Nijara Deka v. The State of Assam and 6 Ors. B

ORDER Date : 20-02-2023 Heard the learned counsel for the parties. This appeal is directed against the judgment and order dated 30.06.2022, passed Page No.# 4/5 by the learned Single Judge in WP(C) 5928/2016 dismissing the writ petition filed by the appellant as the petitioner. The appellant had initially joined the P.B. Dhirudutta Higher Secondary School on

04.04.2004 as a Computer Teacher. Subsequently, she had resigned from that post and later on was appointed as a Subject Teacher in Assamese in that school vide appointment letter dated 05.04.2010. According to the appellant/petitioner, she had joined the post of Subject Teacher in Assamese on 06.04.2010 though she was actually serving in the school with effect from 02.04.2010. However, on the instructions of the respondent no. 5, i.e. Principal of the school, she had submitted one joining letter on 10.04.2010. The respondent No. 6 had also joined the said school as a Subject Teacher on 10.04.2010. Since the date of joining in service of the appellant and the respondent No. 6 was the same day, i.e. 10.04.2010, hence, dispute arose as to their seniority. By taking into account their dates of birth, the respondent No. 6 was found to be senior to the appellant. Aggrieved thereby, the appellant had instituted the writ petition, being WP(C) 3231/2013, alleging anomaly in determination of inter se seniority between the appellant and the respondent No. 6. The writ petition was dismissed by the learned Single Judge by the impugned order dated 30.06.2022. Earlier, by an order dated 13.06.2013 passed by the learned Single Judge in WP(C) 3231/2013 instituted by the present appellant, the Director of Secondary Education, Assam, was directed to determine the inter se seniority of the appellant and the respondent No. 6 upon examination of the documents including the school Attendance Register. Accordingly, upon examination of the relevant documents and after affording opportunity of hearing to both the parties, the Director of Secondary Education, Assam, had held that since the date of joining of both the candidates was

10.04.2010, respondent No. 6 was senior to the appellant as per her date of birth. Mr. Goswami, learned counsel for the appellant has advanced arguments to convince this Court that the finding of the Director of Secondary Education was not Page No.# 5/5 correct. However, there is no material available on record to substantiate the said argument. Mr. Mazumdar, learned Standing counsel, Education Department has submitted that the relevant contemporaneous records, including the Attendance Register, are missing. Be that as it may, in order to reverse the finding of the learned Single Judge, we would have to arrive at a conclusion that the finding recorded in the impugned order dated 30.06.2022 is perverse, which cannot be done unless there are cogent and convincing materials available on record to support such a conclusion. Moreover, accepting the submission of Mr. Goswami that his client was serving in the school prior to 10.04.2010 without there being any documentary evidence to establish the same, in our view, would amount to going into disputed questions of facts, which cannot be adjudicated in a writ proceeding. If the appellant is inclined to adduce oral evidence in support of her above claim, then this is not the appropriate forum to do so. In view of the reasons discussed above, we do not find any justifiable ground to interfere with the judgment and order passed by the learned Single Judge. Accordingly the appeal is dismissed. The appellant is, however, given the liberty to pursue appropriate legal remedy, as may be available to her under the law, if so advised.

JUDGE CHIEF JUSTICE Comparing Assistant

PageoNo.#o1/5 GAHC010171732022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/321/2022o NIJARAoDEKAo D/O-oSRIoSUNASWARoDEKA,oVILL.-oKHATAoDHAMDHAMA,oP.O.-oBARBARIo KALANG,oDIST.-oNALBARI,oASSAM,oPIN-o781351 VERSUSo THEoSTATEoOFoASSAMoANDo6oORS.oBo REP.oBYoTHEoCOMMISSIONERoandoSECY.oTOoTHEoGOVT.oOFoASSAM,o SECONDARYoEDUCATIONoDEPTT.,oDISPUR,oGHY-o6. 2:DIRECTOR oSECONDARYoEDUCATIONoDEPTT. oASSAM oKAHILIPARA oGHY-o19. 3:JOINToDIRECTOR oSECONDARYoEDUCATIONoDEPTT. oASSAM oKAHILIPARA oGHY-o19. 4:INSPECTORoOFoSCHOOLS oNALBARIoDIST.oCIRCLE oNALBARI oASSAM. 5:PRINCIPAL oP.B.oDHIRUDUTTAoH.S.oSCHOOL oP.O.-oKPoBARKHALA oDIST.-oNALBARI oPIN-o781350. Page No.# 2/5 6:JOYMATI KALITA SUBJECT TEACHER ASSAMESE P.B. DHIRUDUTTA H.S. SCHOOL P.O.- KP BARKHALA DIST.- NALBARI PIN- 781350. 7:KANAK CHANDRA TALUKDAR RTD. PRINCIPAL P.B. DHIRUDUTTA H.S. SCHOOL R/O VILL.- UTTAR GANAKGARI P.O. and P.S.- SORBHOG DIST.- BARPETA ASSAM PIN- 781317 Advocate for the Petitioner : MR. U K GOSWAMI Advocate for the Respondent : SC, SEC. EDU. Linked Case : I.A.(Civil)/2669/2022 NIJARA DEKA D/O- SRI SUNASWAR DEKA VILL.- KHATA DHAMDHAMA P.O.- BARBARI KALANG DIST.- NALBARI ASSAM PIN- 781351. VERSUS THE STATE OF ASSAM AND 6 ORS. REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM SECONDARY EDUCATION DEPTT. DISPUR GHY- 6. 2:DIRECTOR SECONDARY EDUCATION DEPTT. ASSAM Page No.# 3/5 KAHILIPARA GHY- 19. 3:JOINT DIRECTOR SECONDARY EDUCATION DEPTT. ASSAM KAHILIPARA GHY- 19. 4:INSPECTOR OF SCHOOLS NALBARI DIST. CIRCLE NALBARI ASSAM. 5:PRINCIPAL P.B. DHIRUDUTTA H.S. SCHOOL P.O.- KP BARKHALA DIST.- NALBARI PIN- 781350. 6:JOYMATI KALITA SUBJECT TEACHER ASSAMESE P.B. DHIRUDUTTA H.S. SCHOOL P.O.- KP BARKHALA DIST.- NALBARI PIN- 781350. 7:KANAK CHANDRA TALUKDAR RTD. PRINCIPAL P.B. DHIRUDUTTA H.S. SCHOOL R/O VILL.- UTTAR GANAKGARI P.O. and P.S.- SORBHOG DIST.- BARPETA ASSAM PIN- 781317. ------------ Advocate for : MR. L GOGOI Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 6 ORS. BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SUMAN SHYAM