IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Writ Petition (C) No. 4612 of 2011 1) Abdul Gofur Mondal, Son of Late Nalu Mondal Village Boyzeralga part-iv, P.O- Nayeralga P.S- Bilasipara, District- Dhubri, Assam.... Petitioner - Versus 1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-6. 2) The Director of Elementary Education, Assam, Kahilipara,Guwahati-19. 3) The District Elementary Education Officer, Dhubri Assam, P.O & P.S- Dhubri, Dist- Dhubri, Assam Pin-783301 4) The Block Elementary Education Officer, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 5) The Deputy Inspector of Schools, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 6) Hakim Uddin Ahmed, the Secretary cum Head Master, Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, District- Dhubri, Assam, Pin-783348. 7) The President of Jana Kalyan VLP School, Village- Boyzeralga part-iv, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin -783348 8) Abul Kalam Azad, son of Esar Uddin, A/T Jana Kalyan VLP School, Vill- Boyzeralga part-iv P.O-Nayeralga, P.S- Bilasipara, Dist- Dhubri Assam, Pin-783348. WP(C) No. 4612 of 11 & others Page 1 of 20
9) Foriz Uddin Ahmed, C/o Hakim Uddin Ahmed A/T Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin-783348.... Respondents Writ Petition (C) No. 6109 of 2012 1) Abdul Gofur Mondal, Son of Late Nalu Mondal Village Boyzeralga part-iv, P.O- Nayeralga P.S- Bilasipara, District- Dhubri, Assam.... Petitioner - Versus 1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-6. 2) The Director of Elementary Education, Assam, Kahilipara,Guwahati-19. 3) The District Elementary Education Officer, Dhubri Assam, P.O & P.S- Dhubri, Dist- Dhubri, Assam Pin-783301 4) The Block Elementary Education Officer, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 5) The Deputy Inspector of Schools, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 6) Hakim Uddin Ahmed, the Secretary cum Head Master, Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, District- Dhubri, Assam, Pin-783348. 7) The President of Jana Kalyan VLP School, Village- Boyzeralga part-iv, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin -783348. WP(C) No. 4612 of 11 & others Page 2 of 20
8) Abul Kalam Azad, son of Esar Uddin, A/T Jana Kalyan VLP School, Vill- Boyzeralga part-iv P.O-Nayeralga, P.S- Bilasipara, Dist- Dhubri Assam, Pin-783348. 9) Foriz Uddin Ahmed, C/o Hakim Uddin Ahmed A/T Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin-783348. 10) The Deputy Commissioner, Dhubri, Assam Pin-783301. 11) The Assam Sarba Siksha Abhijan Mission, represented by the Mission Director, SSA, Assam, Kahilipara, Guwahati-19. 12) The District Mission Co-ordinator, SSA, Dhubri, Assam. 13) The Block Mission Co-ordinator, SSA, Bilasipara, P.S- Bilasipara, District- Dhubri, Assam.... Respondents Writ Petition (C) No. 6590 of 2014 1) Abdul Gofur Mondal, Son of Late Nalu Mondal Village Boyzeralga part-iv, P.O- Nayeralga P.S- Bilasipara, District- Dhubri, Assam.... Petitioner - Versus 1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department-cum- Chairman, State Scrutiny Committee, Dispur, Guwahati-6. 2) The Director of Elementary Education, Assam, Kahilipara,Guwahati-19. WP(C) No. 4612 of 11 & others Page 3 of 20
3) The District Elementary Education Officer, Dhubri Assam, P.O & P.S- Dhubri, Dist- Dhubri, Assam Pin-783301. 4) The Block Elementary Education Officer, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 5) The Deputy Inspector of Schools, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 6) Hakim Uddin Ahmed, the Secretary cum Head Master, Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, District- Dhubri, Assam, Pin-783348. 7) The President of Jana Kalyan VLP School, Village- Boyzeralga part-iv, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin -783348 8) Abul Kalam Azad, son of Esar Uddin, A/T Jana Kalyan VLP School, Vill- Boyzeralga part-iv P.O-Nayeralga, P.S- Bilasipara, Dist- Dhubri Assam, Pin-783348. 9) Foriz Uddin Ahmed, C/o Hakim Uddin Ahmed A/T Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin-783348. 10) The Deputy Commissioner, Dhubri-cum- Chairman, District Scrutiny Committee, Dhubri, Assam Pin-783301. 11) The Assam Sarba Siksha Abhijan Mission, represented by the Mission Director, SSA, Assam, Kahilipara, Guwahati-19. 12) The District Mission Co-ordinator, SSA, Dhubri, Assam, Pin- 783301. WP(C) No. 4612 of 11 & others Page 4 of 20
