment and order, dated 22.9.1993, disposed of the writ appeal with direction to the present respondent No. 2, namely, Commissioner and Secretary to the Government of Assam, Education Department, to consider the case of the present appellant Ismail Hussain for absorption in a suitable post in the same School with effect from the date of provincialisation keeping in view his qualification and the decree passed in his favour in Title Appeal No. 32/1985 aforementioned. Pursuant to this direction of the Division Bench, the respondent No. 2 passed an order, on 15.5.1996, to the effect that the present appellant, namely, Ismail Hussain (who was respondent No. 4 in Writ Appeal No. 46/1993 aforementioned) be appointed to a post of Classical Teacher of the said School with effect from the date of its provincialisation, i.e. 19.11.1991. Thereafter, the present appellant instituted another writ petition, viz., Civil Rule No. 1157/1997 and by order, dated 17.3.1997, the same was disposed of with a direction to respondent No. 2 to pass orders of the representation, dated 14.8.1996, made by the appellant, Ismail Hussain, with further observation that till disposal of the said representation, no appointment be made to the post of Headmaster of the said School. However, in the meanwhile, the State Level Selection Board had made its recommendation selecting the present respondent No. 1, namely, Tosta Mohan Sarkar as Headmaster of the school, in question, and on 23.4.1998, the Government approved the said recommendation. The respondent No. 1 was accordingly promoted on 20,5.1998, but on the same day, by another order, dated 20.5.1998, the said promotion of respondent No. 1 was cancelled and the present appellant, Ismail Hussain, was appointed as Headmaster -in -charge of the said School in terms of the directions issued in Civil Rule No. 1157/1997 aforementioned.

(3.) IT is not in dispute before us that the present appellant was not included in the select list prepared by the State Level Selection Board at the time, when the Commissioner and Secretary, Education Department, passed the order, dated 20.5.1998, appointing the present appellant, Ismail Hussain, as Headmaster of the said School nor is it in dispute before us, as already indicated above, that the present respondent No. 1, namely, Tosta Mohan Sarkar was the one, who stood regularly selected, for promotion to the post of Headmaster of the School, in question. This being the position, the present appellant could not have been legally appointed as Headmaster of the said School and his representation ought to have been rejected by the Commissioner and Secretary to the Government of Assam, Education Department. The learned Single Judge, therefore, passed the order, dated 29.11.2001, in Writ petition (Civil) 381/1999, quashing the appointment of the present appellant as Headmaster of the said School and also setting aside the order of cancellation of appointment of the present respondent No. 1 as Headmaster of the said School. In other words, by the order, dated 29.11.2001, aforementioned, the learned Single Judge, while cancelling the, present appellant's appointment as Headmaster of the said School, restored the appointment of the present respondent No. 1 as Headmaster of the said School. Aggrieved by this order, the present appellant has come up before this Court in the present appeal.