WP(C) 6061/2007 BEFORE HONBLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The raging controversy bears on the issue of amalgamation of the Zoo Road Vidyap ith High School (hereafter referred to as the ’High School’) and the Zoo Road Vi dyapith Middle English School (hereafter for short referred as the ’Middle Schoo l’). The parties were locked in a series of litigations preceding the instant p roceedings and though, a resolution appeared to be a possibility in terms of the judgment and order dated 13.06.2007, passed in W.P(C) 6683/2005 and W.P(C) No. 1206/2005, a fresh bout has surfaced. Whereas, W.P(C) No. 6061/2007, witnesses a challenge to the orders dated 07.11.2007 and 12.11.2007, passed by the Deputy Secretary to the Government of Assam, Education Department and the Director of S econdary Education, Assam, respectively deciding against the amalgamation of the aforementioned two institutions, in W.P(C) No. 799/2008, the order dated 18.02. 2008 of the Commissioner & Secretary to the Government of Assam, Education (Seco ndary) Department, directing amalgamation thereof, has been assailed. It is submitted at the Bar that W.P(C) No. 6061/2007, in face of the order impug ned in W.P(C) No. 799/2008, has been rendered infructuous. This Court by order dated 03.03.2008, passed in W.P(C) No. 799/2008, directed maintenance of status quo with regard to the arrangement vis-à-vis the Schools involved as on that dat e. 2. I have heard Mr. AM Mazumdar, Senior Advocate assisted by Mr. M Nath, and Mr. DP Borah, Advocate for the petitioner in W.P(C) No. 799/2008, Mr. MR Pathak, learned Standing counsel for the official respondents and Mr. AK Gosw ami, Senior Advocate assisted by Ms. B Sarma, Advocate for the respondent No. 5 therein. 3. The basic facts are indispensable and, therefore, have to be set out in brief. The High School was established in the year 1981 and was provinc ialised in 1991. Prior thereto, the Middle School was established in the year 1 977 and was accorded provincialisation by the Government of Assam in the year 19 85. Both the Schools are located in the same campus and are functioning from th e same building. The High School Managing Committee claims that both the School s availed the combined common room for teachers and have common signboard, notic e board etc. According to it, these Schools solemnize the annual sports and oth er events jointly. The Government of Assam issued a notification dated 16.07.1983 for amalgamation of High Schools and Middle Schools in the State situated in the same campus. Th e notification, however, inter alia, mentioned that such amalgamation would be c arried out if the Managing Committees of both the High School and the Middle Sch ool agreed thereto by a resolution to the said effect. In a press release that was issued on behalf of the Government on 23/24.01.1999, it was amongst others, stipulated that after the amalgamation of such schools, the post of Headmaster o f Middle English/Middle English Madrassa would be converted/upgraded to the post of Assistant Headmaster in the amalgamated High English/High English Madrassa. It further provided that if the Headmaster of the Middle English/Middle English Madrassa is a graduate then he/she would be upgraded to the post of Assistant H eadmaster/Assistant Headmistress and if not then he/she would be transferred/adj usted against any other High English/High English Madrassa. Thereby, the gradua te teachers of the amalgamated High English/High English Madrassa were decided t o be upgraded to the graduate post with full pay, promotion and other service be nefits as per the extant Rules. Vide letter No. B(3)S.340/2000/pt.II/76, dated 08.09.2005, the Deputy Secretary to the Government of Assam, Education Departmen t, conveyed the approval of the Government of Assam to the amalgamation of the H igh school and the Middle school involved herein with immediate effect, subject to the fulfillment of the terms and conditions referred to therein. Pursuant th ereto, the Director of Secondary Education, Assam by his order dated 15.09.2005 gave effect to the aforementioned decision. 4. At this, the Managing Committee of the Middle School instituted W.P(C) No. 6683/2005, impeaching the said decision. Smti. Junu Goswami, Secreta ry of the above Managing Committee also in her individual capacity instituted W. P(C) No. 1206/2006. The Managing Committee of the High School impleaded as a re spondent in the said petitions filed its affidavit (s). While endorsing the dec ision impugned, it was asserted therein inter alia, that joint decision of the M anaging Committee of both the schools approving amalgamation thereof, had been d uly taken in a joint meeting dated 14.09.2003, and accordingly forwarded to the Government on 28.04.2005. 5. In an additional affidavit filed on behalf of the Managing Commi ttee of the High School, the date of the meeting was, however, mentioned as 21.0 9.2003. The High School Managing Committee in W.P(C) No. 6061/2007, has in fact endorsed the date of such joint meeting to be 21.09.2003. The Director of Seco ndary Education, Assam, in his affidavit filed in W.P(C) No. 1206/2006, affirmed the approval of the Managing Committees’ of the Schools attesting the amalgamat ion and referred to the representation dated 28.04.2005 to the said effect of th e said Managing Committees. 6. Both these writ petitions were analogously heard and disposed of by a learned Single Judge of this Court on 13.06.2007, directing a fresh exerci se to be undertaken in the presence of a responsible officer of the Education De partment in order to elicit the views of the members of the Managing Committees as well as the teaching staff of the preamalgamated Middle and High Schools. It was, further, observed that if on conducting the fresh process, it was determin ed that the views of the Managing Committee members and the teaching staff are o verwhelmingly in favour of amalgamation, the impugned decision of amalgamation a nd the consequential order would attain finality. However, it was ruled that if the majority view was against the amalgamation and the approval was found lacki ng, the departmental authorities would take necessary steps for undoing the amal gamation exercise ordered on 08.09.2005, notwithstanding the fact that the schoo ls are functioning as a single entity since that date. 7. The parties are one in affirming that thereafter meetings were h eld on 29.08.2007 and 30.08.2007, administered by the Director of Secondary Educ ation, Assam. Whereas, the members of the Managing Committee and teaching staff of the Middle School prior to amalgamation were summoned on 28.09.2000 those of the High School were heard on 30.08.2007. According to the High School Managin g Committee, on the completion of the exercise, a total of 21 Managing Committee members and teachers had consented to the amalgamation, a view opposed by 15, w ho disapproved the amalgamation. To the contrary, however, the Managing Committ ee of the Middle School with reference to a report dated 24.09.2007, submitted b y the Director of Secondary Education, Assam drawn up on the basis of the proces s undertaken, seeks to contend that the same discloses that the normal procedure was not followed in the earlier process of amalgamation of the Schools as per t he Government guidelines. It, however, avowed that out of nine (9) members of t he Managing Committee of the Middle School, seven (7) voiced against the amalgam ation and two in favour thereof. Similarly, out of 14 members of the staff, nin e (9) were against amalgamation and four (4) in favour thereof. The Middle Scho ol Managing Committee, however, conceded that majority of the members of the Man aging Committee of the High School were in favour of the amalgam. 8. In the above backdrop, the letter dated 07.11.2007, was issued b y the Deputy Secretary to the Government of Assam, Education (Secondary) Departm ent, revoking the order of amalgamation dated 08.09.2005 and the Schools were or dered to continue to function as separate entities. The Director of Secondary E ducation, Assam, was thereby required to initiate an appropriate action against the Headmaster of the High School for submitting false and fabricated affidavit in W.P(C) No. 6683/2005, as well as a false proposal for amalgamation of the Sch ools before the Government on 28.04.2005. The Director of Secondary Education, Assam, incompliance thereof, issued the order dated 12.11.2007, implementing the aforesaid directions. By the order dated 18.02.2008, of the Commissioner & Sec retary, Government of Assam, Education (Secondary) Department, these two orders by implications, stand superceded, as thereby the Schools have been directed to be amalgamated with immediate effect. 9. Mr. Mazumdar, has assertively urged that the order dated 07.11.2 007, canceling the amalgamation having been passed on an appropriate considerati on of the revelations in the report dated 24.09.2007, prepared on the basis of t he exercise conducted incompliance of the judgment and order dated 13.06.2007, n o interference therewith was called for and, therefore, the impugned order dated 18.02.2008, is patently illegal and unsustainable in law. According to the lea rned Senior counsel, the decision in favour of amalgamation totally overlooks th e findings recorded in the report dated 24.09.2007 as well as the supporting mat erials and is, therefore, absurd and perverse as well. The impugned decision no t being borne out by contemporaneous facts, is visibly erroneous and is liable t o be set aside, he urged. 10. Mr. Pathak, the leaned Standing counsel, with reference to the o fficial records has endorsed the impugned decision, contending that it was warra nted as the earlier order dated 17.11.2007, was based on a misreading of the pro ceedings held in pursuance of the judgment and order dated 13.06.2007 of this Co urt. The learned Standing counsel also placed before this Court the relevant of ficial records for perusal. 11. Mr. Goswami, argued that though the exercise yielding the report dated 24.09.2007, demonstrates exploration into areas not intended by this Cour t, the essence thereof, projects overwhelming majority in favour of the amalgama tion of the Schools and, therefore, the order dated 07.11.2007 to the contrary, is apparently indefensible. This Court having directed in pith to freshly elici t the views of the members of the Managing Committees and the teaching staff of the preamalgamated Schools on the issue of amalgamation, survey of the anteceden t facts, was plainly inessential. The report dated 24.09.2007, having amply dis closed that the members of the Managing Committee and the teaching staff of the Schools were in majority in favour of the amalgamation, the impugned order dated 18.02.2008, have been rightly passed, he urged. 12. The pleadings of the parties and the arguments advanced, have re ceived the cautious attention of this Court. The text of the judgment and order dated 13.06.2007, manifestly evince an exhaustive consideration of the rival st ands of the parties on the question of amalgamation of the Schools. The operati ve portion thereof, which in my view, was to unambiguously guide the departmenta l authorities concerned to prosecute the fresh process as ordered deserves to be extracted as hereunder: - 21. In the context of the controversy on the issue of consent of the Managing C ommittee of the Schools, I deem it appropriate, particularly, in view of the com munication dt. 7.6.05 of the Deputy Secretary of the Education Department addres sed to the Director, Secondary Education, to direct the carrying out the exercis e in the two Schools, in terms of the said Govt. communication dt. 7.6.05. In v iew of the conflicting claims, it would be appropriate to direct that proceeding s are held in presence of a responsible officer of the Education Department, to elicit the views of the members of the Managing Committee as well as teaching st affs of the amalgamated ME and High School. 13. It is more than apparent from the above directions of this Court that the purpose thereof, was to elicit the views of the members of the Managin g Committee as well as the teaching staff of the preamalgamated Middle and High Schools to provide a quietus to the lingering debate between the parties on the related issue. This Court did not intend any analysis or scrutiny of the anteri or facts leading thereto. This course was adopted to remove any speck of confus ion in the matter and, therefore, the exercise ordered, was to determine afresh the views of the members of the Managing Committee and the teaching staff of the preamalgamated High and Middle Schools for and against the amalgamation thereof . In other words, the prior facts were not intended to have any decisive bearin g on the ultimate conclusion based on the drill ordered. The deductions were th us required to be made exclusively on the basis of the views expressed by the me mbers of the Managing Committee and teaching staff of the preamalgamated High an d Middle Schools. 14. The official records being File No. B(3)S.340/2000/pt.II, reveal that in compliance of the directions of this Court, a hearing was conducted by the Deputy Secretary to the Government of Assam, Education (Sec) Department, and the Deputy Director of Secondary Education, Assam on 29.08.2007 and 30.08.2007, which was attended to by the members of the Managing Committee and teaching sta ff of both the preamalgamated Schools. The report dated 24.09.2007, prepared on the basis of the proceedings held, disclose that the members of the Managing co mmittee and the teaching staff of the Middle School attended the hearing on 29.0 8.2007 and those of the High School on 30.08.2007. It transpires from the said report that nine (9) members of the Managing Committee and thirteen (13) of the teaching staff of the preamalgamated Middle School presented themselves before t he aforementioned departmental authorities, Smti. Junu Goswami, the Headmistress of the School being common in both the groups. The breakup of the opinions in favour of and against amalgamation are as hereinbelow: - ME SCHOOL Managing Committee Sl. No. Name Designation Opinion in the written statement 1. Pratap Dutta President Against amalgamation 2. Junu Goswami Member Secretary Do 3. J.M. Bujarbaruah Donor For amalgamation 4. Sabita Talukdar Member Against amalgamation 5. Anil Medhi - Do - For amalgamation 6. Anjana Devi - Do - Against amalgamation 7. Chandra Nath Bora - Do - - Do - 8. Subesh Ch. Sarkar - Do - - Do - 9. Rumi Begum - Do - - Do - Sl. No. Name Designation Opinion 1. Junu Goswami HM Against 2. Anita Talukdar AT Against 3. Anjumoni Baruah AT Do 4. Jemy Borgohain AT Do 5. Leitha Boro BT Do 6. Mousumi Pathak OBBT Do 7. Manoj Lahakar OBBT Do 8. Aparajita Devi AT For amalgamation 9. Nitima Devi AT Do 10. Dhaneswar Kalita AT Against 11. Mrs. Shobham Chakraborty AT (Rtd) Do 12. Sashi Bhushan Chakravorty AT For amalgamation 13. Jatindra Medhi AT For amalgamation HIGH SCHOOL Managing Committee 1. Capt. JM Bujarbaruah - President. 2. Ramakanta Kalita - HM & Member Secretary. 3. Chandra Kr. Barua - Teaching Repr. 4. Ratneswar Kalita - Guardian Repr. 5. Sambhu Dutta - Govt. nominee. 6. Junu Goswami - Female member. Teaching Staff 1. Ramakanta Kalita - HM. 2. Chandra Kt. Sarma - AT. 3. Girindra Nath Deka - AT. 4. Gunalata Talukdar - AT. 5. Dipika Dutta - AT. 6. Pranita Saikia - AT. 7. Gita Kalita - AT. 8. Anima Tahbildar - AT. 9. Kabindra Kr. Mahanta - AT. 10. Minakshi Barman - AT. The report disclosed as follows: - Middle School Managing Committee For Against 2 7 Middle School Teaching Staff For Against 4 9 Though, the report recorded that all the members of the Managing Committee of t he preamalgamated High School favoured the amalgamation and that the members of the teaching staff were also in favour thereof, it did not reveal the actual fig ures for reasons not discernible. 15. The records divulge that the concerned authorities on a perusal of the report formed an impression that the Schools had been amalgamated in vio lation of the prevalent Rules and procedures and, therefore, decided to revoke t he order dated 08.09.2005, approving the merger. A perusal of the related notes proclaims an opinion that the majority view expressed in the hearing, was again st the amalgamation necessitating the annulment of the order dated 08.09.2005 in terms of the directions of this Court. The order dated 07.11.2007, referred to hereinabove, was thereafter passed by the Deputy Secretary, Government of Assam , Education (Sec.) Department. The order dated 12.11.2007 of the Director of Se condary Education, Assam, was only consequential thereto. 16. It appears from the records that thereafter the issue was review ed at the level of the Commissioner & Secretary, Education (Elementary) Departme nt, who in his note dated 25.01.2008, forwarded to the departmental Minister, in dicated that on a scrutiny of the records pertaining to the hearing, 20 persons were found in favour of the amalgamation and 15 against, whereas 2 did not expre ss any opinion. The note also testifies the consideration of the statements ma de by the persons in the hearing expressing their views. This authority express ed that though in the hearing, majority was in favour of the amalgamation, the n ote acted upon earlier culminating in the order dated 07.11.2007, suggested that the majority was against the amalgamation. The recommendation for setting asid e the order dated 07.11.2007 and restoring the original order of amalgamation ha ving been approved at the highest administrative level, the impugned order dated 18.02.2008 was passed. 17. On a perusal amongst others of the statements of the members of the Managing Committee and the teaching staff of the preamalgamated High School, it appears that except Shri Gunalata Talukdar (Sl. No. 4 in the list of the tea ching staff of the High School), who attended the meeting, all others had aired their views in favour of amalgamation. Out of the 6 members of the Managing Com mittee of the preamalgamated High School, even if the view of Smti. Junu Goswami (Headmistress of the preamalgamated Middle School), against amalgamation is exc luded the 5 other members endorsed the same. The breakup of views vis-a-vis the High School, therefore, emerges as follows: - . High School Managing Committee For Against 5 1 High School Teaching Staff For Against 9 0 One did not express his opinion. 18. Summing up the figures depicting the votes in favour and against the amalgamation for both the Schools, it is apparent that whereas, 20 persons favoured amalgamation, the move was opposed by 17. Thus, even if the number re ferred to in the note dated 25.01.2008, varies from those referred to hereinabov e, gatherable from the report dated 24.09.2007, the views in favour of amalgamat ion outweigh those against it and, therefore, in terms of the letter and spirit of the directions contained in the judgment and order dated 13.06.2007, the impu gned order dated 18.02.2008, cannot be faulted with. The orders dated 07.11.200 7 and 12.11.2007, are not only inconsistent with the factual inputs available on the records, but also are obviously repugnant to the essence of the earlier ve rdict of this Court. The order dated 18.02.2008, having been passed on a correc t appreciation of the recorded facts in deference to the directions of this Cour t, no interference therewith, is called for. 19. In view of the above, W.P(C) No. 799/2008, stands dismissed. W. P(C) No. 6061/2007, is closed as infructuous. No costs.