13) The Block Mission Co-ordinator, SSA, Bilasipara, P.S- Bilasipara, District- Dhubri, Assam.... Respondents Writ Petition (C) No. 2272 of 2013 1) Abdul Gofur Mondal, Son of Late Nalu Mondal Village Boyzeralga part-iv, P.O- Nayeralga P.S- Bilasipara, District- Dhubri, Assam.... Petitioner - Versus 1) The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati-6. 2) The Director of Elementary Education, Assam, Kahilipara,Guwahati-19. 3) The District Elementary Education Officer, Dhubri Assam, P.O & P.S- Dhubri, Dist- Dhubri, Assam Pin-783301 4) The Block Elementary Education Officer, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 5) The Deputy Inspector of Schools, Bilasipara, P.O & P.S- Bilasipara, Dist- Dhubri, Assam. 6) Hakim Uddin Ahmed, the Secretary cum Head Master, Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, District- Dhubri, Assam, Pin-783348. 7) The President of Jana Kalyan VLP School, Village- Boyzeralga part-iv, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin -783348 8) Abul Kalam Azad, son of Esar Uddin, A/T Jana Kalyan VLP School, Vill- Boyzeralga part-iv P.O-Nayeralga, P.S- Bilasipara, Dist- Dhubri WP(C) No. 4612 of 11 & others Page 5 of 20
Assam, Pin-783348. 9) Foriz Uddin Ahmed, C/o Hakim Uddin Ahmed A/T Jana Kalyan VLP School, Vill- Boyzeralga Part-IV, P.O- Nayeralga, P.S- Bilasipara, Dist- Dhubri, Assam, Pin-783348. 10) The Deputy Commissioner, Dhubri, Assam Pin-783301. 11) The Assam Sarba Siksha Abhijan Mission, represented by the Mission Director, SSA, Assam, Kahilipara, Guwahati-19. 12) The District Mission Co-ordinator, SSA, Dhubri, Assam. 13) The Block Mission Co-ordinator, SSA, Bilasipara, P.S- Bilasipara, District- Dhubri, Assam.... Respondents B E F O R E HON BLE MR. JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING) For the petitioner: Mr. M.U. Mondal, Mr. H.R. Ahmed, Advocates For the respondents: Mr. R.Mazumdar, Standing Counsel Elementary Education Dept. Mr. U.K. Nair, Mr. D.A. Kaiyum, Advocates Date of Hearing : 17-09-2015 Date of Judgment: 03-12-2015 JUDGMENT & ORDER (CAV) This bunch of writ petitions, involving the same parties and are also inter-connected (or overlapping?) with each other, were heard together and are now being disposed of by this common judgment. WP(C) No. 4612 of 11 & others Page 6 of 20
2. The reliefs claimed in W.P.(C) No. 4612 of 2011 are to prepare the gradation list of Assistant Teachers of Jana Kalyan VLP School by treating the petitioner as the senior-most among them after setting aside the existing list submitted by the Head Teacher of the School and direct the respondent authorities to provincialize the service of the petitioner as the 1 st Assistant Teacher of the School. In W.P.(C) No. 6109 of 2012, the reliefs claimed therein are to quash the DISE Data for the period 2010-2011 in respect of the staffing pattern of the School and update the DISE Data by including the name of the petitioner as the 1 st Assistant Teacher of the School. In W.P.(C) No. 2272 of 2013, the reliefs claimed are to set aside the Resolution No. 1 dated 5-8-2008 resolving to appoint the respondent No. 8 (Abdul Kalam Azad) as Assistant Teacher of the School and the consequential order dated 20-6-2008 appointing the respondent No. 8 in his place and quash the list of Assistant Teachers at Annexure-8 including the name of the respondent No. 8 in his place and direct the respondent authorities to provincialize the service of the petitioner. The reliefs claimed in WP(C) No. 6590 of 2014 are to set aside the recommendation of the District Scrutiny Committee, Dhubri dated 13-12-2012 for provincializing the services of the respondent No. 6 and 8 and the consequential order dated 19-9-2013 provincializing the services of the respondent No. 6 and 8 as the Assistant Teachers of the Schols.. 3. The case of the petitioner is that the School under the name of Jana Kalayan VLP School ( the School for short) was established on 1-1-1987 with his name shown as its founder Assistant Teacher as evident from the list of schools under 26 Bilasipara West LAC (Annexure-1) and the particulars of VLP schools for the year 2010 (Annexure-2). In the year 2010, he filed an application under the Right to Information Act, 2005 to the Sub- Divisional Officer (Civil), Bilasipara requesting him to furnish him information about the number of teachers, number of students, the proceedings of the Managing Committee of the school and the inspection note of the school authority to the School. But no such information has been supplied to him till now though he was driven to move from pillar to post to obtain such information. In the meantime, the respondent No. 6 submitted the particulars of the School for financial assistance by showing the name of WP(C) No. 4612 of 11 & others Page 7 of 20
