Gauhati High Court Finds Erroneous Interpretation Of Law | Quashes Revocation Of Provincialisation And Removal Of Assistant Teacher
Safiya Malik
The High Court of Guwahati Single Bench of Justice Kardak Ete quashed the impugned order dated 15 November 2018 issued by the Commissioner & Secretary to the Government of Assam, Elementary Education Department. The Court held that the revocation of the cancellation of provincialisation in respect of one teacher and removal of another from service had been arrived at based on an erroneous interpretation of statutory provisions. Consequently, the impugned order was set aside and the writ petition was allowed.
The petitioner, appointed as a third Assistant Teacher of Amaitilla Lower Primary School on 10 February 2005 by the School Managing Committee (SMC), continued in service without interruption. The school, having satisfied the criteria under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, was brought under the purview of provincialisation, regularising the services of eligible employees with effect from 1 January 2013.
The respondent No.8 was earlier appointed as a second Assistant Teacher of the same school on 15 March 1994. The SMC, citing habitual absenteeism, resolved on 27 April 2013 to terminate the services of the respondent No.8 and subsequently elevated the petitioner to the second Assistant Teacher post.
Following scrutiny, the District Elementary Education Officer recommended the petitioner’s provincialisation. However, by an order dated 21 January 2014, the Director of Elementary Education provincialised the respondent No.8’s services instead. The petitioner challenged this in WP(C) 1086/2014, resulting in the quashing of the order and direction to consider the petitioner for provincialisation.
On appeal by the respondent No.8 in WA 116/2015, the Division Bench noted that a status quo had been ordered and observed the necessity to verify the legitimacy of the termination and competing claims. It directed the Commissioner & Secretary of Elementary Education to determine whether the respondent No.8’s service had been properly terminated and which of the claimants deserved provincialisation. Both parties were to be heard, and the exercise was to be completed expeditiously.
Pursuant to this directive, the Commissioner & Secretary issued an order dated 15 November 2018. This order revoked the earlier cancellation of provincialisation in respect of the respondent No.8 and removed the petitioner from service. The stated basis for this action was that the SMC’s resolution dated 27 April 2013 terminating the respondent No.8 was in violation of Section 6 of the Act of 2011, which divests SMCs of authority following provincialisation.
The petitioner challenged this order, asserting that the termination of respondent No.8 predated the notification of provincialisation issued on 27 September 2013. As such, he argued that the SMC had authority at the relevant time, and the Commissioner’s order was premised on an incorrect reading of the law.
In support of this argument, the petitioner contended that provincialisation became operative only upon issuance and communication of the notification, not from its retrospective effective date. He relied on established judicial principles including the Supreme Court's decision in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, to argue that official orders bind parties only upon communication.
The State respondents maintained that the school had been provincialised with effect from 1 January 2013 and the SMC lacked authority to terminate any teacher thereafter. The order dated 15 November 2018 was said to have been issued in compliance with the Division Bench’s instructions, considering the seniority of respondent No.8 and his initial appointment in 1994.
Respondent No.8 argued that he was senior to the petitioner and that his termination was never officially communicated but merely mentioned in SMC resolutions. It was further submitted that allegations of irregularity were unsupported and that the record showed regular service and receipt of grant-in-aid up to 2011. The respondent also pointed to allegations that the Head Teacher, who was the petitioner’s brother, may have manipulated records to favour the petitioner.
The Court examined the sequence of events, documentary materials, statutory provisions, and judicial precedents to determine the legality of the impugned action.
The Court recorded that: “Perusal of the impugned order as recorded above clearly shows that the revocation of the order dated 11.05.2015 cancelling the provincialisation order in respect of the respondent No.8 and the removal of the petitioner as Assistant Teacher of the said school is on the ground that the SMC of the said school had terminated the service of the respondent No.8 vide resolution dated 27.04.2013 in violation of Section 6 of the Act of 2011.”
Justice Kardak Ete stated: “It appears that the Commissioner & Secretary to the Govt. of Assam, Elementary Education Department, has not taken into consideration other relevant aspect, but heavily rest his decision on the purported violation of Section 6 of the Act of 2011.”
On the timing of the termination, the Court noted: “Thus, the Superintendence and control of the said school would vest on the State Government from the date of publication of notification dated 27.09.2013 although the provincialisation is w.e.f. 01.01.2013.”
The Court held that, in its view, the School Managing Committee had the power and authority on 27 April 2013 to terminate the service of the petitioner based on its resolutions.
Addressing the legal principle of communication, the Court referred to the precedent in Bachhittar Singh v. State of Punjab, “wherein, it has held that it is of the essence that the order has to be communicated to the person who would be affected by the order before the State and that person can be bound by that order.”
The Court noted that an order cannot be considered final and binding until it is communicated, and until such communication takes place, it remains merely provisional in character.
It was further observed that this principle, as relied upon by the learned counsel for the petitioner, was referred to and considered in the case of Bipromasz Bipron Trading.
The Court held: “It cannot be said that the action initiated or taken before the issuance of notification of the provincialisation order by the SMC is without any power and authority or is in violation of Section 6 of the Act of 2011.”
The Court held that, in light of the discussions set out in the judgment, the Commissioner & Secretary to the Government of Assam, Elementary Education Department, had issued the impugned order dated 15 November 2018—revoking the cancellation of the provincialisation order dated 11 May 2015 in respect of respondent No.8, Shahibur Rahman, and removing the petitioner from service—on an erroneous interpretation of the provisions of law.
The Court found the order unsustainable and, accordingly, set aside and quashed the impugned order dated 15 November 2018. The writ petition was allowed and disposed of, with no order as to costs.
Advocates Representing the Parties
For the Petitioners: Mr. A.K. Dutta, Mr. B. Purkayastha
For the Respondents: Mr. A. Phukan, Standing Counsel, Mr. H.R.A. Choudhury, Mr. H.R. Choudhury, Mr. S. Sutradhar, Mr. J.M. Sulaiman
Case Title: Altaf Hussain v The State of Assam and 7 Ors.
Neutral Citation: GAHC010020082019
Case No.: WP(C)/666/2019
Bench: Justice Kardak Ete
[Read/Download order]
