Gauhati High Court
WA/28/2019 on 4 March, 2021
GAHC010003782019
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WA No.28 of 2019
Sri Kishore Kumar Deka,
S/O- Late Bani Kanta Deka,
Resident of-Suraj Nagar,
P.O.- Lalganesh, Odalbakra,
Guwahati-781034
District: Kamrup (M), Assam.
--------Appellant.
Versus
1. The State of Assam, represented by the Secretary to
the Govt. of Assam, Education Department, Dispur,
Guwahati-781006.
2. The Director of Secondary Education, Assam,
Kahilipara, Guwahati-781019.
3. The Inspector of Schools, Kamrup District Circle,
Panbazar, Guwahati-781001.
4. The President of Managing Committee, Sabitri Bharali
High School, Odalbakra, Guwahati-781034, District:
Kamrup (M), Assam.
5. The Secretary of Managing Committee, Sabitri Bharali
High School, Odalbakra, Guwahati-781034, District:
Kamrup (M), Assam.
Page 1 of 11
6. Smti. Kalpana Devi,
W/O-Shri Lalit Kumar Nath,
Seojpur, Kahilipara,
Guwahati-781019,
District: Kamrup (M), Assam.
------Respondents.
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
Advocate for the Appellant : Mr. K.N. Choudhury, Senior Advocate
Mr. R. M. Deka, Advocate
Mr. D. N. Sarma, Advocate.
Advocates for respondents : K.P. Pathak, Standing Counsel,
Secondary Education, Assam
Mr. A. D. Goswami, Advocate
Mr. B. C. Das, Senior Advocate.
Date of hearing and judgment & Order : 04.03.2021
JUDGMENT & ORDER (ORAL)
(Sudhanshu Dhulia, CJ)
Heard Mr. K. N. Choudhury, learned senior counsel assisted by
Mr. R. M. Deka and Mr. D. N. Sarma, learned counsel for the
appellant. Also heard Mr. K. P. Pathak, learned Standing Counsel,
Secondary Education, Assam for the respondent nos.1 to 3; Mr. A.
D. Goswami, learned counsel for the respondent no. 4 and Mr. B. C.
Das, learned senior counsel assisted by Mr. S. Nath, learned counsel
for the respondent no. 6.
2. This writ appeal has been filed by the writ appellant
challenging the order dated 28.11.2018 passed by the learned
Single Judge in WP(C) 5914/2014 whereby the writ petition has
been allowed and the provincialisation of the service of the writ
appellant/respondent in the writ petition, has been quashed.
3. The matter relates to provincialisation of teachers in a venture
school of Assam. A venture school is defined under Section 2 (p) of
the Assam Venture Educational Institutions (Provincialisation of
Services) Act, 2011, which reads as under:
"2(p) 'Venture High School' means High School including a High
Madrassa imparting education up to Class X and established by the
people of the locality prior to 1.1.2006 which has received
permission from the State Government and recognition from the
Board of Secondary Education, Assam on or before 1.1.2006 and
not provincialised under any Act enacted by the State legislature so
far."
4. Venture schools are private schools opened by the members
of the locality for the benefits of children of that locality. A venture
school must get a recognition by the Education Authorities in order
to run. In course of time, these venture schools claim
provincialisation. When a school is provicialised it would mean that
all the financial liabilities of the school in terms of payment of
salaries, grants etc. are taken care of by the Government. In fact,
the teachers who are provincialised become Government servants.
In 2011, an Act was passed by the State Legislature known as the
Assam Venture Educational Institutions (Provincialisation of
Services) Act, 2011. The Act was with a purpose and the purpose
was to "provincilaise the services of the employees of the venture
educational institutions in the State of Assam and to restrict further
establishment of such educational institutions in the State1". An
eligibility criteria was set up under the statute for selecting
educational institutions for provincialisation under Section 3 of the
Act and thereafter, a criteria was set up for provincialisation of the
employees. Section 4 of the Act further stipulates that once the
services of the employees of an eligible venture school are
provincialised under Section 3 of the Act, they would become an
employee of the State Government and they would be called
"Government servant". Sub-section (2) of Section 4, which is
important and fixed the number of employees in a school, including
teachers which would be provincialised, is given in Schedule of the
Act. Sub-section (2) reads as under:-
"(2) The numbers of employees in both teaching and non-
teaching cadre in each of the Venture Educational Institution,
services of whom are provincialised or to be provincialised
under this Act, shall not exceed as specified in the Schedule
appended to this Act:
Provided that where the number of such employees
serving in such Venture Educational Institutions exceeds the
number as specified in the Schedule, the provincialisation of
the services of the employees shall be on the basis of seniority
in the respective category in the concerned educational
Objective and reason of the Act.
institution. The State Government shall not have any liability
whatsoever in regard to such excess employees:
XXXXXXXX"
5. The Schedule appended to the Act shows that a maximum
number of three Assistant Teachers (Science) can be provincialised in
a venture school, and with the school with which we are concerned,
i.e. Sabitri Bharali High School, District-Kamrup, the limit are two
teachers. Under the aforesaid provision, Government passed an
order dated 22.09.2014, whereby Sabitri Bharali High School,
District Kamrup was provincialised and the services of the following
number of teachers were provincialised, which is as under:-
Sl. Name of incumbents Designation Date of Joining
No.
1 Diju Kumar Kalita Headmaster 01-02-1990
2 Karabi Mishra Graduate Teacher (Arts) 02-02-1990
3 Kunjalata Rabha Graduate Teacher (Arts) 24-02-1999
4 Vacant Graduate Teacher (Arts) -----------
5 Santosh Bharali Graduate Teacher (Science) 06-04-1993
6 Kishore Kr. Deka Graduate Teacher (Science) 08-08-1994
7 Bina Das Hindi Teacher 25-05-1992
8 Arati Devi Sanskrit Teacher 12-01-2000
9 Hareswar Kalita Junior Assistnat 04-06-1992
10 Chandeswar Rabha Grade-IV 08-08-1994
6. Against the post of Graduate Teachers (Science), which we are
concerned, one Santosh Bharali and the other Kishore Kumar Deka,
the present writ appellant, were provincialised. This provincialisation
as far as it relates to provincialisation of the present writ appellant
was concerned was challenged by the writ petitioner by way of a
writ petition stating her claim on the basis of seniority. Her case
was that both the writ appellant and the writ petitioner were
appointed by the order of the Managing Committee dated
17.07.1994 and joined their services as Teachers on 08.08.1994, but
it is also an admitted fact that the petitioner, i.e. the respondent
before us, being senior in age was given seniority over the writ
appellant. The undisputed fact is that the respondent was senior to
the writ appellant as an Assistant Teacher (Science) in Sabitri Bharali
High School. This was also the contention of the writ petitioner
before the learned Single Judge which was that she being senior to
the respondent/writ appellant before this Court, it was her services,
which was liable to be provincialised as the criteria of
provincialisation of services of teachers is primarily seniority in
service. As we have already referred Sub-section (2) of Section 4 of
the Act, which says that seniority is the main criteria for
provincialisation, and this seniority has to be considered in the
"respective category", which would mean category of teachers, such
as Science Teachers, Language Teachers, etc.
7. The respondent in the writ petition as well as the State
Government justify the provincialisation of the writ appellant on the
basis of the fact that the writ appellant had graduation in Physics,
Chemistry and Mathematics, whereas the writ petitioner had
Chemistry, Zoology and Botany as her subjects. Admittedly, she did
not have Mathematics as a subject in her graduation, and children in
school needed to be taught Mathematics and, therefore, they have
given preference to the respondent, i.e. the writ appellant, as
against the writ petitioner as she was not having Mathematics as
one of her subjects. They had also relied upon an Office
Memorandum dated 07.05.2014 in their favour, which is also part of
record in the present writ appeal as Annexure-G. The subject of the
Office Memorandum is as under:-
"The existing recruitment principle of teachers in
provincialised High School/High Madrassa envisages
recruitment of at least two numbers of Science Teacher with a
view to teach Mathematics and General Science subjects in the
classes up-to standard X and necessarily one teacher should
be science graduate with the combination of subjects viz.
Physics, Chemistry and Mathematics while another should
have combination of subjects either of Physics, Chemistry and
Biology or any combination having Mathematics subject in
degree level. But, some schools are found recruiting Science
Teachers contrary to the above principle where both the
teachers are either from the combination of subject without
Chemistry and Biology or Mathematics and thereby the
students are deprived from the quality teaching either in
Mathematics or in General Science. So, it warrants enforcing
the above principle by inserting in the relevant Service Rules.
After careful consideration of all aspects, the
Government have decided that henceforth, one of the Science
Teachers in each High School/High Madrassa should be
science graduate with the combination of subjects viz. Physics,
Chemistry and Biology and another should have combination
of subjects either of Physics, Chemistry, Mathematics or
Economics Statistics, Mathematics or any combination having
Mathematics.
Relevant rules of Assam Secondary Education
(Provincialised) Service Rules, 2003 shall be amended
accordingly later on."
8. The learned Single Judge, however, was of the opinion that
there are already decisions on the subject, by a Division Bench of
this court, where the Court have emphasized that the criteria for
provincialisation of services would be seniority and it is not with the
seniority. Reference is of the order of a Division Bench dated
05.05.2016 passed in W.A. No.290/2014 as well as the order dated
31.08.2016 passed in WP(C) No.4053/2013.
9. Mr. Choudhury, learned senior counsel for the writ appellant
would argue that the proviso to Sub-section (2) of Section 4
emphasizes that provincialisation is based on seniority but in the
seniority in the respective category, the exact word which has been
used in the proviso is "shall be on the basis of the seniority in the
respective category in the concerned educational institution". As to
what would be a respective category is clear from the Schedule,
which is given to the Act where in a High School, the following
categories have been given:
Categories Category of Maximum number of For Mixed
of Staff posts (General) Schools (total)
Institution
School/High Superintendent
Madrassa (2 Assistant Teacher Single Section-3, Three Single Section-6,
Classes) (B.A./B.Com) section-3, Four section-3 Three section-6,
and Five section-4 Four section-6 and
Five section-8
Assistant Teacher Single Section-2, Three Single Section-4,
(Science) section-2, Four section-2 Three section-4,
and Five section-3 Four section-4 and
Five section-6
Senior Hindi 1 2 (total)
Teacher
Classical 2 (one for Classical and one 2 (one for Classical
Teacher/Language for language) and one for
Teacher (for non- language)
Assamese Medium
Schools)
Music Teacher 1 (where teacher is in 1 (where teacher
position since 01-01-06 or is in position since
before) 01-01-06 or
before)
Craft Teacher 1 (where teacher is in 1 (where teacher
position since 01-01-06 or is in position since
before) 01-01-06 or
before)
10. For teachers, therefore, we find that there is a category of
Assistant Teacher (Science). Assistant Teacher (Science) is a very
broad category which should include a teacher in Mathematics as
there is no separate category of Mathematics Teacher. In other
words, when an inter-say seniority of teachers have to be
calculated, the inter-say seniority as a category of teachers of
Science that could include all streams of Sciences, be it Physics,
Chemistry, Botany, Zoology, etc. as well as Mathematics. Once we
take the Science and Mathematics as one single category of
teachers there is absolutely no doubt in our mind that between the
writ appellant and the respondent it was respondent who was senior
to the writ appellant, and therefore liable to be provincialised as
against the writ appellant. Therefore, we find no fault in the order of
the learned Single Judge in this respect.
11. At this Stage, Mr. Choudhury, learned senior counsel for the
appellant further argued that the Office Memorandum dated
07.05.2014 emphasizes that at least one Assistant Teacher should
be from the Mathematics, and therefore, when two Assistant
Teachers have to be provincialised, at least one of them must be
from Mathematics. This argument, however, we are not prepared to
accept for the following reasons.
First and foremost this aspect has been introduced by way of
an Office Memorandum. The Office Memorandum also categorically
states that amendment will be made in the Rules and admittedly
these Rules have never been made so far. Moreover, the subject
matter of the Office Memorandum itself shows that it is regarding
"recruitment of Science Teacher in provincialised school" and
therefore, in any case this criteria has not to be looked into when a
venture school is being provincialised. The necessity of a teacher in
Mathematics cannot be denied. A school must have a teacher in
Mathematics, but we are presently not deciding an issue which
relates to the quality of teachers and the category of teachers to be
recruited in an institution. The matter which has to be decided
between the parties is as to which teacher has better claim for
provincialisation. The purpose of provincialisation is entirely
different. The purpose of provincialisation was to bring certainty in
the service conditions of teachers who have so far been teaching in
venture schools with meager salaries. They are now to get a regular
salary and the liability is taken by the Government and in fact, after
provincialisation such teachers become Government servants. Their
claim is to be tested on the ground of seniority. The purpose of the
Act is very clear, which is that provincialisation has to be based on
seniority. Definitely, the seniority has to be based keeping different
categories in mind and as we have already indicated Science and
mathematics together constitute one category. Seniority in this
category has to be seen. In view thereof there is no scope for
interference with the order of the learned Single Judge.
12. The present writ appeal is dismissed in the above terms.
13. Interim order dated 13.02.2020 is hereby vacated.
JUDGE CHIEF JUSTICE
Comparing Assistant
