Chakradhar Kalita, v. The State of Assam and 6 Ors

ORDER

26.05.2023 Heard Shri N Sarma, learned counsel for the applicant-respondent no. 5 in the connected writ petition, who, by means of this application, has prayed for modification/vacation/alteration of the ex-parte interim order dated 28.10.2021 passed by this Court in the connected writ petition. To appreciate the issue, it would be beneficial to refer to the aforesaid order of this Court. This Court, while issuing notice, vide its order dated 28.10.2021, had made Page No.# 3/4 the following observation:

"Considering the balance of convenience and irreparable loss that the petitioner may suffer, further effect of provincialization in respect of respondent no. 5 Chakradhar Kalita shall remain stayed until further order(s)."

Shri Sarma, learned counsel for the applicant submits that the statute holding the field is, namely, Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the Act of 2017). Referring to the relevant provision of the statue, namely, Section 3 (1) (xi), the learned counsel for the applicant has submitted that for the School in question, the criteria laid down for selecting such School for provincialisation of the services of the Teachers are that there should be minimum three Teachers and at least, one Teacher each for – i) Science and Mathematics ii) Social Studies and iii) Languages or Teachers. In the instant case, he submits that while the applicant was teaching both English and Mathematics, the opposite party-writ petitioner was teaching Assamese language. Shri Sarma, learned counsel further submits that he is senior to the opposite party-writ petitioner of having joined the services on 18.02.1987 while the writ petitioner was given a formal appointment on 20.03.1988. The learned counsel, accordingly submits that there is no basis for continuing with the interim order as, by such order, the writ petitioner is not gaining anything and rather, the applicant is suffering immense prejudice. Refuting the said contention, Shri DS Deka, learned counsel for the opposite party-writ petitioner has submitted that so far as his client is concerned, though the formal order of appointment is 20.03.1988, it was given effect from 25.11.1987 that is the date from which he was discharging his service. He also submits that the Page No.# 4/4 petitioner ought to be given certain priority as, he is teaching Assamese language which is in the interest of public in general. After hearing the parties and on perusal of the materials on record, it appears that even if the date from which the writ petitioner's services have been recommended i.e., 25.11.1987 is considered, he is junior to the applicant-respondent no. 5. That apart, it also transpires that the process by which the applicant was selected by the District Level Committee (DLC) and also the State Level Committee

(SLC) are not the subject matters of challenge. It is an established principle of law that this Court in exercise of powers of judicial review can only examine the decision making process and not the decision itself. In other words, it is the lawfulness of the decision which can be the subject matter of challenge and not the soundness of the same. That apart, this Court is also of the view that the interim order is also not benefiting the writ petitioner, as benefit of provincialisation is not being enjoyed by the writ petitioner. It is a different matter that if the petitioner ultimately comes successful in this writ petition, he may get the fruits of the provincialisation of his service. In view of the aforesaid facts and circumstances, this Court is of the opinion that the interim order 28.10.2021 is liable to be vacated and the same is, accordingly vacated. The interlocutory application is, accordingly allowed. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010101932023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/1308/2023o oooooooooooooooooooooooooooooooooooooooooooooooooooooWP(C)/5661/2021 CHAKRADHARoKALITA,o S/OoSANTANoBARMAN,oTUTOR,o573oNO.oKENDUKUCHIoLPoSCHOOL,oPINo 781341,oDISTRICToNALBARI,oVILLAGEoANDoP.O.oKENDUKUCHI,oNALBARI,o ASSAM,oPINo781341. VERSUSo THEoSTATEoOFoASSAMoANDo6oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECY.oTOoTHEoGOVT.oOFo ASSAM,oEDUCATIONo(ELEMENTARY)oDEPTT.,oDISPUR,oGUWAHATIo781006 2:THEoDIRECTORo(CHAIRMAN oTHEoSTATEoLEVELoSCRUTINYoCOMMITTEE) oELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATIo781019 3:THEoDEPUTYoCOMMISSIONER oCHAIRMAN oDIST.oSCRUTINYoCOMMITTEE oNALBARIo781335 oASSAM oINDIA. 4:THEoDIST.oELEMENTARYoEDUCATIONoOFFICER oNALBARIo781335 oASSAM Page No.# 2/4 INDIA. 5:SARBESWAR RAJBONGSHI ASSTT. TEACHER/TUTOR KANAKLATA BALIKA M.E. SCHOOL KENDUKUCHI-781341 NALBARI ASSAM INDIA 6:TANKESWAR HAZARIKA ASSTT. TEACHER/TUTOR KANAKLATA BALIKA M.E. SCHOOL KENDUKUCHI 781341 NALBARI ASSAM INDIA. 7:PARAMESH RAJBONGSHI S/O LATE JIBAN RAJBONGSHI R/O VILL. KENDUKUCHI P.O. KENDUKUCHI NALBARI 781341 ASSAM INDI Advocate for the Petitioner : MR N SARMA Advocate for the Respondent : SC, EDU BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI