Halima Rahman vs State Of Assam And 5 Ors.

Heard Mr. P. Sarma, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Standing Counsel for the Higher Education Department

and Mr. M. Khan, learned counsel for the Governing Body of Jaleswar College, Tapoban as well as Ms. S. Kanungoe, learned counsel for the

respondent No. 6(Abdus Sobur).

The petitioner was initially appointed as a LDA in the Jaleswar College, Tapoban on 07.03.1996, whereas the respondent No. 6 was appointed as a

LDA on 15.05.1996. When the stage for provincialisation of the College came, a dispute has arisen regarding the seniority between the petitioner and

the respondent No. 6. In the information provided by the college authorities regarding the staff pattern of the college for the purpose of

provincialisation, the petitioner was shown above the respondent No. 6. Being aggrieved, the respondent No. 6 had preferred the writ petition in

WP(C) No. 1341/2013 which was given a final consideration by the order dated 02.05.2014. By the said order, the respondent authorities were

directed to look into the question as to who amongst the petitioner and the respondent No. 6 is senior as LDA.

Subsequent thereof, the order dated 02.01.2015 was passed by the Commissioner and Secretary to the Government of Assam in the Higher

Education Department. As per the said order, a conclusion was arrived at that from 27.03.1996 up to 20.06.2001 the petitioner had taken lien, but the

lien so granted was not in conformity of the Rules of the State Government. Accordingly, the seniority was declared in favour of the respondent No.

The conclusion of the Commissioner and Secretary that the lien granted to the petitioner was not in conformity of the Rules of the State

Government, would therefore have to be examined.

Mr. K. Gogoi, learned Standing Counsel for the Higher Education Department refers to Rules 23 of the Assam College Employees

(Provincialisation Rules, 2010) which inter alia provides that lien, deputation etc. shall be granted by the Government and the proposals are to be

routed through the Director. In the instant case, admittedly the lien was granted to the petitioner by the President of the Managing Committee and

therefore, it was the stand of the Commissioner and Secretary that the lien was not granted as per the Government Rules.

But what is noticeable is that at the relevant point of time in the year 1996, the concerned college was a venture college and therefore the Assam

College Employees (Provincialisation Rules, 2010) was not applicable. It is stated that at the relevant time the Assam Non-Government College

Management Rules, 2001 was in force. But, admittedly the said rule was also not applicable as the event of granting the lien had taken place in the

year 1996. In the absence of any specific Rules holding the field at that relevant point of time, the conclusion of the Commissioner and Secretary that

lien granted to the petitioner was not in conformity with the Rules of the State Government is unacceptable.

Be that as it may, the order dated 02.01.2015 of the Commissioner and Secretary was assailed in WPC No. 1380/2015, which was given a final

consideration by the order dated 08.03.2016. As per the order of 08.03.2016, the order of the Commissioner dated 02.01.2015 was interfered and the

Commissioner and Secretary was required to undertake a fresh exercise. In other words, the Commissioner was required to re-determine the seniority

between the petitioner and the respondent No. 6.

As a compliance of the order of 08.03.2016, an order dated 03.05.2017 was passed by the Principal Secretary to the Government of Assam in the

Higher Education Department. The said order is being assailed in the present writ petition.

In the order dated 03.05.2017, the Principal Secretary had arrived at a conclusion which is as follows: It is clear by the naked eye that so called

“approval of Lien application of Smti. Halima Rahman†as a proceeding/ resolution of Governing Body has been inserted later by a different

ink(pen) in a vacant space which clearly highlights that the proceeding book (Register) at page no. 20 (back side) has been manipulated by the

authorities of the College or Governing Body to allow her to have her way. Register has been seized and kept in Higher Education Department. Such

manipulated entry in the register is not acceptable.

From the conclusion, it is apparent that the Principal Secretary had taken note that in the resolution book of the Governing Body, the approval

granted to the petitioner for the lien was written in a different ink(pen) and therefore, it was considered to be a manipulation.

The said conclusion of the Principal Secretary has to be looked into from the point of view of the affidavit filed by the Governing Body of the

College wherein in paragraphs-8, a specific stand had been taken that on the given date, the Managing Committee had primarily discussed the question

of appointment of full-fledged Principal of the College, however just prior to the ending of the meeting the issue related to lien of the petitioner was

also raised and was decided in her favour. But the writer of the resolution having not initially included the said decision, had later on added it in the last

part of the resolution No. 3, which resulted in the writer using a pen containing different ink. It is the stand of the Governing Body of the College on

oath that on facts, in the meeting of the Governing Body, it was decided to grant lien in favour of the petitioner.

Merely, because the resolution was written in a different ink in the proceeding book cannot by itself be sufficient to conclude that the resolution

itself was manipulated. A further exercise is required to be carried out by the Principal Secretary to arrive at the correct factual position. Another

aspect of the matter what is noticeable is that in the body of the application of the petitioner submitted on 23.07.1996 for grant of lien, there appears an

endorsement by the Principal of the College that the lien was allowed subject to the approval of the President of the Managing Committee and

subsequently, there is another endorsement by the President approving the grant of the said lien. The Principal Secretary of the Higher Education

Department did not take the aforesaid aspect into consideration while arriving at its conclusion that the resolution was manipulated because different

ink was used.

From the aforesaid point of view, it is deemed appropriate that the ends of justice will be met if the Principal Secretary or the Commissioner and

Secretary to the Government of Assam in the Higher Education Department, whosoever is the appropriate authority, to give a fresh consideration to

the dispute between the petitioner and the respondent No. 6 and arrive at a conclusion as to whether the lien granted to the petitioner in the year 1996

was legitimate and whether it was actually granted by the Managing Committee.

In doing so, the Principal Secretary or the Commissioner and Secretary as the case may be shall give a personal hearing to the petitioner as well

as to the respondent No. 6 and also allow them to produce any further relevant material that they may desire to produce. Upon undertaking such

exercise, the Principal Secretary or the Commissioner and Secretary, shall pass a reasoned order and the conclusion of the reasoned order shall

prevail over the earlier order of provincialisation made in favour of the respondent No. 6.

The Governing Body of the College shall also be given a hearing and be allowed to produce any relevant materials that are in their possession for a

correct and fair determination of the dispute.

Mr. P. Sarma, learned counsel for the petitioner has drawn the attention of the Court to the conclusion of this Court in its order dated 08.03.2016

that no such resolution is found in the record as regards the appointment of the respondent No. 6. The Principal Secretary shall also give a

consideration to the same and verify the relevant material available that are available on record with regard to the said conclusion. The respondent No.

6 shall have the liberty to make his presentation and produce any relevant material to point out that the said conclusion is incorrect.

The aforesaid exercise be done within a period of 3(three) months from the date of receipt of a certified copy of this order. In terms of the above,

this writ petition stands disposed of.