Uttar Kampith Mahavidyalaya Sr. and Anr v. The State of Assam and 11 Ors

ORDER Date : 17.03.2023

Heard Ms. J. Kalita, learned counsel for the petitioners. Also heard Mr. S. Das, learned standing counsel for the Higher Education Department, respondent nos.1 and 2; Mr. A. Chaliha, learned standing counsel for the Finance Department, respondent no.6; Mr. G. Pegu, learned Govt. Advocate appearing for the respondent nos.3, 4, 7, 8 and 9; and Mr. P.K. Roy, learned counsel for the private respondent no.11. None appears on call for the respondent nos.5, 10 and 12.

¶2By filing this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing of the order of provincialisation dated 20.01.2014 (Annexure-D), issued by the Director of Higher Education, Assam in respect of the teaching and non-teaching employees of the Uttar Kampith College (petitioner no.1 college) and directed the respondent nos.1 and 2 to provincialise the service of the respondent no.11 as Principal of the said college w.e.f. 01.01.2013. It may be mentioned that in the cause-title, the petitioner no.1 is referred to as Uttar Kampith Mahavidyalaya (Sr.). Page No.# 4/6

¶3The learned counsel for the petitioners has submitted that the District Scrutiny Committee, Nalbari, as per the provisions of section 10 of the erstwhile Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, had recommended the name of the petitioner no.1 college for provincialisation of service of teaching and non-teaching employees. Accordingly, vide impugned order dated 20.01.2014 issued by the respondent no.2, the services of certain teaching and non-teaching employees, including the petitioner no.2 and respondent no.11 had been provincialized. The learned counsel for the petitioners has submitted that the respondent no.11 had supplied a fake High School Leaving Certificate, 1969, issued by the Board of Secondary Education, Assam, showing his roll number as 576 and aged 14 years 7 months on 01.03.1969, and accordingly, the respondent no.11 had continued in his service till 31.12.2014. It is submitted that as per RTI reply received by the petitioner from the Office of the Headmaster of Gangapukhuri Barkuriha High School vide communication dated 29.09.2015, the respondent no.11 had passed his HSLC Examination in 1967 from the said school and accordingly, his age on 1967 would be 16 years 7 months. Accordingly, it is submitted that as per the disclosure made by the said school, the respondent no.11 should have superannuated on 01.08.2010. Hence, it is submitted that the service of respondent no.11 could not have been provincialized by the impugned order dated 20.01.2014. By referring to the case of K. Thimmappa & Ors. Vs. Chairman, Central Board of Directors, State Bank of India & Anr., (2001) 2 SCC 259, the learned counsel for the petitioners has submitted that as constitutional right of the petitioner no.2 has been violated, the writ petition should not be dismissed on the ground of delay and laches.

¶4The learned counsel for the respondent no.11 has submitted that the service of the petitioner no.2 was also provincialized by the impugned order Page No.# 5/6 dated 20.01.2014 along with other teaching and non-teaching employees of the petitioner no.1 college. It is also submitted that the petitioner no.2 had also lodged FIR and other proceedings against the respondent no.11 and by referring to the allegations made in the FIR and in the present writ petition, it is submitted that the respondent no.11 could not have been made a better disclosure as it could have been materially affected him in his defence in criminal trial.

¶5On a query made at the Bar, the learned counsel for the petitioners as well as the learned counsel for the respondent no.11 has submitted that on superannuation of the respondent no.11 on 31.12.2014, the petitioner no.2 was appointed as Principal In-charge of the petitioner no.1 college.

¶6In the present case in hand, it is noted that the impugned order of provincialisation of service of the petitioner no.2 as well as the respondent no.11 was passed on 20.01.2014. From the statement made in the affidavit-in-opposition by the respondent no.11, it appears that an FIR was lodged by the respondent no.2, which was registered as Belsor P.S. Case No. 107/2015, under section 175/409/420/ 468/471 IPC and in course of investigation, the respondent no.11 was arrested and thereafter released on bail. Later on, the present writ petition was filed on 04.02.2016.

¶7The Court is unable to find fault with the respondent no.11 in not clearly spelling out his defence as there is every likelihood that any statement made therein could have been used against him in the criminal proceeding, if any, arising out of Belsor P.S. Case No. 107/2015, which would have otherwise infringed the right of the petitioner to remain silent in a criminal proceeding.

