Sheikh Faruque Ahmed v. The State of Assam and 4 Ors

ORDER Date : 15.05.2023

Heard Mr. N. Ahmed, learned counsel for the petitioner. Also heard Mr. U. Sarma, learned standing counsel for the Secondary Education Department, respondent nos.1 to 3 and Mr. M. Khan, learned counsel for the respondent nos.4 and 5.

¶2The case of the petitioner, in brief, is that he was appointed as a Hindi Teacher at Lokapriya High School, Kadamtola, Bilasipara, Dhubri by order dated 25.09.1995, issued by the then Headmaster of the school. Accordingly, the petitioner had joined the service in the said school on 27.09.1995. It is projected that although the said school was a venture educational institution, the appointment of the petitioner was duly approved by the Inspector of Schools, DDC, Dhubri on 16.10.1995. On retirement of the then Headmaster, the School Managing Committee had appointed the respondent no.5 as a teacher of the school, allegedly without following due procedure. In the Page No.# 3/4 meanwhile, the respondent no.5 filed a writ petition before this Court being WP(C) no. 3964/2017, wherein the petitioner was impleaded as respondent no.6 vide order passed in I.A.(Civil) 2488/2017. The petitioner was discharged from service by communication dated 17.07.2017 without following any procedure, without issuance of prior notice or after drawing up any proceeding. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the communication dated 17.07.2017, thereby discharging him from service and for a direction to the respondent authorities to consider his representation dated 18.08.2017.

¶3In course of submissions, the learned counsel for the respondent nos.4 and 5 has submitted that WP(C) no. 3964/2017 was dismissed and it is submitted that during the pendency of this writ petition, the erstwhile venture school, being Lokapriya High School, Kadamtola, Bilasipara, Dhubri has been provincialized by order dated 05.02.2021. It is also submitted that the School Managing and Development Committee ("SMDC" for short) has also been reconstituted. In order to show that writ petition against the venture/private school is not maintainable, the learned counsel for the respondent no.5 has cited the case of Trigun Chand Thakur v. State of Bihar & Ors., Civil Appeal No. 10003/2010, decided by the Supreme Court of India on 09.07.2019, thereby dismissing the Civil Appeal and affirming the dismissal of the writ petition being not maintainable against a private institution.

¶4Even assuming that there are grounds in this writ petition to show that the termination of the petitioner was not in accordance with law, but due to the change of circumstances, whereby the said school has been provincialized, the appointment of Headmaster would be the prerogative of the authorities in Page No.# 4/4 the School Education Department, Assam. The resolution by the SMDC to discontinue the service of the petitioner, at the relevant time was by the SMDC of a private/venture institute and in the case of Trigun Chand Thakur (supra), cited by the learned counsel for the respondent nos.4 and 5, the Supreme Court of India had approved of the Division Bench judgment of the Patna High Court holding that the managing committee of a privately managed school would not be "State" within the meaning of Article 12 of the Constitution of India. The view was affirmed and accordingly, the said ratio would squarely be applicable to the facts of the present case.

¶5Therefore, the Court is disinclined to entertain the writ petition where relief is essentially sought for against the erstwhile SMDC of the venture educational institution. Moreover, as the said institution has now been provincialized, as stated at the Bar, the petitioners would not be entitled to any relief as prayed for as the appointment of Headmaster of a provincialized school would be the prerogative of the authorities in the School Education Department.

¶6Therefore, the issue raised by the petitioner has not been adjudicated on merit and the writ petition stands dismissed.

¶7It would be open to the petitioner to seek such remedy as he may be so advised. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010050192017 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/7052/2017o SHEIKHoFARUQUEoAHMEDo HINDIoTEACHERoLOKAPRIYAoHIGHoSCHOOLoS/OoAKSEDoALIoSHEIKHoR/Oo BANDHABPARAoP.O.oandoP.S.oBILASIPARAoDIST.oDHUBRI,oASSAM,oPINo-o 783348 VERSUSo THEoSTATEoOFoASSAMoando4oORS.o TOoBEoREP.oBYoTHEoCOMMISSIONERoANDoSECRETARY,oGOVT.oOFoASSAM,o EDUCATIONoDEPARTMENT,oDISPUR,oGUWAHATIo-o781006. 2:THEoDIRECTORoOFoSECONDARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATIo-o781019. 3:THEoINSPECTORoOFoSCHOOLS oDHUBRIoDISTRICToCIRCLEoDDC oDHUBRI oP.O.oandoDIST.oDHUBRI oASSAM oPINo-o783301. 4:THEoSCHOOLoMANAGINGoCOMMITTEE oLOKAPRIYAoHIGHoSCHOOL oREP.oBYoITSoPRESIDENT oSK.oSHAHJAHANoMONTUoS/OoLT.oKHARIYAoSHEIKHoVILL-oKADAMTOLo PT.III oP.O.oBILASIPARA oDIST.oDHUBRI Page No.# 2/4 ASSAM PIN - 783348. 5:JOHIRUL HOQUE S/OLT. UMAR ALI SHEIKH VILL- KADAMTOLA PT.II P.O. BILASIPARA DIST. DHUBRI ASSAM PIN - 783348 Advocate for the Petitioner : MR.S K M ALOMGIR Advocate for the Respondent : MR. M KHAN (R-4, R-5) BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA