Kanti Khatanier vs State Of Assam And 8 Ors

Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Elementary Education

Department.

As regards the service of notice on respondent Nos. 6 to 9, Office Note dated 17.12.2015 indicates that an affidavit as regards the personal service of

notice on the said respondents was placed at Flag-A. Office note dated 18.03.2016 indicates that A/D card has been received back and by the order

dated 06.12.2016, the service is accepted to be complete. It is also on record that the Mr. D. Nag learned counsel had appeared for respondent No.7

and prayed for three weeks time for filing affidavit-in-opposition and thereupon, an affidavit-n-opposition was filed on behalf of the respondent Nos. 6

and 7.

In the premises, this Court deems it appropriate that the matter can be proceeded for its final consideration although the respondent Nos. 6 to 9

have chosen not to remain present in the hearing.

The petitioner was appointed as an Assistant Teacher (Science) in Digholbari Girl’s M.E. School on 01.08.1992 as per the decision of the

managing committee in its Resolution.1 dated 29.07.1992 and subsequently his appointment in the school was recognized and approved by the DEEO,

Morigaon by the order dated 15.12.1993. Earlier by an order dated 25.02.2010 of the DEEO, Morigaon, an order of discharge from service against the

petitioner by the managing committee of the school was approved. The said order of 25.02.2010 was assailed in a writ petition being WP(C)

No.2986/2010, which was given a final consideration by the judgment and order dated 21.07.2014. By the judgment and order dated 21.07.2014, it was

provided that the petitioner would be entitled to make a reply to the order dated 25.02.2010 by treating the same to be a show-cause notice. It was

further provided that in the event, such reply is submitted by the petitioner, the DEEO Morigaon shall pass an appropriate order by taking note of the

attending facts and circumstance and in accordance with law and if need be in association of the managing committee of the school.

In response to the order dated 21.07.2014, the DEEO Morigaon had passed the order dated 03.03.2015 by which, a conclusion was arrived that the

Government cannot withdraw the order of termination against the petitioner as the same was passed by the managing committee of the Digholbari

Girl’s M.E. School. It is taken note of that while passing the order dated 03.03.2015, the DEEO Morigaon had directed the Headmaster and

Member Secretary of the concerned school to place the matter before the managing committee of the school for taking necessary action in

compliance of the order dated 21.07.2014 in WP(C) No.2986/2010. The relevant portion of the order of the DEEO is as follows:-

“In this context, the Head Master and Member Secretary of Dighalbori Girl’s M.E. School was directed to place the matter before the SMC of

the School to take necessary action for compliance of the order of the Hon’ble Gauhati High Court vide dt. 21/07/2014 passed in WP(C)

No.2986/2010 and communicate the same to the petitioner Sri Kanti Khataniar, as the School Managing Committee is the sole authority for

appointment of Teaching and Non-Teaching staff as Non-Govt. Institution during venture period. As per direction of the Hon’ble High Court and

in reference to the letter of Head Master, Dighalbori Girl’s M.E. School the show cause reply was submitted by the petitioner Sri Kanti Khataniar

on 25/11/214 before the Headmaster and Member Secretary, SMC, of the School in connection with the impugned order dt. 25/02/2010 treating the

same as the show causes notice. The Headmaster and Member Secretary, SMC of the school again placed the sow cause reply of the petitioner

before the SMC held on 03/01/2015. The SMC had discussed thoroughly the replies of Sri Kanti Khataniar and totally not satisfied of his replies as per

Resolution No.1 dtd. 03/01/2015 as communicated to the office of the undersigned by the Head Master of the school vide his letter dated

19/01/2015.â€​

A bare perusal of the said portion of the order of DEEO makes it explicitly clear that what the DEEO had done was that he had directed the

Headmaster to place the reply of the petitioner before the school managing committee for taking its decision. As already noted, this Court by the order

dated 21.07.2014 had directed that in the event the petitioner submits the reply to the order dated 25.02.2010 by treating it to be a show cause notice,

the DEEO shall pass appropriate order by taking note of all attending facts and circumstance and in accordance with law and if need be in association

with the managing committee of the school.

The requirement to pass an appropriate order in accordance with law and if need be in association with the managing committee of the school does

not by itself mean that the DEEO will not do the needful and direct the Headmaster to place the reply of the petitioner before the school managing

committee for its approval. What was required by the order dated 21.07.2014 was that in arriving at its decision, the DEEO may do it in association of

the managing committee of the school which apparently does not mean that the entire burden to pass reasoned order would be shifted back to the

managing committee of the school.

In such view of the matter, this Court is of the view that the requirement of the order dated 21.07.2014 for the DEEO to pass an appropriate order

in respect of the reply submitted by the petitioner against the order dated 25.02.2010, by treating it to be show-cause notice, had not been duly

complied with.

Accordingly, the order dated 03.03.2015 of the DEEO, is set aside.

It is also taken note of that as this Court by its earlier order dated 21.07.2014 had required the order dated 25.02.2010 to be a show cause notice,

the same can now no longer be construed to be an order of termination against the petitioner and therefore, the conclusion of the DEEO, Morigaon

that the Government cannot withdraw the termination is also found to be unacceptable. Further, the DEEO had also passed an order dated 14.10.2014

which says that for complying with the order dated 21.07.2014 in WP(C) No.2986/2010, as the school managing committee is the sole authority for

appointment of teaching and non-teaching staff of non-government institution, therefore, the petitioner will submit his reply to the order dated

25.02.2010 before the school managing committee. The said order passed by the DEEO is firstly unsustainable and secondly, it amounts to overturning

and overreaching the earlier order of this Court dated 21.07.2014.

Even if the DEEO may be of the view that the needful can be done by the school managing committee and not by the DEEO, as directed in the

order dated 21.07.2014, the appropriate recourse would be to carry forward an appeal or a review, but under no circumstance, the DEEO can pass an

order which would amount to passing an order negating or altering the order of the Court. For not duly complying with the order of this Court and

converting it to be an order of some other nature, the Director of Elementary Education, Assam is directed to look into the matter and take appropriate

action against the concerned DEEO. The Director shall submit a report of the compliance of the action taken against the DEEO and place it before

the Registry of the Court. In terms of the above, the writ petition stands allowed.