Gauhati High Court
Julfikar Ali vs The State Of Assam And 4 Ors on 16 September, 2021
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GAHC010137722021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4446/2021
JULFIKAR ALI
S/O SOLEMANUDDIN AHMED
RESIDENT OF VILLAGE AND PO LACHIMA, PS MUKALMUA, DIST
NALBARI, ASSAM, 781312
VERSUS
THE STATE OF ASSAM AND 4 ORS
COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION
HIGHER DEPARTMENT, DISPUR GUWAHATI 06
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
3:GAUHATI UNIVERSITY
REPRESENTED BY ITS REGISTRAR
JALUKBARI
GUWAHATI 14
4:THE DEPUTY CONTROLLER OF EXAMINATIONS
GAUHATI UNIVERSITY
JALUKBARI
GUWAHATI 14
5:BARKHETI COLLEGE
REPRESENTED BY THE PRESIDENT
GOVERNING BODY
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MUKALMUA
DIST NALBARI
ASSAM 78112
Advocate for the Petitioner : MR. S K MUKTAR
Advocate for the Respondent : SC, HIGHER EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT
Date : 16-09-2021
Heard Mr. S.K. Muktar, learned counsel for the petitioner. Also heard
Mr. A.R. Tahbildar, learned counsel for the respondents No.1 and 2 being the
authorities under the Higher Education Department, Mr. P.J. Phukan, learned
counsel for the respondents No.3 and 4 .
2. Considering the nature of the order proposed to be passed, we deem it
appropriate that notice need not be issued to the respondent No.5.
3. The petitioner was appointed as a Lecturer in Philosophy in the Barkhetri
College as per the appointment letter No.BCM/Appointment/2010/1301 dated
31.07.2010 and since then he has been continuing to serve as a lecturer in the
college. When the case of the petitioner was subjected to the process of
provincialisation under Assam Education (Provincialisation of Services of Teacher
and Re-organization of Educational Institutions) Act, 2017 (in short Act of
2017), the same culminated in a rejection of the petitioner for provincialisation.
His name appears in the list of incumbent not considered for provincialisation
which was uploaded in the website of the Higher Education Department. The
name of the petitioner appears at serial No.585 of the list of teachers who were
refused the provincialisation. The reason given in the rejection is that the
petitioner who is an Assistant Professor in the Barkhetri College in the subject
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Philosophy was not provincialised on the ground of 'less appear'. It is stated that
the expression 'less appear' means that the subject in which the petitioner was
serving did not have more than 150 students appearing in the last final
examination. The provincialisation of the petitioner is stated to be otherwise
governed by the provision of Section 3(1)(ix) of the Act of 2017, which inter alia
provides as under:-
"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 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."
4. A reading of Section 3(1)(ix) goes to show that for a venture degree
college in order to be entitled for an additional post in a given subject, the
minimum students appearing in the last final examination of the highest class
for that particular subject must be more than 150 for one additional post. In
other words, the factual determination to be made by the authorities was
whether the subject philosophy in Barkhetri college has more than 150 students
during the last final examination. When the provincialisation of the petitioner
was refused on the ground of there being 'less appear', it has to be understood
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that the respondent authority were of the view that the Barkhetri college in the
subject Philosophy had less than 150 student in the last final examination.
5. To controvert the said view taken by the respondent, the petitioner refers
to a document dated 19.02.2021 under the signature of Deputy Controller of
Examination, Gauhati University showing the number of student who appeared
in the B.A. final 6th semester examination in Barkhetri college for the year 2016,
2017, 2018 and 2019. The document under the signature of the Deputy
Controller of Examination of Gauhati University shows that for the year 2016,
the total number of students who appeared in Philosophy (general) was 174,
and the total number of students for combined Philosophy (General) and
Philosophy (Major) was 190, similarly for the year 2017, it was 241 and 256
respectively; for the year 2018 it was 208 and 230 and for the year 2019, it was
258 and 276 respectively.
6. The aforesaid figures from either point of view shows that in the last final
examination in the subject Philosophy of Barkhetri college had more than 150
students.
7. As the claim of the petitioner for being provincialisation stood rejected on
the ground of less number of students appearing, we are of the view that the
said view appears in direct conflict with the statement of the Deputy Controller
of Gauhati University. Accordingly, the matter stands remanded back to the
Director of Higher Education Department, Assam to pass a fresh order as
regards the provincialisation of the petitioner by taking note of the Annexure-j
page 57 document dated 19.02.2021 as regards the number of students who
had appeared in the last final examination in the subject Philosophy in Barkhetri
college. After taking the said document into consideration, the Director shall
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pass a reasoned order either accepting or rejecting the claim of the petitioner
for provincialisation depending the reason that the Director may give. If the
order is in favour of the petitioner, consequential action be also taken and if it is
against the petitioner, the petitioner be communicated with the reasoned order
to be passed.
8. Along with the certified copy the petitioner also intends to give the copy of
the writ petition before the Director which he may do so. The Director to pass
the reasoned order within a period of two months from the date of receipt of
the certified copy of the order.
9. Writ petition stands disposed of in the above terms.
JUDGE
Comparing Assistant
