Page No.# 1/7 GAHC010097782021 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3285/2021 BABUL BORAH S/O LT. GHANA BORAH, R/O VILL. NAPAMUA, P.O. CHUNGI, DIST. JORHAT, ASSAM, PIN-785616 VERSUS THE COMMISSIONER AND SECRETARY AND 6 ORS. DEPPT. OF ELEMENTARY EDUCATION GOVT. OF ASSAM, DISPUR GHY-6 2:THE STATE LEVEL SCRUTINY COMMITTEE REP. BY THE DIRECTOR OF ELEMENTARY EDUCATION KAHILIPARA GHY-19 KAMRUP M ASSAM 3:THE DISTRICT SCRUTINY COMMITTEE JORHAT DISTRICT REP. BY THE DEPUTY COMMISSIONER JORHAT DIST. 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER JORHAT DIST. 5:THE BLOCK ELEMENTARY EDUCATION OFFICER TITABOR DIST. JORHAT 6:DEVANONDA BARUAH TUTOR SCIENCE OFFICE OF THE NAPOMUA ME SCHOOL VILL. NAPOMUA P.O. CHUNGI BLOCK TITABOR DIST. JORHAT Page No.# 2/7 ASSAM PIN-785616 7:HIRAMONI BORAH ERSTWHILE HEAD MASTER NAPOMUA ME SCHOOL VILL. NAPOMUA P.O. CHUNGI BLOCK TITABOR DIST. JORHAT ASSAM PIN-78561 Advocate for the Petitioner : MR. B K DAS, Advocate for the Respondent : GA, ASSAM, MR. P TALUKDAR (R7),MR. R PHUKAN (R-6),SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER 17.03.2025 Heard Mr. B.K. Das, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned counsel for the Elementary Education Department. Mr. P. Saikia, learned counsel appears for the Deputy Commissioner, Jorhat, while Ms. C.M. Deka, learned counsel appears for the respondent No.6. 2. The petitioner has prayed for provincialization of his service with immediate effect and to set aside and quash the provincialisation of the services of the respondent No.6 as a Science Tutor. 3. The petitioner’s case is that he was appointed as an Assistant Teacher of Science in Napomua M.E. School on 24.09.1998, whereas the respondent No.6 was appointed as a Science Teacher in the same school on 13.07.2011. In view of the fact that the petitioner was senior to the respondent No.6 as a Science Page No.# 3/7 Teacher, the respondent No.6 could not have been provincialized by ignoring the claim of the writ petitioner. 4. Ms. C.M. Deka, the learned counsel for the respondent No.6 submits that the respondent No.6 joined the Napomua M.E. School as a Science Teacher on 13.10.2010, while the petitioner joined as a temporary Science Teacher on 24.09.1998. She submits that the Science Teacher Jitu Borah had left the school temporarily for completing his graduation. In place of Jitu Borah, the petitioner was appointed on 24.09.1998. On 25.03.2001, Jitu Borah rejoined as a Science Teacher, due to which the petitioner was posted as Assistant Teacher of the school. On Jitu Borah resigning from his post of Science Teacher on 03.06.2010, the petitioner was appointed as a Science Teacher w.e.f. 13.10.2010. 5. Ms. C.M. Deka, the learned counsel for the respondent No.6 further submits that the petitioner had approached the Educational Tribunal, Jorhat by filing Educational Tribunal Case No.02/2020 praying for provincialisation of his service. However, the same Educational Tribunal Case No.02/2020 was dismissed as withdrawn by the learned Tribunal on 23.11.2021. Ms. C.M. Deka thus submits that when the provincialisation of the service of the respondent no.6 has been made vide order dated 05.02.2021 and that the Educational Tribunal Case No.02/2020 had been withdrawn vide order dated 23.11.2021 passed by the Educational Tribunal, Jorhat, the petitioner could not have prayed for provincialising his service by way of the present writ petition. Further, no prayer has been made by the petitioner for setting aside and quashing the provincialisation of the service of the respondent no.6, vide order dated 05.02.2021. Page No.# 4/7 6. Mr. P. Saikia, leaned counsel for the Deputy Commissioner, Jorhat submits that as per the letter dated 18.05.2023 issued by the District Elementary Education Officer, Jorhat, a verification was made and it was found that the petitioner had joined as a Science Graduate Teacher in the said school on 24.09.1998, while the respondent no.6 had joined his post on 13.07.2011 and as such, the petitioner was senior to the respondent no.6. As entry of the respondent no.6 in the school was after 31.12.2010, his service would not come under the purview of the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the “2017 Act”). 7. The petitioner’s counsel submits that as there was no question of compromise in service matters, there was no question of withdrawal of the Educational Tribunal Case No.02/2020. Further, as the service of the respondent no.6 had been provincialised vide order dated 05.02.2021, the petitioner chose to challenge the same by way of the present writ petition. 8. I have heard the learned counsels for the parties. 9. The issue to be decided is whether the service of the petitioner or the respondent no.6 should be provincialised as per the 2017 Act. The fact of the matter is that the petitioner had prior to approaching this Court, submitted Educational Tribunal Case No.02/2020 before the Educational Tribunal, Jorhat for provincialisation of his service. The said case was dismissed as withdrawn, vide order dated 23.11.2021, which is as follows : Page No.# 5/7 “Case record is put up before me today on the strength of petition No. 508/2021 dated 23/11/2021, filed by the learned counsel for the petitioner/plaintiff wherein it has been stated that a compromise has been made between the petitioner/plaintiff and the defendants/respondents whereby for the sake of peace and harmony between the parties, the plaintiff/petitioner has decided not to carry on this case and to withdraw this case forthwith. Heard learned Counsel for the petitioner/plaintiff. For the ends of justice, this case is dismissed on withdrawal from the side of the petitioner/plaintiff.” 10. This Court finds that the petitioner could have challenged the provincialisation of the service of the respondent no.6 in Educational Tribunal Case No.02/2020 or by filing a separate case before the Educational Tribunal, Jorhat, if he was of the view that the withdrawal order was wrong. As the Educational Tribunal, Jorhat is the competent authority to decide such an issue, the petitioner could have filed a review or put to challenge the order dated 23.11.2021 before this Court. In any event, the withdrawal of the Educational Tribunal Case No.02/2020 by the petitioner has attained finality as on date and it has ended the prayer for provincialisation of the petitioner’s service. If the petitioner was of the view that the withdrawal of Educational Tribunal Case No.02/2020 had been wrongly made by the Educational Tribunal, Jorhat, the same could have been put to challenge by the petitioner, by approaching the learned Educational Tribunal, Jorhat, stating that what had been recorded in the order dated 23.11.2021 was wrong. However, nothing of that sort has been done by the petitioner. The petitioner has instead filed the present writ petition praying for provincialisation of his service, without making a challenge to the provincialisation of the service of the respondent no.6, or to the order dated Page No.# 6/7 23.11.2021 passed by the learned Tribunal. 11. In the case of State of Maharashtra vs. Ramdas Srinivas Nayak, reported in (1982) 2 SCC 463, the Supreme Court has held that the Judges record is conclusive and none can claim to contradict it, except before the Judge himself. In terms of the decision of the Supreme Court, it is clear that there has to be some definiteness/finality given to an order, i.e., the correctness of the order cannot be challenged without approaching the authority/Court which passed the order. Otherwise, no case could have an ending, whether it be before a Tribunal or the Court, if a challenge to the correctness of the contents of an order is allowed to be considered in another Court. When finality has been given to a case in terms of an order made by a Tribunal or a different Court, on the basis of oral submissions made by the counsels for the parties, this Court is not in a position to say that the submissions made by the parties counsels were not correct or were false. The submissions of the counsels before the Tribunal and the Court would only be known to the said Tribunal or the Court. The orders passed by the learned Tribunal and the Court have to be honoured and respected or else there would be chaos, if the orders are challenged simply on the ground that such submissions had not been made. The recording of submissions made by the learned Tribunal and the Court can be contradicted only before the same Court/Authority. 12. In view of the decision of the Supreme Court in Ramdas Srinivas Nayak (supra), this Court is of the view that the order dated 23.11.2021 passed by the Court of the District Judge, Jorhat in Educational Tribunal Case No.02/2020 would have to be accepted, especially when no challenge has been made to the same. As the petitioner had withdrawn his petition for Page No.# 7/7 provincialisation of his service after provincialisation of the service of the respondent no.6, the petitioner cannot be allowed to make a subsequent challenge by way of the present writ petition, where he has prayed for provincialisation of his service only. 13. The writ petition is accordingly dismissed. 14. Interim order passed earlier stands vacated. JUDGE Comparing Assistant