the respondent No. 8, who was appointed only in 2010, as the Assistant Teacher of the School by dropping the name of the petitioner. The petitioner thereupon lodged a complaint with the respondent No. 2 on 6-1-2011 in connection therewith by stating that he has been working as the Assistant Teacher of the School since 1987, but no action has been taken by him till now. According to the petitioner, the respondent No. 8 was appointed as Assistant Teacher of the School on 10-3-2008, whereas he has been working as such since 1987. His name was reflected in the inspection note from 1987 to 2010 so much so that he is entitled to be treated as the 1 st Assistant Teacher: the respondent No. 8 and 9 should be treated as the 2 nd and 3 rd Assistant Teacher. It is the service of the petitioner, according to the petitioner, which should have been provincialized as the Assistant Teacher of the School, and the gradation list of the teaching staff should have been prepared in order of seniority to that effect. It is the case of the petitioner that being the founder teacher of the School, he had donated 50,000/- for construction of the building and other infrastructures of the School. 4. In the meantime, he has become overage, and unless his service is provincialized, there is no prospect for him to get other public employment at his age. The School has been provided with financial assistance by the State Government while the Managing Committee is constituted with the approval of the concerned Block Elementary Education Officer. The School is a State within the meaning of Article 12 of the Constitution and is, therefore, amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The representation dated 6-1-2011 filed by the petitioner before the respondent No. 2 is still pending but no tangible result has come out till now, which prompted him to file this writ petition for redressal of his grievance. While this writ petition was pending, in the month of December, 2011, the Block Elementary Education Officer, Bilasipara (to be called the respondent No. 4 hereafter ) and the Head Master and Secretary of the School (to be referred to as the respondent No. 6 hereafter) have included the name of the respondent No. 8 and one other teacher in the DISE Data for the School in the staff pattern by showing them to be the 1 st and 2 nd Assistant Teacher of the School w.e.f. 10-3-2008 and 10-3-2010 respectively. According to the petitioner, his name had already WP(C) No. 4612 of 11 & others Page 8 of 20
been included in the DISE data of 2010. Apprehending that the said respondents were being considered for provincialization, the second writ petition being WP(C) No. 6109 of 2012 was filed by the petitioner for not provincializing the services of the said respondents. 5. This Court by the interim order dated 17-12-2012 directed that no Government grant or service benefits should be conferred upon the said respondents by disregarding the petitioner as the serving Assistant Teacher of the School since 1-1-1987 till the next returnable date. The case of the petitioner all along has been that he had been working as the founder Assistant Teacher of the School since 1-1-1987 and that his name had also been included in the DISE data w.e.f. 2004 to 2010. However, on 4-4-2013 and 8-4-2013, when the respondent No. 6 and the private respondents filed Misc. Case No. 948 of 2013 for vacating the interim order dated 17-12-2012 obtained by the petitioner in WP(C) No. 6109/12, he discovered the existence of the resolution dated 5-6-2008 of the SMC terminating his service and of the letter dated 20-6-2008 appointing the respondent No. 8 as the Assistant Teacher in his place in terms of the resolution dated 1. This, according to the petitioner, is in gross violation of Section 4 of the Assam Venture Educational Institution (Provincialization of Services) Act, 2011 and Section 15(2) of the Assam Non-Government Educational Institution (Regulation and Management) Act, 2006 as no opportunity of hearing was given to him. This then prompted him to file the third writ petition being WP(C) No. 2272 of 2013. This Court, while issuing notice of motion, passed the interim order dated 2-5-2013 restraining the respondent authorities from provincializing the service of the respondent No. 8 (Abul Kalam Azad). According to the petitioner, despite the stay orders of this Court in WP(C) No. 6109/12 and WP(C) No. 2272/13, the respondent authorities provincialized the service of the respondent No. 8 during the pendency of those cases. It is contended by the petitioner that such action is in contravention of Section 24(2) of Right of Children to Free and Compulsory Education Act, 2009, Rule 20 of the Assam Right of Children to free and Compulsory Education Rules, 2011, Section 15(2) of Assam Non- Government Educational Institutions (Regulation and Management) Act, 2006 and Sections 2, 3, 4 and 10 of the Assam Venture Educational WP(C) No. 4612 of 11 & others Page 9 of 20
