Gauhati High Court
Jahanara Begum vs The State Of Assam And 3 Ors on 13 September, 2021
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GAHC010135342021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4365/2021
JAHANARA BEGUM
W/O ALIM UDDIN
VILLAGE RATABARI, PO AND PS RATABARI, 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
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 13-09-2021
Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr.
Ganesh Pegu, 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 Kaiyakhal V.L.P.
School and he has been working as such since 01.01.2009. 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
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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 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 Anowar Uddin Ahmed
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 Kaiyakhal V.L.P. 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
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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 Kaiyakhal V.L.P. 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 the
date of receipt of such application.
6. The petition is partly allowed in terms of the above.
JUDGE
Comparing Assistant
