IN THE GAUHATI HIGH COURT

(High Court of , Nagaland, Mizoram and Arunachal Pradesh)

Misc. Case No. 1273/2014

In WP(C) No. 2788/2013

Sri Hari Chandra Das, S/o Late Ganesh Das, Assistant Teacher, Bholabari Bagicha L.P. School. P.O.- Bholabari, P.S.- Kalaigaon, District: Udalguri, Assam, Pin: 784509. Petitioner

- Versus –

1) The State of Assam. Represented by the Commissioner & Secretary to the Govt. of Assam, Education Department, , - 781006.

2) The Director of Elementary Education, Kahilipara, Guwahati- 781019.

3) The District Elementary Education Officer-cum-Deputy Inspector of Schools, Udalguri, P.O. & P.S.- Udalguri, BTAD, Assam.

4) The Block Elementary Education Officer, Khairabari Block, District- Udalguri, BTAD, Assam

5) The President, Managing Committee/ School Management Committee, Bholabari Bagicha L.P. School, P.O. Bholabari, P.S.- Kalaigaon, District: Udalguri, Assam, Pin: 784509.

6) The Secretary, Managing Committee, Bholabari Bagicha L.P. School, P.O. Bholabari, P.S.- Kalaigaon, District: Udalguri, Assam, Pin: 784509.

MC No. 1273/14 Page 1 of 7 7) The Bodoland Territorial Council, Represented by the Principal-Secretary, Kokrajhar, P.O. & P.S.- Kokrajhar, District: Kokrajhar, Assam.

8) The Director of Education, Bodoland Territorial Council, Kokrajhar, P.O. & P.S.- Kokrajhar, District- Kokrajhar, Assam.

9) Shri Surendra Das, S/o Late Upendra Das, R/o Village- Bholabari Bagicha, P.O.- Bholabari, P.S. Kalaigaon, District: Udalguri, Assam, Pin: 784509.

Respondents

B E F O R E HON’BLE MR. JUSTICE T. VAIPHEI

For the petitioner: Mr. SB Choudhury, Advocate. For the respondents: Mr. RS Chouhan, Mr. SMT Chistie, SC, Education

Date of Hearing: 06.08.2014 Date of Judgment: 22-08-2014

JUDGMENT & ORDER

The question to be determined in this miscellaneous

application is whether the interim order dated 23-5-2013

passed by this Court in the connected writ petition is liable

to be vacated or not?

2. The applicant is the respondent No. 9 in the

connected writ petition filed by the opposite party/writ

MC No. 1273/14 Page 2 of 7 petitioner (“petitioner” for short) herein. In the writ petition,

the petitioner states that the school under the name of

Bholabari Bagicha L.P. School was established in the year

1985 with two teachers i.e. one Headmaster and one

Assistant Teacher. The petitioner was appointed as

Assistant Teacher by the Managing Committee of the school

on 23-5-1985 and claims to be the founder teacher. He has

since 1985 been regularly and continuously teaching the

students of Bholabari Bagicha L.P. School as the Assistant

Teacher. According to the petitioner, the Headmaster of the

School, who is also the Secretary of the Managing

Committee (respondent 6), keeps the attendance register

and other documents of the school under his control and

keeps them in his house instead of the school: the teacher

is allowed to sign the attendance register as and when he

likes. The petitioner was paid `4,000/- per month, and had

received `48,000/- in the year 2009 and another `48,000/-

in the year 2011 as Financial Assistance from the

Government.

3. It is the further case of the petitioner that the

respondent No. 6, with a view to deprive the petitioner of

the financial assistance for the year 2011-12, which was

already released by the , showed him

absent from school despite the repeated requests made by

him to allow him sign the attendance register as he has

been regularly attending the school. This has been done by

him with the intention of giving the financial assistance to

MC No. 1273/14 Page 3 of 7 the respondent No. 9; the latter has illegally received the

financial assistance. The complaints made by him to this

effect to various authorities including the District

Elementary Education Officer, Udalguri, did not yield any

result. On the contrary, the respondent No. 6 issued the

letter dated 20-9-2012 terminating the service of the

petitioner. It is the case of the petitioner that in the DISE

Code allotted to the school also, his name was initially

shown as the Assistant Teacher, but was subsequently

struck off and substituted by the name of the respondent

No. 9, who was appointed as the additional Assistant

Teacher only on 10-4-1996. Aggrieved by this, the

connected writ petition was filed by him for directing the

respondent authorities to regularize the service of the

petitioner as Assistant Teacher of the school upon

provincialization of the school as he is the only Assistant

Teacher in the School and has been rendering service in

that capacity since 1985 without any break in service.

4. This Court by the order dated 23-5-2013 passed the

interim order directing that no provincilzation benefits

should be released to the respondent No. 9 until the next

returnable date. Seeking vacation of the said interim order,

the respondent No. 9 points out that although the

petitioner was appointed as the 1st Assistant Teacher of the

School on 23-5-1985, he had never attended his classes

regularly: in fact, he had hardly attended his classes from

2005 to 2008. He was rather working as the agent for GTF

MC No. 1273/14 Page 4 of 7 (Golden Trust of Finance) for all these years. The notices

sent to the petitioner by the Managing Committee of the

School from time to time for attending his classes were not

even responded to by him.

5. According to the respondent No. 9, he was initially

appointed as the 2nd Assistant Teacher of the School on 10-

4-1996 by the Managing Committee of the School, but

when the petitioner was regularly absent from classes, he

came to be upgraded to the post of 1st Assistant Teacher in

his place vide the appointment letter dated 16-2-2006

issued by the President of the School Managing Committee;

he has since then been regularly rendering service to the

school till now without any break. In all the records

maintained by the school including the DISE Code, his

name is recorded as the 1st Assistant Teacher of the school.

It is the case of the respondent No. 9 that in the year 2009,

the petitioner, all of a sudden, appeared out of nowhere and

forcibly tried to attend the classes in order to receive the

financial assistance meant for the 1st Assistant Teacher. He

even went to the extent of threatening the school

authorities that if he was not allowed to resume his duties,

he would poison the food stuff of the children/pupil, for

which an FIR was lodged with the Officer-in-Charge of

Kalaigaon Police Station on 31-9-2012. A public petition to

that effect was also submitted before the District

Elementary Education, Udalguri (BTAD), Assam, which is

still pending. It is the contention of the respondent No. 9

MC No. 1273/14 Page 5 of 7 that the petitioner, by suppressing of the above facts and

by playing fraud upon this Court, and has even, ipso facto,

managed to obtain the interim order, which is, therefore,

liable to be vacated.

6. On a comparative reading of the pleadings of the

parties and the documents annexed to their respective

pleadings, it is quite apparent at this stage that the writ

petitioner from service in terms of the resolution dated 16-

2-2009 passed by the Managing Committee of the school

and that ever since 28-2005, the Managing Committee had

been noting the regular absence of the writ petitioner from

the school vide the resolutions dated 28-5-2005, 12-8-2005

and 12-7-2007. Resolution No. 1 dated 15-9-2012 of the

Managing Committee of the School also noted the threat

made by the writ petitioner over mobile even after his

removal from service and of his attempt to forcibly enter the

school premises to resume teachings in the school thereby

disturbing the school atmosphere, etc., for which an ejahar

was immediately lodged with Kalaigaon PS. On the other

hand, vide Annexure-D series, it can be seen that the name

of the applicant is recorded in the DISE Code for the year

2009-2010. However, there is nothing on record to show at

this stage that the writ petitioner was ever reinstated to the

post of 1st Assistant Teacher after his removal from service

on 12-6-2009. As the writ petitioner, in the face of denial by

the respondents and the applicant, the burden of proof is

upon him to establish that he was reinstated to his post

MC No. 1273/14 Page 6 of 7 after 12-6-2009. Stay order is granted to a party on his

showing sufficient materials for making out a prima facie

case in the first place. Apart from making bare statement

that he is the 1st Assistant Teacher of the school without

any materials to substantiate his claim, the question of

granting interim order to him does not arise. This Court

had earlier issued the interim order in question when it had

not been acquainted with the version of the applicant. In

this view of the matter, the interim order has no reason for

its continuance and, is, therefore, liable to be vacated.

7. For the reasons stated in the foregoing, this

miscellaneous application is allowed. The interim order

dated 23-5-2013 passed by this Court in the connected writ

petition is hereby recalled. Nothing stated in the foregoing

shall, however, be construed as final observations on the

merit of the writ petition, which is yet to be fully heard. The

provincialization of the service of the Applicant as 1st

Assistant Teacher Bholabari shall, however, be made

subject to the outcome of the connected writ petition.

JUDGE

naba

MC No. 1273/14 Page 7 of 7