Gauhati High Court
Rupanjali Mahanta vs The State Of Assam And 8 Ors on 29 July, 2021
Page No.# 1/12
GAHC010075782020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2268/2020
RUPANJALI MAHANTA
W/O- SRI AMULYA CHANDRA BEZBARUAH, R/O- C/O- SADANANDA
MHANTA, H NO. 89, PUB JYOTI NAGAR, BAMUNIMAIDAM, GUWAHATI-
781021, DIST- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
EDUCATION (SECONDARY) DEPTT, DISPUR, GUWAHATI- 06
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019
3:THE INSPECTOR OF SCHOOLS
KAMRUP DISTRICT CIRCLE (RURAL) ASSAM
GUWHATI- 31
4:THE DEPUTY COMMISSIONER
KAMRUP (R)
AMINGAON
GUWAHATI- 31
ASSAM
5:THE ADDL DEPUTY COMMISSIONER
KAMRUP (R)
AMINGAON
GUWAHATI- 31
ASSAM
Page No.# 2/12
6:THE SCHOOL MANAGING COMMITTEE
KAMALPUR SENIOR SECONDARY SCHOOL
KAMALPUR
P.O- BAIHATA
DIST- KAMRUP (R)
ASSAM
PIN- 781380
REP. BY ITS PRESIDENT
7:THE PRINCIPAL AND SECRETARY
KAMALPUR SENIOR SECONDARY SCHOOL
KAMALPUR
P.O- BAIHATA
DIST- KAMRUP(R)
ASSAM
PIN- 781380
8:THE KAMRUP (R) DISTRICT SCRUTINY COMMITTEE
FOR SECONDARY EDUCATION
KAMRUP
REP. BY ITS CHAIRMAN
AMINGAON
ASSAM
PIN- 781031
9:THE STATE LEVEL SCRUTINY COMMITTEE
REP. BY ITS CHAIRMAN
KAHILIPARA
ASSAM
GHY- 78101
Advocate for the Petitioner : MR. P MAHANTA
Advocate for the Respondent : SC, SEC. EDU.
WP(C)/3644/2020
RUPANJALI MAHANTA
W/O- SRI AMULYA CHANDRA BEZBARUAH
R/O- C/O- SADANANDA MAHANTA
H.NO. 89
PUB JYOTI NAGAR
BAMUNIMAIDAM
GHY-21
DIST.- KAMRUP (M)
ASSAM
Page No.# 3/12
VERSUS
THE STATE OF ASSAM AND 9 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY-6
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE INSPECTOR OF SCHOOLS
KAMRUP DISTRICT CIRCLE (RURAL)
ASSAM
GHY-31
4:THE DY. COMMISSIONER
KAMRUP (R)
AMINGAON
GHY-31
ASSAM
5:THE ADDL. DY. COMMISSIONER
KAMRUP (R)
AMINGAON
GHY-31
ASSAM
6:THE SCHOOL MANAGING COMMITTEE
KAMALPUR SENIOR SECONDARY SCHOOL
KAMALPUR
P.O. BAIHATA DIST.- KAMRUP (R)
ASSAM
PIN- 781380
REP. BY ITS PRESIDENT
7:THE PRINCIPAL AND SECY.
KAMALPUR SENIOR SECONDARY SCHOOL
KAMALPUR
P.O. BAIHATA DIST.- KAMRUP (R)
ASSAM
PIN- 781380
8:THE KAMRUP (R) DISTRICT SCRUTINY COMMITTEE FOR SECONDARY
EDUCATION
KAMRUP (R)
REP. BY ITS CHAIRMAN
AMINGAON
ASSAM
Page No.# 4/12
PIN- 781031
9:THE STATE LEVEL SCRUTINY COMMITTEE
REP. BY ITS CHAIRMAN
KAHILIPARA
ASSAM
GHY-19
10:NAJRUL ISLAM
C/O- KAMALPUR SENIOR SECONDARY SCHOOL
KAMALPUR
P.O. BAIHATA DIST.- KAMRUP (R)
ASSAM
PIN- 781380
------------
Advocate for : MR. P MAHANTA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 9 ORS.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 29-07-2021
Heard Mr. P. Mahanta, learned counsel for the petitioner. Also heard Mr.
R. Mazumder, learned counsel for the respondents No.1, 2, 3 and 9 being
the authorities under the Secondary Education Department of the Govt. of
Assam, Mr. P. Saikia, learned counsel for the respondents No.4 and 5 being
the Deputy Commissioner and Additional Deputy Commissioner, Kamrup(R)
and respondent No.8 being the District Scrutiny Committee for Kamrup(R)
and Mr. R. Baruah, learned counsel for the respondents No.6, 7 and 10
being the School Managing Committee and Principal cum Secretary of the
Kamalpur Senior Secondary School and Sri Najrul Islam, who is the Principal
of the school.
As the issues involved in both the writ petitions are one and the same, we
intend to give a final consideration by this common judgment and order.
2. The petitioner is a MA degree holder in the subject Education from Gauhati
University, obtained in the year 1994 and also qualified for the B.Ed degree in
the year 1997. Subsequently she also obtained M.phil degree in the year 2009
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from the Vinayaka Mission University, Salem through distant mode. We take
note of that for the purpose of this petition no question had been raised by any
of the authority as regards the M.Phil qualification of the petitioner. The
petitioner was initially appointed as a lecturer in the Education department of
the Kamalpur Junior College on 28.09.1997 as per the resolution No.1 of the
Governing Body and the appointment was made as per the recommendation of
the selection committee constituted for the purpose. It is stated that subsequent
thereto the Kamalpur Junior College became Kamalpur Senior Secondary School.
The staff pattern of the teaching staff of the Kamalpur Senior Secondary School,
which is annexed as Annexure-4 to the writ petition, shows Ritu Saloi Kalita to
be the subject teacher in Education. The particulars of the teaching staff of the
Kamalpur Senior Secondary School as it appeared in the website of the
Secondary Education Department of the Government of Assam shows the
respondent No.10 Najrul Islam having the qualification of MA, to be a tutor in
the school as well as its Principal. It has been brought to our notice that the
respondent No.10 does not have the qualification of B.Ed and therefore, he is
not qualified to be a principal.
3. A reading of the particulars of the teaching staff of the Kamalpur Senior
Secondary School would go to show that in the years 2014, 2015 and 2016
there were 82, 93 and 93 students respectively in Class-xii for the subject
Education. In other words the number of students in the subject Education in
the school was more than 80 for the last 3 years prior to the teachers of the
school being provincialised. It is stated that many teachers of the school were
provincialised including Ritu Saloi Kalita as a subject teacher in Education.
Admittedly Ritu Saloi Kalita was appointed as a subject teacher in Education on
08.09.1994 i.e. prior to the petitioner who was appointed on 28.09.1997.
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4. The claim of the petitioner for provincialisation was subsequently
forwarded by the Principal of the Kamalpur Senior Secondary School along with
another teacher namely Jitumoni Sarma. In the said document also the number
of students in Education subject was shown to be 82 and 93 in Class-xii for the
years 2014 and 2015 but for the year 2016 it was shown blank. When the same
information was provided for Ritu Saloi Kalita for his provincialisation, the
complete information even for the year 2016 was given, whereas when
particulars for the petitioner was subsequently forwarded , the Principal deemed
it appropriate to keep it blank for the year 2016. No reasons are forthcoming as
why it was forwarded as blank.
5. In any view of the matter, the petitioner in this petition claims for
provincialisation under Section 3(1)(ix) of the Assam Education (Provincialisation
of Services of Teachers and Re-organization of Educational Institutions) Act,
2017 (in short Act of 2017) on the ground that as the subject Education had
more than 80 students in the last final examination of the highest class of
school for the particular subject, there was an entitlement for provincialisation
of an additional teacher or tutor for that given subject. The provision of Section
3(1)(ix) is extracted below:-
" For provincialisation of services of additional teacher or tutor,
as the case may be, for a particular subject including the core
subjects, in addition to the post mentioned in Section 3(1)(vii), in
any Venture High School or Venture High Madrassa or Venture
Higher Secondary School or Venture Senior Secondary School, the
minimum students appearing in the last final examination of the
highest class of the said school for that particular subject must
exceed eighty for one additional post and one hundred fifty for the
second additional post. Further, for provincialisation of services of
additional teacher or tutor, as the case may be, for a particular
subject, in addition to the posts mentioned in Section 3(1)(vii), in a
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venture Degree College, the minimum students appearing in the last
final examination of the highest class for that particular subject
must be more than one hundred fifty for one additional post."
6. The provisions of Section 3(1)(ix) provides for provincialisation of an
additional teacher or tutor for a particular subject including the core subject, in
addition to the posts mentioned in section 3(1)(vii) in any Venture High School
or Venture High Madrassa or Venture Higher Secondary School, if the minimum
number of students appearing in the last final examination of the highest class
of the said school for the given subject exceeds 80 and in such event the
provision for provincialisation of an additional post in the said subject can be
invoked. The factual matrix of the present case as indicated above shows that
for the subject Education in the Kamalpur Senior Secondary School the number
of students in Class-xii, which is highest class for the subject Education not only
in the last final examination but even for the last 3 years had clearly exceeds
80.
7. In the facts and circumstances of the present case in respect of the
petitioner and in view of the provision of Section 3(1)(ix) of the Act of 2017 a
legal right had accrued in favour of the petitioner for being considered for
provincialisation as an additional teacher in the subject Education in the
Kamalpur Senior Secondary School.
8. The respondent No.10 Najrul Islam being the Principal of the school by
filing an affidavit has taken a stand that as per the resolution No.4 of the
executive meeting of the Kamalpur Junior College in its meeting held on
18.07.2017 a decision was taken that the petitioner along with another teacher
Jitumoni Sarma be released from their respective posts of professor (subject
teacher) from the Kamalpur Senior Secondary School on the ground that they
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have been continuously absent from the school from 2010 to 2015. The
resolution No.4 of the executive meeting of the Kamalpur Senior Secondary
School which is annexed as Annexure-4 page-6 to the affidavit of the Principal
of the school has not been preceded or supported by any document nor any
material has been produced to show as to on what factual basis the conclusion
was arrived that the petitioner was continuously absent from the year 2010 to
2015. In the absence of any such preceding document or material, a further
doubt would be created on the authenticity of the resolution No.4 considering
the aspect that the said resolution was taken at a stage when the claim for
provincialislation of the teachers of the school were to have been considered.
9. We have been told that the Kamalpur Junior College became Kamalpur
Senior Secondary School almost as far back as 2007. But the resolution No.4
which is dated 18.07.2017 still refers it to be a resolution of the executive
meeting of the Kamalpur Junior College, although by that time the institute was
known as Kamal Senior Secondary School and further the petitioner was
referred as a professor, whereas, on the said date, the petitioner was a subject
teacher of the school. Such incorrect depiction also indicates a non-application
of mind. Mr. P. Mahanta, learned counsel for the petitioner makes a statement
that although the resolution No.4 provides that the petitioner was absent from
the school from 2010 to 2015, but even after the said resolution was taken, the
petitioner continued her duties and took classes in the subject Education on the
demand of the students, although the school authorities had made all the
efforts to prevent her from entering the campus. Be that as it may we are not
inclined to go into such factual question for the purpose of this writ petition.
10. Section 1(3) of the Act of 2017 provides that the State Government may
by notification in the Official Gazette, appoint the date for the Act to come into
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force and different dates may be appointed for different provisions of the Act or
for different category of educational institutions.
11. Section 4(2)(iii) of the Act of 2017 provides that teachers or tutors to be
provincialised under the Act, amongst others, as on 01.01.2017 must have
rendered at least six years of continuous service from the date of joining in the
concerned Venture Educational Institution which must be as on 31.12.2010 or
prior to that date. Section 4(2)(iii) of the Act of 2017 is extracted as below:-
"4(2)(iii)- must have rendered at least six years continuous service as on
1.1.2017 from the dare of joining in the concerned Venture Educational
Institution which must be on 31.12.2010 or prior to that date."
12. Section 4(2)(iii) of the Act of 2017 provides that as on 01.01.2017, the
teacher or tutor concerned must have rendered at least six years continuous
service from the date of joining in the concerned Venture Educational Institution
and such date of joining must be on 31.12.2010 or prior to that date. If a
teacher or tutor was appointed on or prior to 31.12.2010 and from the date of
initial appointment had rendered six years continuous service as on 01.01.2017
such teacher/tutor would be entitled for consideration for provincialisation.
13. The petitioner in the instant case was admittedly appointed on 10.10.1997
i.e. prior to 31.12.2010. Therefore, it would be for the authorities concerned
under the Act of 2017 i.e. the District Scrutiny Committee of the district to verify
from the record as to whether as on 01/01/2017 the petitioner had rendered at
least six years continuous service in the school from the date of her joining i.e.
10.10.1997. If the answer arrived at is yes, a legal right would flow u/s 4(2)(iii)
of the Act of 2017 for such provincialisation subject to fulfillment of other
conditions as may be prescribed. But be that as it may, once the legal right had
accrued to the petitioner for being considered for provincialisation under the Act
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of 2017, it is incumbent upon all concerned to send the service particulars of the
petitioner to the District Scrutiny Committee of the district concerned i.e.
Kamrup (Rural) in the present case for its consideration and verification of the
factual background of the claim of the petitioner, and also for determining as to
whether the petitioner is entitled to provincialisation.
14. In the instant case, we find that by taking recourse to the resolution No.4
dated 18.07.2017 of the executive meeting of Kamalpur Senior Secondary
School, the service particulars of the petitioner were not duly forwarded for its
consideration. The act on the part of the school authorities in not forwarding the
service particulars of the petitioner, in our view, is a violation of the legal right of
the petitioner under the Act of 2017.
15. True, the resolution No.4 dated 18.07.2017 shows that the petitioner had
been released from her duties as a teacher in the school. But the legal right of
the petitioner to be considered for provincialisation under the Act of 2017
accrued as on May, 2017 when the Act of 2017 was brought into effect. A
subsequent act of releasing the petitioner by the school authorities cannot come
in the way from her service particulars being sent to the District Scrutiny
Committee for its consideration which itself is a legal right of the petitioner.
16. In view of such determination of the legal right of the petitioner for being
considered for provincialisation, we direct the authorities of the Kamalpur Senior
Secondary School to forthwith transmit all the service particulars of the
petitioner to the District Scrutiny Committee of Kamrup (Rural) district, who
shall determine the entitlement of the petitioner u/s 4(2)(iii) of the Act of 2017
and other relevant provisions. All the service particulars of the petitioner as it
stood on the date the Act of 2017 came into its force i.e. in May, 2017 be
transmitted accordingly.
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17. As regards the resolution No.4 of the executive meeting of the Kamalpur
Senior Secondary School, releasing the petitioner from her service by stating
that she remained absent from the classes from 2010 to 2015, we direct the
Director of Secondary Education, Assam to cause an enquiry as to under what
circumstances the said resolution was taken by the executive meeting of the
Kamalpur Senior Secondary School and also as to the veracity of the correctness
of the factual depiction in the resolution No.4 that the petitioner remained
continuously absent from the classes from the year 2010 to 2015. For the
purpose, the entire records from the school be called for by the Director and the
Director to also make an independent enquiry from the students etc of the
school during that period to verify as to whether the petitioner was continuously
absent from her classes or not. If the result of the enquiry is different from the
factual depiction made in the resolution No.4, appropriate action under the law
be taken by the Director against the school authorities including the Principal
While undertaking the enquiry the Director shall also look into the aspect
whether due procedure of law was followed while arriving at the resolution No.4
dated 18.07.2017 of the executive committee of the school.
18. The requirement of sending the service particulars by the school
authorities of Kamalpur Senior Secondary School be done within a period of
seven days from the date of receipt of the certified copy of this order and the
District Scrutiny Committee of Kamrup (Rural) shall examine the matter and
pass its reasoned order within a period of one month thereafter. For the
purpose, the District Scrutiny Committee shall also embark upon a factual
verification as to whether the petitioner had rendered six years of continuous
service from the date of her appointment on 10.10.1997 as a teacher in
Education subject in the Kamalpur Senior Secondary School as on 01.01.2017.
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Depending on the outcome of such enquiry, appropriate order be passed by the
District Scrutiny Committee. The enquiry by the District Scrutiny Committee be
made also independent of the materials that the school authorities may send.
The Director in the enquiry shall also look into whether due procedure of law
was followed i.e. an enquiry before the resolution No.4 was passed.
19. Writ petitions stand allowed in the above terms.
JUDGE
Comparing Assistant