Institutions (Provincialization of Services) Act, 2011. Aggrieved by this, the petitioner is initiating this fourth round of litigation seeking the intervention of this Court. 6. The writ petition is contested by all the respondents, but only the Head Teacher/Member Secretary of the School (respondent 6/7) and the respondent No. 8 chose to file their respective affidavits. According to the respondent No. 6/7, though the School was established on 1-1-1987, there was no Assistant Teacher for the School till 1991. The School Management Committee (SMC), however, by the resolution dated 30-7-1992 appointed one Jahura Khatun as the 1 st Assistant Teacher of the School, but she was removed from the post by the SMC on 2-6-1999 due to her regular absence from school whereupon the petitioner was appointed on 1-7-1999 as the Assistant Teacher of the School till 4-6-2008 without issuing formal appointment order to him. However, from 1-7-1999 to 4-6-2008, the petitioner did not attend the School regularly despite repeated warnings made by the SMC through resolutions whereafter they adopted the resolution dated 5-6-2008 dismissing him from service. They, therefore, deny that the petitioner was the founder-teacher of the School, and question the genuineness of the list of VLP Schools of 2010 produced by the petitioner, which they claim to be a fabricated document. It is asserted by the answering respondents that they have already supplied the necessary documents to the petitioner. As there was no formal appointment order issued to the petitioner, and his service stood terminated on 4-6-2008, there is no inspection note showing his name prior to 1999 and after 2008. The respondent No. 8 was appointed by the SMC as Assistant Teacher of the School in terms of the resolution dated 20-6-2008 by replacing the petitioner: the respondent No. 8 is till now serving as the Assistant Teacher of the School to the full satisfaction of the SMC. There is no question of submitting the particulars of the petitioner for financial assistance as he was no longer in their service as Assistant Teacher of the School: it was the particulars of the respondent No. 8 which were submitted before the competent authority for provincialization of his service. The answering respondents deny the receipt of 50,000/- as donation to the School at any point of time and assert that the School ever received financial assistance or WP(C) No. 4612 of 11 & others Page 10 of 20
grant from the Government till date. In the inspection notes of the departmental officer dated 27-6-2008, 19-6-2010 and 5-12-2012, the names of the respondent No. 6 as the Head Teacher and the respondent No. 8 as the Assistant Teacher of the School were reflected to that effect: so are their names so reflected in the DISE Code for the years, 2010-2011, 2011-2012 and 2012-2013, and this was how the application forms for provincialization of the services of employees of the School was filled up. There is no merit in this writ petition inasmuch as the petitioner is claiming seniority in the School where he no longer serves and also when he is not challenging the resolutions dated 5-6-2008 and dated 20-6-2008 dismissing him from service. It is also submitted by the answering respondents that there is no question of submitting the particulars of the petitioner for provincializing his service since he is no longer in service as Assistant Teacher of the School. According to them, they have rightly submitted the particulars of the private respondents for provincialization of their services and deny the allegation of the petitioner that they accepted 2,00,000/- from the respondent No. 8. 7. The answering respondents question the very maintainability of WP(C) No. 6109 of 2012 challenging the inclusion of the names of the private respondents in the DISE Data without challenging the resolution dated 5-6-2008 and dated 20-6-2008 appointing the respondent No. 8 in place of the petitioner. In WP(C) No. 2272 of 2013, the respondent No. 8 (Abul Kalam Azad) has raised preliminary objection regarding the maintainability of the writ petition on the ground that the School is merely a privately managed school, is not an authority within the meaning of Article 12 of the Constitution and is not amenable to the writ jurisdiction of this Court as held by the Division Bench of this Court in its order dated 28-7- 2010 in Writ Appeal No. 227/10. He also raises preliminary objection on the maintainability of the writ petition on the ground that an alternative remedy for redressing the grievances of the petitioner is now available with Grievance Redressal Committee both at the State and District Level in terms of the notification No. ELC/WP(C) 5028/554/17, dated 30-1-2013 issued by the State Government. The writ petition is, therefore, liable to be dismissed for not availing of the equally efficacious alternative remedy available to him. In his additional affidavit, the respondent No. 8 also points out that he has WP(C) No. 4612 of 11 & others Page 11 of 20
come learn that the petitioner had instituted Title Suit No. 9 of 2011 before the Court of Munsiff, Bilasipara challenging the termination of his service from the post of Assistant Teacher of the School. The suit was, however, dismissed by the learned Munsiff on 3-7-2012, but no appeal or revision was preferred by him from the order of dismissal. The petitioner has conveniently suppressed this vital fact and this writ petition is liable for dismissal for suppression of this vital fact. Moreover, the writ petition is barred by the principle of res judicata in view of the dismissal of T.S. No. 9/11, which is a matter directly and substantially in issue between the same parties in this writ petition. In so far as WP(C) No. 6590 of 2014 is concerned, no counter-affidavit is filed by any of the respondents. 8. It is the contention of Mr. M.U. Mondal, the learned counsel for the petitioner that the petitioner had never been aware of the existence of the resolution and of the order terminating his service till the time Misc. Case No. 948 of 2013 was filed by the respondents for vacating interim order dated 17-12-2012 obtained by him in WP(C) No. 6109/13 and that he had to file another writ petition i.e. WP(C) No. 2272/13 to challenge the legality of such resolution and the order dismissing him from service. According to the learned counsel, the petitioner was never issued or was served with such termination order at any time, and any order having adverse effect merely retained in file and never communicated can have no force and is non-est: no reliance can be placed on the same even to assert a claim based on its content. That apart, the provisions of RTE Act and the rules made thereunder as well as the Assam Non-Government Educational Institution (Regulation and Management) Act, 2006 mandates affording reasonable opportunity of hearing to an employee before he is removed from service by way of dismissal or termination of service; any removal order made in violation of such statutory mandate cannot be sustained in law. The fact that the petitioner continued to serve as the Assistant Teacher of the School is demonstrated by the particulars of VLP School for the year 2010 wherein the District Elementary Education Officer, Dhubri showed his name in that capacity. As for the preliminary objection about the maintainability of the writ petition, in the light of the decision of the Full Bench of this Court dated 19-3-2015 in WP(C) No. 612/11 that the remedy of writ jurisdiction will be WP(C) No. 4612 of 11 & others Page 12 of 20
available there is violation of statutory provision, this writ petition will be maintainable though the School is purely a private institution. As for nonexhaustion of alternative remedy of approaching the Grievance Redressal Committee, none of his representations has been disposed of by the Committee till now, and such inaction demonstrates that the remedy so contemplated is not equally efficacious. On the question of res judicata, the learned counsel submits that as T.S. No. 9 of 2011 was not heard and finally decided, and was simply dismissed for non-joinder of necessary party, this writ petition cannot be barred by the principle of res judicata. These are the contentions of the learned counsel for the petitioner. 9. Per contra, Mr. U.K. Nair, Nair, the learned counsel for the respondent No. 8, submits that the service of the petitioner was already terminated by the SMC by adopting the resolution dated 5-6-2008 whereafter the respondent No. 8 was appointed in his place by the resolution dated 20-6-2008. He further submits that the name of the petitioner had never found a place in the list of teachers of the School shown in the DISE Codes for any year whereas the name of the respondent No. 8 is shown in the DISE Code for the year 2010-11, 2011-12 and 2012-13. Once the service of the petitioner was found to be terminated as early as 2008, the question of the petitioner claiming seniority over the respondent No. 8 or of his claiming inclusion in the DISE Code as the Assistant Teacher of the School or of provincializing his service in place of the respondent No. 8 as the Assistant Teacher of the School cannot arise. He also contends that the writ petition is barred by the principle of res judicata inasmuch as the suit instituted by him in T.S. No. 9 of 2011 before the learned Munsiff, Bilasipara is over a matter directly and substantially in issue in this writ petition between the same parties, which was dismissed for non-joinder of necessary party. In this view of the matter, according to the learned counsel, the writ petition is not maintainable and is liable to be dismissed at the very threshold. 10. After going through the pleadings of the parties and on hearing the learned counsels appearing for all the rival parties, it becomes clear that the first point for consideration in this batch of writ petitions is whether the writ WP(C) No. 4612 of 11 & others Page 13 of 20
petitions are amenable to the writ jurisdiction of this Court? The Full Bench of this Court, on a reference by this Bench in this batch of writ petitions, has settled the issue in the judgment dated 19-3-2015 in the following manner: 34. But what about the pre-provncialization stage? As has been noticed at that stage, a venture institution remains a purely private body. It can certainly maintain a writ application qua the State, say, if the institution is left out of provincialization without any or proper justification. In so far as the internal affairs of the institution are concerned, a writ petition against the institution may not be maintainable. However, we say with a caveat. In case of a seniority dispute between two competing claimants which may have bearing on their claims for provincialization, e.g. allegations that the venture educational institution had forwarded the name of one overlooking the case of the other or that the District Scrutiny Committee did not properly verify the claim of the aggrieved employee, the writ Court may intervene in such a case in exercise of its power under Article 226 of the Constitution to direct the District Scrutiny Committee to examine or re-examine such claim or to issue such directions as may be called for. In a given case, where the decision of the authority under Section 10 of the Act of 2011 is erroneous on the face of the record or when adequate materials are available before the Court, the writ Court may itself decide to resolve the issue. The example given above is only illustrative as it is neither possible nor desirable to exhaustively lay down all conceivable situations where writ jurisdiction against a venture educational institution would be available at a stage prior to provincialization. (Italics mine) 11. In the instant case, the dispute raised by the petitioner is about a venture educational institutional, namely, Janakalyan VLP School, which forwarded the name of the respondent No. 8 for provincialization by overlooking the case of the petitioner. Under the circumstances, I have no WP(C) No. 4612 of 11 & others Page 14 of 20
difficulty in holding that this bunch of writ petitions is maintainable. The second question which now falls for consideration is whether WP(C) No. 2272 of 2013 challenging the termination of the service of the petitioner dated 5-6-2008 is barred by the principles of res judicata inasmuch the issue raised herein directly and substantially in issue in T.S. No. 9/2011. I have seen the judgment dated 3-7-2012 in TS No. 9/2011 and a copy of the plaint filed in the suit. In the first place, it is self-evident that the suit was dismissed by the learned Munsiff, Bilasipara for non-joinder of necessary party. The issue is no longer res integras. The Apex Court in Sheodan Singh v. Smt. Daryao Konwar, AIR 1966 SC 1332 held as follows: 16. This brings us to the main point that has been urged in these appeals, namely, that the High Court had not heard and finally decided the appeals arising out suits Nos. 77 and 91. One of the appeals was dismissed on the ground that it was filed beyond the period of limitation while the other appeal was dismissed on the ground that the appellant therein had not taken steps to print the records. It therefore urged that the two appeals arising out of suits Nos. 77 and 91 had not been heard and finally decided by the High Court, and so the condition that the former suit must have been heard and finally decided was not satisfied in the present case. Reliance in the connection is placed on the well-settled principle that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is "required by low to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional court fee on a plaint which was undervalued or for WP(C) No. 4612 of 11 & others Page 15 of 20
want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on the merits would not be res judicata in a subsequent suit. (Italics mine) 12. Need I say more? The suit was filed by the petitioner, as a plaintiff, was dismissed on the ground of technicalities i.e. for non-joinder of necessary parties. The next question for determination is whether the writ petition is barred by non-exhaustion of alternative remedy? The first representation against the appointment of the respondent No. 8 as the 1 st Assistant Teacher of the School by replacing him was filed by him on 6-1- 2011 but no action was ever taken by the respondent authorities to redress his grievance. Instead, adverse order after adverse order was issued against him, which compelled him to file these four writ petitions since then. In these circumstances, there is no question of availing of alternative remedy by the petitioner before coming to this Court: such an exercise would be futile. Therefore, this contention of non-exhaustion of alternative remedy is rejected. 13. Coming now to the meat of the matter, as evident from the pleadings of the petitioner in WP(C) No. 4612/11, WP(C) No. 6109/12 and WP(C) No. 2272/13, it is obvious that till the time WP(C) No. 2272/13 was filed, the petitioner proceeded on the assumption that his service had not been terminated though his service was alleged by the respondent authorities to have been terminated by Resolution No. 1 of the School Managing Committee on 5-6-2008. In fact, the petitioner had obtained an interim order on 17-12-2012 in connection with WP(C) No. 6109/12 directing the respondent authorities not to confer Government grant or service benefits upon the private respondents by disregarding him as a serving Assistant Teacher of the school since 1-1-1987. The case of the petitioner is sought to be refuted by the private respondent by producing the resolution of the School Managing Committee dated 5-6-2008 terminating his service and appointing the respondent No. 8 in his place. It is, however, interesting to note that Annexure-1 to the affidavit-in-opposition dated 9-4-2013 of the WP(C) No. 4612 of 11 & others Page 16 of 20
respondent No. 6 & 7 in WP(C) No. 6109/12 reveals that the petitioner was appointed as Assistant Teacher of the School by Resolution No. 2 bearing dated 1-7-99 of the School Managing Committee. Likewise, Annexure-2 to the same affidavit discloses that the service of the petitioner as Assistant Teacher was terminated on 5-6-2008 by Resolution No. 2 of the School Managing Committee. The specific stance taken by the petitioner is that he had never been aware of such resolution nor was he ever communicated any order terminating his service. Since the respondents have admitted that the petitioner was appointed as Assistant Teacher of the School in terms of the resolution dated 1-7-99, it is not necessary for the petitioner to prove this fact; admitted fact need not be proved. It is, however, the case of the respondents that the service of the petitioner was terminated by the resolution dated 5-6-2008 of the School Managing Committee. In the face of denial by the petitioner that his service was ever terminated, the question to be decided now is on whom the onus of proving that his service was so terminated lies. 14. At this stage, it may be recalled that since the time the first of the writ petitions was filed by the petitioner, he has consistently taken the stance that his service was never terminated. The relief claimed in WP(C) No. 4612 of 2011, among others, was for preparation of the gradation list of the School by treating him as the senior-most teacher thereof. On the other hand, the respondent authorities assert that the service of the petitioner was terminated on 5-6-2008. Assuming for the sake of argument that such termination order was really made on 5-6-2008, then, in the first place, there has to be an order formally terminating the service of the petitioner, nay, such termination order must also be communicated to and received by the petitioner. The factum of issuing formal termination order and of serving a copy thereof upon the petitioner, in the teeth of denial by the petitioner, are facts especially within the knowledge of the respondent authorities; the onus of proving such facts is squarely upon them. When was the termination order formally issued or when was such an order received by the petitioner, or by means of what, personal service or otherwise, or where is the proof of service of the termination order upon him? In para 9 of the writ petition in WP(C) No. 2272/13, the petitioner has specifically pleaded WP(C) No. 4612 of 11 & others Page 17 of 20
that no letter of termination order was furnished to him till 4-4-20113 when Misc. No. 948/13 arising out of WP(C) No. 6109/12 filed by the respondent No. 8 (Abul Kalam Azad) for vacating the interim order dated 17-12-12 passed by this Court directing that no Government grant or service should be conferred upon the respondent No. 8 by disregarding the petitioner as serving teacher of the School. This statement of the petitioner is not denied or disputed by the respondent authorities in their counter-affidavit dated 11-9-2013. No evidence is adduced by the respondent authorities to prove that such formal termination order was ever issued upon or was actually received by him. Even assuming that no formal termination order was required and that the resolution adopted on 5-6-2008 by the School Managing Committee was sufficient to terminate the service of the petitioner, there is no evidence that the petitioner was ever served with a copy of his termination resolution. 15. Even assuming but not admitting that there was the termination order/resolution also, mere termination order/resolution, which was merely retained in the file, and was never communicated to the petitioner, could not be treated as valid termination order. This is the legal position firmly settled by the Apex Court in a series of decision. One such decision is Union of India and other v. Dinanath Shantaram Karekar and other, (1998) 7 SCC 569, where the Apex Court held that where the services of an employees are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating service nor shall the said order be deemed to have been communicated. This legal position was reiterated by the Apex Court in State of WB v. MR Mondal, (2001) 8 SCC 443, where the Apex Court held that an order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation or effect. The Apex Court further held therein that no reliance can be placed on the same to even assert a claim based on its contents. In the instant case, as already found by me, the petitioner has never been communicated his termination order, the existence whereof he came to know only when the WP(C) No. 4612 of 11 & others Page 18 of 20
same was annexed to the said Misc. Case filed by the respondent No. 8 on 6-4-2013 (his counter-affidavit was filed on 9-4-2013). Therefore, such termination order is non-est. 16. Moreover, such termination order, even if there was any, and which was merely retained in file, has no valid existence in the eye of law and no reliance can be placed thereon to assert a claim based on its content. On the basis of my aforesaid findings, I have no hesitation to hold that Resolution No. 1 (Annexure-2) dated 20-6-2008 terminating the service of the petitioner and Resolution No. 2 dated 20-6-2008 appointing the respondent No. 8 (Abul Kalam Azad) are void ab initio and have no force and are, therefore, to be ignored at all times and that the respondent No. 8 can place no reliance on such document to assert any claim based on it. The net effect of my findings is that both the inclusion of the respondent No. 8 in the DISE data for the School as the Assistant Teacher in place of the petitioner and the recommendation of the District Scrutiny Committee, Dhubri for provincializing the service of the respondent No. 8 as Assistant Teacher of the School are also liable to be interfered with. The respondent authorities have relied on the entry of the name of the respondent No. 8 in DISE Data as the Assistant Teacher of the School, but, in the light of my aforesaid findings that the termination of the service of the petitioner and, conversely, the appointment of the respondent No. 8 are non-est, the entry in such DISE Data is inconsequential and cannot confer any status upon the respondent No. 8 as the petitioner has all along been continuing in service or, at any rate, is deemed to be continuing in service as the Assistant Teacher of the School. In so far as the respondent No. 9 (Foriz Uddin Ahmed) is concerned, notice was issued to him by registered post with Ad card in his address which appears to be correct, yet he never contested the writ petition by engaging a counsel or by filing an affidavit-in-opposition. Therefore, I have no alternative but to presume that he has nothing to say regarding the allegations made by the petitioner in the writ petitions. But then, no specific averments are made by the petitioner in any of the writ petitions filed by him about the illegality in his appointment or otherwise. Therefore, there is no material on record to annul the appointment of the respondent No. 9 (Foriz WP(C) No. 4612 of 11 & others Page 19 of 20
Uddin Ahmed) as the Assistant Teacher of the School or of the provincialization of his service. 17. The offshoot of the foregoing discussion is that the impugned orders/resolutions dated 20-6-2008 terminating the service of the petitioner as the Assistant Teacher of the School and of appointing the respondent No. 8 (Abul Kalam Azad) in his place are hereby declared as void ab initio and shall not be acted upon. It is further declared that the petitioner has been, and shall continue to be the Assistant Teacher of the School. The recommendation of the District Scrutiny Committee, Dhubri for provincializing the service of the respondent No. 8 as the Assistant Teacher of the School is hereby quashed. Consequently, the entry of the name of the respondent No. 8 (Abul Kalam Azad) in the DISE Data as well in the list of teaching staff maintained by the School shall be ignored and should not be acted upon for any purpose. The respondent No. 2 shall now process the case of the petitioner for provincialization of his service through the District Scrutiny Committee, Dhubri, which shall then consider him for provincialization of his service in accordance with law keeping in mind the findings/observations made by me earlier. CHIEF JUSTICE (ACTING) Alam WP(C) No. 4612 of 11 & others Page 20 of 20