Nurul Islam vs The State Of Assam And 3 Ors
2021 Latest Caselaw 2509 Gua

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GAHC010135382021




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

                                 Case No. : WP(C)/4678/2021

            NURUL ISLAM
            S/O KUTUB UDDIN
            VILLAGE ICHAMATI,PS PATHARKANDI, DIST KARIMGANJ, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 3 ORS.
            REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
            EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR. GUWAHATI 06

            2:THE DIRECTOR OF ELEMENTARY EDUCATION
            ASSAM

            KAHILIPARA
            GUWAHATI 19

            3:THE DISTRICT SCRUTINY COMMITTEE

             REPRESENTED BY ITS CHAIRMAN
             THE DEPUTY COMMISSIONER
             KARIMGANJ
             ASSAM
             788710

            4:THE DISTRICT ELEMENTARY EDUCATION OFFICER

             KARIMGANJ
             ASSAM
             78871

Advocate for the Petitioner   : MR. M KHAN
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Advocate for the Respondent : GA, ASSAM




                                BEFORE
           HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                     O R D E R

25.10.2021

Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. PN Sharma, learned counsel for the respondents No.1, 2 and 4 being the authorities under the Elementary Education Department of the Govt. of Assam, Ms. D.D. Barman, learned counsel for the respondent No.3 being the District Scrutiny Committee represented by the Deputy Commissioner, Karimganj.

2. The petitioner was appointed as an Assistant Teacher in the Dakshin Khatalgool LP School and he has been working as such since 01.04.2004. When the claim of the petitioner was examined for provincialisation of his service under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011), it did not materialize in an order in his favour inasmuch as, the respondent found that he was not adequately qualified for the post. Although Mr. M. Khan, learned counsel refers to certain communications from the Director of Elementary Education, Assam to the Commissioner & Secretary to the Govt. of Assam dated 21.05.2015 providing for a list of 14 teachers who could not be provincialised, but we are of the view that the said document will not lead to the establishment of any legal right in favour of the petitioner from the point of view that the Act of 2011 itself had been declared to be ultra vires by the Division Bench of this Court in the judgment and order dated 23.09.2016 in WP(C) 5825/2012. As the claim of the petitioner under the Act of 2011 stood rejected as because he was not adequately qualified, no Page No.# 3/4

further legal right to be provincialised under the Act of 2011 would remain with the petitioner after the Act itself was declared to be ultra vires. Be that as it may, the subsequent Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (in short Act of 2017) under Section 3(1) (x) provides for provincialisation of services of two teachers of an L.P. School.

3. It is stated that one teacher of the school namely Swapna Begum has been provincialised. As two teachers of the school can be provincialised and one such teacher had been provincialised, we are of the view that a legal right remains in favour of the petitioner for being considered for provincialisation against the second post in respect of Dakshin Khatalgool LP School under the Act of 2017. The Act of 2017 also provides for provincialising the services of such teachers who do not have the adequate qualification by provincialising them as tutors with a condition to obtain the necessary qualification within a period of five years thereafter.

4. From the said point of view, even if the petitioner does not have the necessary qualification still the authorities can consider her for provincialising the services as a tutor. Be that as it may, as a legal right exists in favour of the petitioner for being considered for provincialisation under the Act of 2017, we require the petitioner to submit a representation before the Director of Elementary Education, Assam who shall thereupon pass a reasoned order either accepting or rejecting the claim of the petitioner. But in doing so, shall strictly consider her case against the second post of teacher in Dakshin Khatalgool LP School by taking note of the Section 3(1)(x) of the Act of 2017.

5. The representation be submitted within a period of 15 days from today and the Director shall pass a reasoned order within a period of two months from Page No.# 4/4

the date of receipt of such application.

6. The petition is partly allowed in terms of the above.

JUDGE

Comparing Assistant