¶8Having noted that the respondent no.11 is being prosecuted, amongst others, for offence of criminal breach of trust, cheating, forgery and Page No.# 6/6 using as genuine a forged document, which are the essential ingredients of sections 409/420/468/471 IPC, the Court is of the considered opinion that unless the documents produced by the respondent no.11 for seeking employment in the petitioner no.1 college is actually declared to be fake, this Court in exercise of jurisdiction under Article 226 of the Constitution of India would be a loath to express its views on the correctness of a document which is presently in scrutiny before the competent Court exercising jurisdiction under the Code of Criminal Procedure. Therefore, as the purported matriculation certificate of the respondent no.11 is a subject matter of police investigation, this Court is not inclined to entertain this writ petition to adjudicate the issue which is the subject matter of adjudication of trial of Belsor P.S. Case No. 107/2015.

¶9Accordingly, this Court is inclined to close this writ petition. However, in the event, the status of document which is being examined in the Belsor P.S. Case No. 107/2015 is found to be fake, it would be open to the petitioner to take appropriate steps as he may be so advised in accordance with law.

¶10In view of the discussion above, there is no necessity to deal with the case of K. Thimmappa (supra), cited by the learned counsel for the petitioners.

¶11There shall be no order as to cost.

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010205472016 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo:oWP(C)/977/2016 UTTARoKAMPITHoMAHAVIDYALAYAoSR.oandoANR. REP.oBYoITSoPRESIDENToOFoTHEoGOVERNINGoBODYoOFoTHEoCOLLEGE oSHRIoKANAKoCH.oDEKAoP.O.oJAGARAoDIST.NALBARI oASSAM oPINo-781310. 2:oDR.oPANKAJoKUMARoROY IN-CHARGE oPRINCIPAL/SECRETARY oUTTARoKAMPITHoMAHAVIDYALAYAoSR.oP.O.oJAGARAoDIST.oNALBARI oASSAMoPINo-o781310. oVERSUS THEoSTATEoOFoASSAMoANDo11oORS REP.oBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.oOFoASSAM oHIGHERoEDUCATIONoDEPARTMENT oDISPUR oGUWAHATI-o781006 oASSAM. 2:THEoDIRECTOR HIGHERoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-o781019 oASSAM. o3:THEoDEPUTYoCOMMISSIONER NALBARI-CUM-CHAIRMAN oDIST.oSCRUTINYoCOMMITTEE oNALBARI oASSAMoPINo-o781335. o4:THEoINSPECTORoOFoSCHOOLS Page No.# 2/6 NALBARI-CUM-MEMBER SECRETARY DISTRICT SCRUTINY COMMITTEE NALBARI ASSAM PIN - 781335. 5:THE HEADMASTER GANGAPUKHURI BARKURIHA HIGH SCHOOL P.O. BARKURIHA DIST. NALBARI ASSAM PIN -781348. 6:THE SECRETARY TO THE GOVT. OF ASSAM FINANCE ESTABLISHMENT B DEPARTMENT DISPUR GUWAHATI- 781006 ASSAM. 7:THE SECRETARY TO THE GOV.T OF A SSAM PENSION and PUBLIC GRIEVANCES DEPARTMENT DISPUR GUWAHATI-781006 ASSAM. 8:THE SUPERINTENDENT OF POLICE NALBARI DIST. NALBARI ASSAM PIN - 781335. 9:THE ADDL. DIRECTOR GENERAL OF POLICE VIGILANCE and ANTI CORRUPTION ASSAM SRIMANTAPUR GUWAHATI PIN - 781032. 10:THE SECONDARY EDUCATION BOARD OF ASSAM SEBA REP. BY ITS SECRETARY BAMUNIMAIDAM DIST. KAMRUP METRO ASSAM PIN - 781022. 11:DR. TARUN SARMA S/O LT. RAM CHANDRA SARMA R/O VILL- BIDYAPUR BYE LANE NO. 7 NEAR MNC BALIKA MAHA BIDYALAYA P.O.NALBARI P.S. NALBARI DIST. NALBARI ASSAM PIN - 781335. 12:THE BRANCH MANAGER Page No.# 3/6 STATE BANK OF INDIA NALBARI BRANCH P.O. and P.S. NALBARI DIST.NALBARI ASSAM PIN - 781335. ------------ Advocate for : MS.J KALITA Advocate for : SC FINANCE R6 appearing for THE STATE OF ASSAM AND 11 ORS BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA