Kamaluddin vs State Of Assam And 2 Ors

Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned Standing Counsel for the Secondary Education

Department.

The petitioner, who was appointed as a Subject Teacher in English in the Model Higher Secondary School at Patharkandi in Karimganj District, was

subsequently confirmed and permanently retained in his post. In the course of his service, the petitioner submitted an application dated 20.03.2006

before the Director of Secondary Education, Assam praying that he be granted for 3 months lien with station leave permission in order to enable him

to join a new assignment in the Sultanate of Oman. Subsequently, some further similar application is followed.

But as the application of the petitioner for grant of lien was not given a consideration, the petitioner sometime in the month of July, 2006 left for

Sultanate of Oman for his new assignment without waiting for the final outcome of his application for grant of lien. Subsequently, other application

were filed from time to time i.e., on 05.06.2008 and 16.06.2009 praying for extension of the grant of lien.

The petitioner returned back from Sultanate of Oman sometime in the year 2010 and thereafter when he approached his school requesting that he

be allowed to join in his service, the same was not accepted by the authorities. On the other hand, a proceeding was drawn up against the petitioner as

per the show cause notice dated 26.11.2013. The said proceeding pursuant to show cause notice dated 26.11.2013, ultimately culminated in the order

of dismissal dated 16.12.2014.

In the aforesaid circumstances, WP(C) No.5375/20013 was preferred by the petitioner for a direction to the respondent authorities to grant the lien

from 05.04.2016 to 14.06.2010 and also to allow the petitioner to join in his service thereupon.

The other writ petition WP(C) No 5233/2015 had been preferred assailing the order of the dismissal dated 16.12.2014.

Dr. B. Ahmed, learned counsel for the petitioner fairly states that the order of dismissal had been challenged on the sole ground that the respondent

authorities had not given a final consideration to his application for grant of lien and therefore, the order of dismissal dated 16.12.2014, dismissing him

from his service on the ground of unauthorized absence is liable to be interfered.

The only issue for decision before the Court would be as to whether the petitioner was given a due consideration as regards his applications for

grant of lien. Admittedly, although the petitioner made several applications requesting for grant of lien, no final order was passed either accepting or

rejecting the prayer for lien. Although it cannot be said that the request for lien was not refused to the petitioner, but at the same time, it also cannot be

said that the lien is deemed to have been granted to the petitioner. Only conclusion that can be arrived at is that the prayer of lien of the petitioner was

not expressly refused by the respondent authorities.

But at the same time, it is also noticed that after the petitioner returned from Sultanate of Oman, the Director of Secondary Education, Assam had

made a communication dated 09.08.2010 to the Commissioner and Secretary to the Government of Assam in the Secondary Education Department.

In the said communication, the Commissioner and Secretary was informed that initially the petitioner had applied for lien for 3 months from 05.04.2006

to 30.06.2006 and thereafter, he had submitted applications dated 05.06.2008 and 16.09.2009 for grant of extension of his lien. The communication

stated that the records reveal that lien leave requested by the petitioner was not yet granted. Accordingly, a request was made by the Director to the

Commissioner that the claim of the petitioner for grant of lien be examined and an appropriate order be passed.

In the aforesaid circumstance, as the said communication of the Director of Secondary Education requesting the Commissioner and Secretary in

the Secondary Education Department to examine the claim of the petitioner and to pass a reasoned order had not been duly complied with, this Court

is of the view that to that extent the petitioner had a legal right for a consideration.

From that point of view, the Commissioner and Secretary to the Government of Assam in the Secondary Education Department is directed to give

a consideration to the request made by the Director in the communication dated 09.08.2010 and pass a reasoned order thereon. It is provided that in

doing so, the Commissioner and Secretary shall give a personal hearing to the petitioner and allow him to produce any other material that he may

desire to produce and upon considering the same, the Commissioner and Secretary shall pass a reasoned order on the claim of the petitioner as

required by the communication dated 09.08.2010. Depending upon the reasoned order to be passed by the Commissioner and Secretary, a further

decision shall be taken as to whether the order of dismissal dated 16.12.2014 is to be retained or the same also requires any modification depending on

the outcome of the reasoned order to be passed.

It is clarified that the direction to the Commissioner and Secretary to pass a reasoned order is not made on the basis of any view taken by this

Court that the petitioner is entitled to such lien. The only basis for the order is that the communication dated 09.08.2010 from the Director of

Commissioner was not duly brought to its logical end and the Commissioner and Secretary shall take his own decision depending on the facts and

circumstances without being influenced by any of the provisions of this order.

The aforesaid exercise be undertaken by the Commissioner and Secretary within a period of 4 months from the date of receipt of certified copy of

this order. In terms of the above, both the writ petitions stands disposed of.