SMC Retains Disciplinary Powers Until Provincialisation Notification Is Officially Published & Communicated : Gauhati HC

Background Facts

The petitioner was working as an Assistant Teacher at Amaitilla Lower Primary School under the Badarpur Educational Block in Karimganj District, Assam. He was appointed to the post on 10.02.2005 by the School Management Committee (SMC). He had been serving continuously since then. Later, the school was provincialised under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. Therefore, the services of eligible teachers were to be regularised with effect from 01.01.2013. The respondent was appointed as an Assistant Teacher in the same school on 15.03.1994. However, he was found to be habitually absent from duty. In light of his repeated absenteeism, the SMC passed a series of resolutions whereby his service was terminated. Consequently, the petitioner was upgraded to the position of the second Assistant Teacher in the school.

Later, the services of the respondent were provincialised vide order dated 21.01.2014, while the petitioner's name was omitted. Aggrieved by this, the petitioner filed a writ petition challenging the provincialisation of respondent. The writ was allowed by the Court on 17.03.2015, setting aside the provincialisation of respondent and directing the authorities to consider the petitioner's case for regularisation. Therefore, the petitioner's services were provincialised through order dated 11.05.2015.

However, respondent challenged the judgment in an appeal. The Division Bench directed the Commissioner & Secretary to the Department of Elementary Education to examine the matter afresh, giving both parties a fair opportunity to be heard and to determine who rightfully deserved to be provincialised. Therefore, the Commissioner & Secretary passed an order on 15.11.2018 in favour of respondent. The same order also removed the petitioner from service on the ground that the termination of respondent by the SMC was illegal, as the school had already been provincialised with effect from 01.01.2013. Further as per Section 6 of the 2011 Act, the SMC had no authority to take such disciplinary action thereafter.

Aggrieved by the same, the petitioner filed the writ petition praying for quashing the order dated 15.11.2018 and for reinstatement to his post as Assistant Teacher in the school.

It was contended by the petitioner that the termination of respondent was done by the SMC on 27.04.2013, whereas the notification for provincialisation of the school was issued much later on 27.09.2013. Therefore, the SMC still had the authority to take disciplinary action at the time of termination. It was further submitted that although the provincialisation was made effective from 01.01.2013, the legal effect of such a notification begins only from the date it is communicated. Hence, the power and control of the State Government under Section 6 of the 2011 Act, would come into play only after 27.09.2013, not from the backdated effective date.

On the other hand, it was contended by the State respondents that the SMC had no authority to terminate the services of respondent, as the school had already been provincialised with effect from 01.01.2013. It was submitted that once a school is provincialised, as per Section 6, the power to take any disciplinary action against teachers vests with the State Government, and not with the SMC. It was further contended that although the provincialisation notification was issued on 27.09.2013, the effective date mentioned in the order was 01.01.2013. Therefore, the action taken by the SMC on 27.04.2013 to terminate respondent was in violation of the law, as the school had already come under government control from the backdated effective date.

It was also submitted that respondent had been serving in the school since 1994 and was senior to the petitioner. The name of respondent appeared consistently in official records, and he had received his share of the grant-in-aid, indicating that he had been in regular service. It was further pointed out that the inquiry report of the Block Elementary Education Officer, suggested manipulation of records by the Head Teacher (petitioner's brother) to favour the petitioner's appointment and to justify the removal of respondent.

Findings of the Court

It was observed by the Court that Section 6 of the 2011 Act restricts the powers of the School Management Committee (SMC) after provincialisation. Section 6 provides that: The superintendence and control of an educational institution, where the services of employees are provincialized, shall vest in the State Government from the date of publication of the notification, bringing the institution within the purview of the Act. It was held by the court that the Commissioner's interpretation of Section 6 was legally flawed. It was specifically observed that the power of control under Section 6 vests with the Government only from the date of the notification, not from the backdated effective date mentioned in it. It was observed by the court that the school was provincialised w.e.f. 01.01.2013, but the notification was issued only on 27.09.2013. Therefore, on 27.04.2013, when the SMC passed the resolution terminating the service of respondent, it was still the competent authority.

The case of Bachhittar Singh vs. State of Punjab was relied upon by the court wherein it was held that an official order does not take legal effect unless communicated to the person concerned. Further the case of Bipromasz Bipron Trading SA vs. Bharat Electronics Ltd. was also relied upon by the court wherein it was held that the retrospective effect of an order does not override the legal requirement that it must be communicated to become operative.

It was further noted by the Court that the Commissioner had solely relied upon the violation of Section 6 without considering the petitioner's uninterrupted service since 2005, the multiple resolutions of the SMC against the conduct of respondent. Further the report of the Block Elementary Education Officer was also referred by the court, which pointed to irregular attendance of respondent and allegations of record manipulation by the Head Teacher, who was related to the petitioner. It was noted by the Court that instead of resolving these disputed facts, the Commissioner had rushed to a conclusion based solely on the date mentioned in the notification.

It was held by the Court that the that an official order takes effect only when it is served on the person effected. Therefore, it was concluded that the SMC had the authority to terminate the services of respondent, and the petitioner's appointment was not unlawful. It was held by the court that the order dated 15.11.2018 was legally unsustainable and suffered from a misapplication of statutory provisions. Therefore, it was set aside by the court.

With the aforesaid observations, the writ petition was allowed.

Case Name: Altaf Hussain vs. The State of Assam & Ors.

Case No.: WP(C) No. 666 of 2019

Counsel for the Petitioner: B.D. Das, Senior Advocate assisted by B. Purkayastha

Counsel for the Respondents: A. Phukan, H.R.A. Choudhury, Senior Advocate assisted by H.R. Choudhury