Ikbal Hussain Mazumder v. Sk Islam Uddin and 6 Ors

ORDER Date : 02-06-2023 Heard Sri J.H Laskar, learned counsel for the applicant, who by means of this application has prayed for vacation/ alteration/modification of an order dated

27.05.2022, passed in the WP(C)/ No. 3512/2022. By the aforesaid order, while notice of motion was issued, an interim order was passed that the respondent No. 7 shall not function as the President of the SMDC of the Nimaichandpur H.S School. The Hon'ble Court took into consideration that as per the guidelines, the President of the SMDC should not have a political career and to demonstrate the same, the petitioner have relied upon a notification dated

14.09.2021, whereby the respondent No. 7 was shown to be the State Secretary of the Minority Morcha, Assam Pradesh. On the other hand, Shri Laskar, the learned counsel for the applicant/respondent No. 7 has submitted that the earlier notification dated 24.06.2016, governing the field of appointment of President of SMDC has been modified vide a notification dated Page No.# 3/4

27.10.2021. He submits that the selection of appointment has been done in terms of the said notification and the notification itself is not been the subject matter of challenge, the present stay order is liable to be vacated. Per contra, Shri Deka, the learned counsel for the opposite party/writ petitioner has submitted that though there is modification of the original notification dated

24.06.2016, the initial process laid down which require consultation with the Principal/Head Master and the local people cannot be overlooked. He further submits that in this regard he relies upon the cases of in "Azhar Uddin & Ors. -Vs-The State of Assam & Ors reported in 2019(4) GLT 279 and Narendra Kumar Nath -Vs-The State of Assam & 5 Ors in WP(C) No. 3302/2022 " in support of his submission. Shri B. Koushik, learned Standing Counsel for the Department submits that although, the affidavit has not been filed, he would produce the record. This Court has noticed by the subsequent notification dated 27.10.2021, the earlier guidelines contained in the notification dated 24.06.2016 have been modified. Even otherwise, the political affiliation has been explained in Clause-4 of the original notification that the disqualification would be for any person, who had contested any election of Panchayat level/Parliament/Assembly in the last 20 years which has not the pleaded case. That apart, in terms of the notification dated 27.10.2021 not only the power of appointment have been vested upon the Deputy Commissioner, the Deputy Commissioner is empowered to make the selection of the President and Vice-President of the SMDC, which is to be approved by the Guardian Minister. Unless the notification is put to challenge, the consequent action of passing the order of appointment of the respondent No. 7, pursuant to the said notification, there cannot be any prima facie case for continuing an order, of stay. This Court has also considered the case laws relied upon the by the learned counsel for the opposite party/ writ petitioner. In the case of Azhar Uddin (supra) the decision was rendered on 09.05.2019 and the present notification dated 27.10.2021 was not in existence and the selection Page No.# 4/4 made in that case was in terms of the notification of the year 2016. In the case of "Narendra Kumar Nath (supra), the Hon'ble Court had taken into consideration the requirement of the approval of the concerned Guardian Minister and the facts of both the cases are distinguishable. In view of the aforesaid facts and circumtances and the discussions made above, this Court is of the opinion that the interim order dated 27.05.2022, passed in the writ petition is liable to be vacated and accordingly, the same stands vacated.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010168552022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oI.A.(Civil)/2530/2022o IKBALoHUSSAINoMAZUMDERo S/OoAFTABoUDDINoMAZUMDER,oVILL-NIMAICHANDPUR,oP.S.- HAILAKANDI,oDIST-HAILAKANDI,oASSAM VERSUSo SKoISLAMoUDDINoANDo6oORS.o S/OoLT.oS.K.oGONIoMIA,oVILL-NIMAICHANDPUR,oDIST-HAILAKANDI,o ASSAM 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM oEDUCATIONoDEPARTMENTo(SECONDARY) oASSAM oDISPUR oGUWAHATI-6 3:THEoSECRETARYoTOoTHEoGOVERNMENToOFoASSAM oEDUCATIONoDEPARTMENTo(SECONDARY) oASSAM oDISPUR oGUWAHATI-6 4:THEoDIRECTORoOFoSECONDARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-19 5:THEoDEPUTYoCOMMISSIONER oHAILAKANDI oASSAM Page No.# 2/4 6:THE INSPECTOR OF SCHOOLS HDC HAILAKANDI ASSAM 7:THE PRINCIPAL NIMAICHANDPUR H.S. SCHOOL VILL-NIMAICHANDPUR P.O.-NIMAICHANDPUR PIN-788155 DIST-HAILAKANDI ASSA Advocate for the Petitioner : MR. J LASKAR Advocate for the Respondent : MR. I H LASKAR BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI