PHANINDRA DUTTA Vs. HARENDRA NATH DAS

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 6.6.1997 passed by the learned Single Judge in Civil Rule No. 2823/ 96 setting aside the order of appointment of the appellant as Subject Teacher in Assamese and directed the Respondents to appoint the Respondent No. 1 in place of the Appellant. The Respondent No.1 was the Petitioner in Civil Rule No. 2823/96 who sought for quashing the Notification dated 25.3.96 (Annexure-7 to the Civil Rule) by which the Director Secondary Education, Assam conveyed the approval of five Subjject Teachers among others as Subject Teacher of the State Government including the name of the Appellant who was arrayed as Respondent No. 5 in the Civil Rule. In addition the Respondent No.1, the Petitioner sought for a further direction on the Respondents/ Authorities to approve the name of the Writ Petitioner (Respondent No.1 hereinafter referred to) as the Subject Teacher in place of the Appellant.

(2.) The Respondent No.1 pleaded inter-alia that coming to know of the facts that the second post of Assamese Subject Teacher was lying vacant in the Swahid Rauta Madan Higher Secondary School (hereinafter referred to as School) he approached the Government for seeking prior approval of the Government for being appointed to the said post. By the Communication dated 19.5.94 the Deputy Secretary to the Government of Assam, Eduction (Secondary) Department forwarded the name of the Respondent No.1 to the Principal, Swahid Rauta Madan H.S. School, Barpeta for taking appropriate action for his appointment as subject teacher. On the strength of the said communication dated 19.5.94 the Principal of the School appointed the Respondent No.1 regularly on 19.5.94 as Subject Teacher in Assamese 11 in the School subject to the approval of the higher authority concerned with the direction to join in the post with immediate effect. Pursuant thereto, the Respondent No. 1 had joined in the Post in the School on 19.5.94. It was further pleaded that the Assistant Inspector of Schools, Barpeta District Circle, Barpeta forwarded the proposal along with necessary documents received from the Principal in the School praying for approval of the appointment of the Respondent No.1 as Subject Teacher in 2nd Assamese post. It was also averred that the Government of Assam took a policy decision for upgrading 82 High Schools into Higher Secondary Schools with the creation of different categories of posts and the School in question was amongst one of those Schools which was decided by the State Government for upgradation in terms of the aforesaid policy decision. On the strength of the said decision the School in question was provincialised as Higher Secondary School and following such upgradation 9 (nine) posts including 2 (two) posts in Subject Teachers in Assamese were allotted to the School by communication dated 12.3.96. On the strength of the above order the Petitioner was working as 2nd Assamese Subject Teacher in the school with the expectation that his name would be approved as a 2nd Assamese Subject Teacher in the School. But to his surprise the Respondent No.5 (appellant herein) was approved as Subject Teacher in Assamese in the School vide a communication dated 25.3.96 (Annexure-7 of the Civil Rules). It was pleaded inter alia that the Appellant was working as an Assistant Teacher in the High School Section and was not at all working as Subject Teacher like the Respondent No.1 in the School. According to the Respondent No.1 the Appellant started to teach at the Higher Secondary Section of the School only after receipt of the letter dated 25.3.96 and the result of the purported order of the Appellant led to the ouster of the service of the Respondent No.1 as Subject Teacher. According to the Respondent No.1 his name was omitted at the last stage and instead of approving his name the appellant who was not even a teacher in the Higher Secondary Section was incorporated by hand strucking off his name by pen. The pleading of the Respondent No. 1 in this respect is extracted below: "The petitioner on learning that instead of his name being approved as a 2nd Subject Teacher of Assamese, the name of Respondent No.5 has been approved made inquiries in the office of the Director of Secondary Education, Assam as to the reasons for omitting his name and instead approving the name of Respondent No.5 who was not even a teacher in the Higher Secondary Section of the School. In the process the Petitioner to his utmost astonishment has learnt that in respect of Swahid Rauta Madan Higher Secondary School in Barpeta District which is indicated against serial No. 34 of the list prepared by the office of the Director of Secondary. Education, just after the name of Vice-Principal, his name was shown as approved with the indication of 19.5.95 as his date of joining but subsequently for some extraneous consideration his name has been struck off by pen and the name of Respondent No.5 Shri Phanindra Dutta has been incorporated by hand in the said document. The name of the Petitioner along with his date of appointment being type written can clearly be made out in the said approval granted in respect of teachers of Swahid Rauta Madan Higher Secondary School and the action appears to be a handi-work of some interested person in the office of the D.S.E. who are working to further the interest of the Respondent No.5 who cannot certainly have a better claim than the Writ Petitioner, who has been working as a Subject Teacher in Higher Secondary level of the School since 19.5.94. Your Petitioner craves leave to produce before this Hon'ble Court a photostat copy of the relevant portion of the approval documents prepared by the office of the D.S.E. indicating the interpolation, at the time of hearing of the present Petition. 'That your Petition humbly states that being a 2nd Subject Teacher appointed to the School as far back as on 19.5.94, and 2 posts having been sanctioned for the School as Assamese Subject Teacher, the name of the Petitioner ought to have been approved by the Director of Secondary Education as a Subject Teachsr in Assamese of the concerned School. But by a process of interpolation the name of the Writ Petitioner has been struck down in the approval list and instead the name of Respondent No.5 who was not even teaching Higher Secondary classes of the School has been inserted in place of the Writ Petitioner arid by and through such process of interpolation, the Respondent authorities are seeking to oust the Petitioner from his service and also his legitimate claim for being appointed to the sanctioned post of Subject Teacher in the said School. The impugned action of the Respondents is wholly unauthorised and illegal and cannot be supported under any circumstances in view of the fact that interpolation and fabrication has been resorted to by the respondent authorities to oust the Petitioner from his service and to bring the respondent No.5 in place of the Writ Petitioner...." The Respondent contested the case and filed their affidavits. Respondent No. 4 and 5 filed joined affidavit and questioned the mannen of appointment of the Writ Petitioner (Respondent No.1) and stated that Writ Petitioner was never served in the School as 2nd Subject Teacher in Assamese at any point of time. The Respondent No. 5 (appellant herein ( pleaded that he was appointed on 1.3.71 as an Asstt. Teacher in the School in undergraduate scale and he availed graduate scale from 12.1.76, which was approved by the Inspector of Schools on 16.7.76 and the service of the Respondent No.5 was confirmed as such on 1.3.88 by the authority. At that time the Respondent No. 5 was graduate and he also passed M.A.. in Assamese on 27.12.93 (sic). The School was provincialised on 2.10.77 and in the first phase the Respondent No.5 along with others became the teachers of the provincialised school and also became the Government servant under Section 3 of the provincialisation Act. The School was declared Higher Secondary School on 9.11.92 without financial benefit and the Respondent No.5 became the Subject Teacher in Assamese on 23.11..92 in the said School. In support of his contention the Respondent No.5 enclosed the service book showing the upgradation of his post with effect from 14.3.93 vide resolution dated 14.3.92 of the Managing Committee. The Managing Committee of the School also requested the authority to appoint as many as 14 teachers in the proposed School and also to forward the said resolution to the authority concerned. The Respondent No. 4, the Principal of the School sent the names of teachers with statements of their particulars, the date of joining, etc. and in the said list 3 names of Assamese Teachers were cited as Assamese Teachers. The following names were sent as Assamese Teachers: 1. Phanindra Dutta, M.A. (Assamess) MIL (Assamese) Respondent No.5 2. Pabitra Kumar Roy (2nd Post) in Assamese. 3. Monoranjan Sarma - 3rd Post in Assamese

(3.) According to the respondents, out of those three nominees, the respondent No.5 and one Monoranjan Sarma, were appointed, as Assamese Teacher in the Higher Secondary School and the name of Sri Pabitra Kumar Roy whose name was also forwarded by the Managing Committee approached the High Court for his redress against appointment of Monoranjan Sarma as the second teacher and moved this Court by way of writ petition which was pending before this High Court. By order dated 25.3.96, the appointment of the appellant (respondent No.5) as well as Mr. Monoranjan Sarma was approved vide communication dated 25.3.96 and both of them were functioning as such in the School. The respondents also stated that the then Principal- in-Charge, Shri Hem Chandra Khataniar who retired on 28.2.96, issued the purported order of appointment in favour of the respondent No. 1 as an Asstt. Teacher in the School after his retirement. The Managing Committee did not allow him to join in the School vide its resolution dated 21.6.94. The State Government did not file any affidavit. The writ petition was ordered for hearing and the learned Single Judge upon hearing the parties and upon considering the available materials on record, found that the respondent No 5 (appellant) was over-aged when the impugned order of appointment on 25.3.96. The learned Single Judge observed that without relaxing the age of the appellant, he could not have been appointed to the post and accordingly, appointment of the appellant as the Subject Teacher was quashed and in his place, respondent No. 1 was ordered to be appointed. However, the learned Court left it open to the authority to consider as to whether there could be any scope of relaxation of age of the respondent (appellant herein) in the facts and circumstances of the case. But under no circumstances, it could be done without relaxing the age of the appellant. Hence the writ appeal.