Page No.# 1/8 vs Preetom Saikia
2021 Latest Caselaw 1982 Gua

                                                                Page No.# 1/8

GAHC010035852021




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

                        Case No. : Cont.Cas(C)/124/2021

         ABDUL ODUD BARBHUIYA AND 4 ORS
         S/O LATE ABDUL QUDDUS BARBHUIYA, RESIDENT OF VILLAGE
         GANIRGRAM, PO GANIRGRAM, DIST CACHAR, ASSAM

         2: MD. MUSARIF HUSSAIN LASKAR
          S/O SIRAJ UDDIN LASKAR

         RESIDENT OF VILLAGE RANGIRGHAT PART I

         PO GOBINDRANAGAR
         DIST CACHAR
         ASSAM

         3: ABDUL KADIR HAZARIKA
          S/O LATE MASHUR ALI HAZARIKA
          R/O VILLAGE BOALIRPAR PT II
         PO BOALIRPAR BAZAR
          DIST HAILAKANDI
         ASSAM

         4: ABDUL HANNAN LASKAR
          S/O LATE MOKLESUR RAHMAN
         R/O VILLAGE BAKRIHOWAR
          PO CHIPORSANGON
          DIST HAILAKANDI
         ASSAM

         5: FORJULLAH SK

          S/O LATE AFAZ UDDIN SK

         R/O VILLAGE PO DAFARPUR
         DIST DHUBRI ASSA
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            VERSUS

            PREETOM SAIKIA, IAS AND 2 ORS
            THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            EDUCATION (SECONDARY) DEPARTMENT,DISPUR, GUWAHATI 06

            2:MR. S. JAGANATHAN
             IAS
            THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
             FINANCE DEPARTMENT
             DISPUR GUWAHATI 06

            3:MR. PHANINDRA JIDUNG
            THE DIRECTOR OF SECONDARY EDUCATION
            ASSAM
             KAHILIPARA
             GUWAHATI 1

Advocate for the Petitioner   : MR. M KHAN

Advocate for the Respondent :




                           BEFORE
      HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        ORDER

26.08.2021

Heard Mr. M Khan, learned counsel for the petitioners. Also heard Mr. SMT Chistie, learned counsel for the respondent contemnors No.1 and 2 and Mr. R Mazumdar, learned counsel for the respondent contemnor No.3.

2. This contempt petition is instituted for a willful and deliberate violation of the order dated 04.09.2019 passed in WP(C)No.6570/2019.

3. In paragraph 6 of the order dated 04.09.2019 in WP(C)No.6570/2019 it has Page No.# 3/8

been provided as extracted:

Learned senior counsel for the petitioners further submits that this is a matter which the authority can also decide for which the peititoners will submit a detail representation before the authorities concerned and the authorities may accordingly be directed to take a decision on this regard and if the petitioners are aggrieved by any decision that may be taken by the authorities, they may be given the liberty to approach this Court again.

4. A reading of paragraph 6 of the order dated 04.09.2019 in WP(C)No.6570/2019 goes to show that the learned senior counsel for the petitioners in the writ petition had made a submission that the issue as to whether the petitioners who are teachers in the madrassa institutions would also be entitled to the benefits given by the Government to the teachers of the non-madrassa institutions and whether non-granting of such benefits would amount to a discrimination can also be decided by the respondent authorities upon a representation being submitted by the petitioners.

5. Accordingly, in paragraph 7 of the said order it has been provided that the writ petition stands disposed of by directing the petitioners to submit a detailed representation before the respondent No.1 who shall take a decision as regards the claim of parity sought for upgradation as Assistant Teachers of Madrassa schools with graduate scale of pay as given to the Assistant Teachers of non- madrassa schools who were in the intermediate scale, but have been given graduate scale of pay in respect of those teachers who are graduates. It is a clear mandate from the Court that the respondent contemnors has to take a decision on the said claim raised by the petitioners as regards parity between Page No.# 4/8

the teachers in the madrassa schools and non-madrassa schools after filing of a detailed representation.

6. The respondent contemnors has produced the order dated 17.08.2021 of the Special Commissioner to the Government of Assam in the Secondary Education Department. The relevant provisions of the order is extracted as under:

It appears that the Government of Assam in Secondary Education Department had issued a notification vide no. B (3) S. 888/93/10 dated 30/12/1993 notifying that the existing post of Asstt. Teacher in Intermediate scale of pay of Rs. 1185-2395/- P.M. with graduate incumbents of provincialised High/Higher Secondary Schools are upgraded to the post of Asstt. Teacher in Graduate Scale of pay of Rs. 1375-3375/- P.M. from the date of issue of the Order. All the petitioners of this case are Asstt. Teachers of Intermediate Scale in various Madrassas of the State and claimed that they are also similarly situated as those Asst. Teachers covered by the Govt. aforesaid notif tion dated 30/12/1993. The authorities accordingly upgradated the petitioners to the Asst. Teachers in graduate scale of pay through various orders issued from the year 1996 onwards. But in the year 2008, the said upgradation order of the petitioner was challenged before Hon'ble High Court by certain Madrassa Teachers seeking similar benefits as per the notification dated 30/12/1993 by fling WP No. 3475/2008 and other connected petitions. Hon'ble High Court vide its judgment and Order dated 30/01/2014 disposed of the said writ petitions stating that the case of Madrassa Teachers are not covered by thee said notification dated 30/12/1993. As per direction of Hon'ble High Court the Government in Secondary Education Department vide its Order dated 5/7/2017 had withdrawn the benefits of upgradation of graduate scale of pay of the petitioners. Thereafter the petitioners approached the Hon'ble High Court by filing WP No. 6570/2019 and Hon'ble High Court vide its Order dated 4/9/2019 disposed of the case directing the respondent authorities to take a decision on the matter by issuing a speaking order. In the mean time, in pursuance with the decision of the Council of Page No.# 5/8

Ministers in its meeting held on 13/12/2020, the Government of Assam has repealed the Assam Madrassa Education (Provincialised) Service Rules, 2016 and issued notification vide No. ASE 473/2020/47 dated 12/2/2021 by which all the Madrassas of the State have been converted into LP/UPIHigh/Higher Secondary Schools with a modified name by omitting the word "Madrassa", which are presently following the course curriculum of SCERT, Assam; Board of Secondary Education, Assam and Assam Higher Secondary Education Council. The administrative control of these schools remains with the Secondary Education Department as before and the status, pay & allowance shall be maintained. Now, all the staff shall be governed by the Assam Secondary Education (Provincialised Schools) Service Rules, 2018. Order After careful consideration of the above and as the Government run Madrassas are no more longer in existence in the State, it has been decided that the claim of the petitioner whose benefits of upgradation of graduate scale of pay was withdrawn earlier cannot be further considered in view of the repeal of the Assam Madrassa Education (Provincialised) Service Rules, 2016.

7. As already noticed above, the requirement of the respondent authorities was to take a decision as to whether there is a parity between the teachers of the madrassa schools and the teachers of the non-madrassa schools as regards entitlement of graduate scale of pay in respect of those intermediate teachers in the madrassa schools having graduate qualifications, meaning thereof as to whether the benefit of graduate scale of pay that was given to the intermediate teachers of the non-madrassa schools having graduate qualifications would also be applicable to the teachers of the madrassa schools.

8. When we look into the order dated 17.08.2021, it prima facie appears to us that the Special Commissioner to the Government of Assam in the Secondary Education Department had not taken the decision as required in paragraph 7 of the order dated 04.09.2019 in WP(C)No.6570/2019.

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9. In fact, by the order dated 17.08.2021, the Special Commissioner to the Government of Assam in the Secondary Education Department has arrived at a conclusion that as per the decision of the Council of Ministers in its meeting held on 13.12.2020, the Assam Madrassa Education (Provincialised) Service Rules, 2016 (for short, the Rules of 2016) has been repealed and as per the related notification being No.ASE 473/2020/47 dated 12.02.2021, all Madrassas of the State have been converted into LP/UP/High/Higher Secondary Schools with a modified name by omitting the word 'Madrassa' and henceforth, all the staff of the erstwhile Madrassa shall now be governed by the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (for short, the Rules of 2018). Having arrived at such conclusion, the Special Commissioner states that it has been decided that the claim of the petitioners for upgradation to a graduate scale of pay which was earlier withdrawn now cannot be further considered in view of the repeal of the Rules of 2016.

10. We are afraid that the final conclusion arrived at by the Special Commissioner is against his own conclusion that all the staff of the erstwhile Madrassa shall now be governed by the Rules of 2018 with a modified name by omitting the word 'Madrassa'. If that is so, the factual situation would be that the present writ petitioners are no longer the teachers of the madrassa schools but they are now teachers of non-madrassa schools. From the said point of view, we do not understand as to how their claim for a graduate scale of pay on the strength of they having their graduate qualification can now no longer be considered. The order of the Special Commissioner itself appears to be self contradictory. If earlier there was a requirement to decide on the parity between the teachers of madrassa schools and the teachers of non-madrassa schools, Page No.# 7/8

after such repeal of the Rules of 2016 and the notification dated 12.02.2021, such disparity itself would no longer exist if the madrassa schools would now be non-madrassa schools and that by itself may be a further reason to decide on the entitlement of the petitioners for a graduate scale of pay on the strength of the earlier notification dated 30.12.1993.

11. In view of the above, the order dated 17.08.2021 which has been passed in the manner as indicated above, we are of the view that there is no willful and deliberate violation of the order dated 04.09.2019 in WP(C)No.6570/2019. But there arises the requirement of a consequential relief to be granted to the petitioners and that the Special Commissioner is required to take a further decision as indicated above, meaning thereby, the Special Commissioner would decide on the entitlement of the petitioners for a graduate scale of pay, may also take note of that if the petitioners have to be construed to be teachers of non-madrassa schools there also cannot be any further reason as to why they are now not governed by the earlier notification dated 30.12.1993, in a circumstance, where it is an admitted position that the teachers of non- madrassa schools are covered by the said notification dated 30.12.1993.

12. The Special Commissioner to pass a reasoned order on the aforesaid aspect.

13. The above requirement be done by passing the reasoned order within a period of two months from the date of receipt of a certified copy of this order.

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14. A copy of the order dated 17.08.2021 be kept as part of the record.

15. In terms of the above, the contempt petition stands closed.

JUDGE

Comparing Assistant