Kishore Kumar Deka vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1346 Gua

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GAHC010065832021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/2528/2021

            KISHORE KUMAR DEKA
            S/O- LT. BANI KANTA DEKA, A R/O- SURAJ NAGAR, P.O. LALGANESH,
            ODALBAKRA, GHY-34, DIST.- KAMRUP (M), ASSAM

            VERSUS

            THE STATE OF ASSAM AND 5 ORS
            REP. BY THE SECY. TO THE GOVT. OF ASSAM, EDUCATION SECONDARY
            DEPTT., DISPUR, GHY-06

            2:THE DIRECTOR OF SECONDARY EDUCATION
            ASSAM KAHILIPARA GHY-19

            3:THE INSPECTOR OF SCHOOLS
             KAMRUP DISTRICT CIRCLE
             PANBAZAR GHY-01

            4:THE PRESIDENT OF MANAGING COMMITTEE
             SABITRI BHARALI HIGH SCHOOL
             ODALBAKRA GHY-34 DIST.- KAMRUP (M) ASSAM

            5:THE SECRETARY OF MANAGING COMMITTEE
             SABITRI BHARALI HIGH SCHOOL
             ODALBAKRA
             GHY-34 DIST.- KAMRUP (M) ASSAM

            6:KALPANA DEVI
            W/O- SHRI LALIT KUMAR NATH
             SEOJPUR KAHILIPARA
             GHY-19 DIST.- KAMRUP (M) ASSA

Advocate for the Petitioner   : MR A R BHUYAN

Advocate for the Respondent : SC, SEC. EDU.
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                               BEFORE
          HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                          ORDER

Date : 07.04.2021

Heard Mr. A. R. Bhuyan, learned counsel for the petitioner. Also heard Mr. R. Mazumdar, learned counsel for the respondents No. 1, 2 & 3, being the authorities under the Secondary Education Department, Government of Assam.

2. Considering the nature of the order proposed to be passed, we deemed it appropriate that notice at this stage need not be issued to the respondents No. 4, 5 &

6.

3. The respondent No. 6, Smt. Kalpana Devi, had instituted WP(C) 5914/2014, assailing the provincialization of the petitioner Sri Kishore Kumar Deka on the ground that his provincialization was vitiated as it was done by following the procedure of subject combination rather than following the order of seniority as required under the Assam Venture Educaitonal Institutions (Provincialisation of Services) Act, 2011 (in short, '2011 Act'). By the judgment dated 28.11.2018 passed in WP(C) 5914/2014, the provincialization of the present petitioner Sri Kishore Kumar Deka was declared to be in conflict with the provisions of the 2011 Act. In compliance of the judgement dated 28.11.2018, it is stated that the authorities are now contemplating to withdraw the benefit of provincialization earlier given to the petitioner Sri Kishore Kumar Deka and the same is sought to be done without following the procedure of the Assam Services (Discipline and Appeal) Rules, 1964. We are unimpressed with the said contention from the point of view that once there is a final adjudication on the right of the petitioner Sri Kishore Kumar Deka as regards the entitlement to provincialization, any withdrawal of such benefit would not entail a proceeding under the Rules of 1964. If we take a contrary view, the implication thereof would be that it would again be made open to the authorities to determine the entitlement of provincialization of the petitioner Sri Kishore Kumar Deka over and above, the adjudication already made in WP(C) 5914/2014. Such a situation would be unacceptable in law. However, we find that if the provincialization of the petitioner under the 2011 Act would be withdrawn, the Page No.# 3/3

petitioner would still have a legal right to be considered for a fresh provincialization under the Assam Education (Provincialisation of Services of Teachers and Re- organisation of Educational Institutions) Act, 2017 (in short, 'Act of 2017').

4. Upon hearing the learned counsel for the parties, i.e. the petitioner and the respondents, we are of the view that the interest of justice would be met on a direction being issued to the respondents to consider the claim of the petitioner for provincialization under the Act of 2017 and bring it to its logical end. It is stated that the petitioner would otherwise retire from service within a period of 2 years 10 months from today. The consideration as required above be done and concluded within a period of two months from the date of receipt of the certified copy of this order. By requiring the authorities to consider the case of the petitioner for provincialization afresh under the Act of 2017, we clarify that this is not a direction to provincialize but a direction to pass a reasoned order on such claim on the facts of the case and under the relevant laws.

5. This writ petition is accordingly disposed of in the above terms.

JUDGE

Comparing Assistant