Gauhati High Court
Md. Nur Shahed Ali vs The State Of Assam And 2 Ors on 28 September, 2021
Page No.# 1/16
GAHC010209602015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2124/2016
MD. NUR SHAHED ALI
ASSISTANT PROFESSOR IN THE DEPARTMENT OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
DIST. NALBARI PERMANENT RESIDENT OF VILL and P.O. MAZDIA
P.S. SARTHEBARI
DIST. BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM and 2 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF HIGHER EDUCATION
DISPUR
GUWAHATI-781006
ASSAM.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI - 781019
3:THE GOVERNING BODY OF BARKHETRI COLLEGE
REP. BY ITS PRESIDENT
BARKHETRI COLLEGE
MUKALMUA
DIST. NALBARI
ASSAM
PIN - 781126.
------------
Advocate for : MRS.J M KONWAR
Page No.# 2/16
Advocate for : MR J H SAIKIA appearing for THE STATE OF ASSAM and 2 ORS.
Linked Case : WP(C)/5958/2015
NUR SHAHED ALI
ASSTT. PROFESSOR
DEPTT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
PERMANENT R/O VILL. and P.O. MAZDIA
DIST- BARPETA
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
GHY-6
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE GOVERNING BODY OF BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
REP. BY ITS PRESIDENT
4:THE BARKHETRI COLLEGE
REP. BY ITS PRINCIPAL CUM SECY.
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
PIN-781126
------------
Advocate for : MR.R KALITA
Advocate for : appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/3652/2014
MD. NUR SHAHED ALI
Page No.# 3/16
LECTURER IN THE DEPARTMENT OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
NALBARI
VERSUS
THE STATE OF ASSAM AND 6 ORS
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
EDUCATION HIGHER DEPT.
DISPUR
GHY-6
ASSAM
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE GOVERNING BODY OF BARKHERTRI COLLEGE
REP. BY ITS PRESIDENT
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
PIN-781126
4:THE BARKHETRI COLLEGE
REP. BY ITS PRINCIPAL CUM SECRETARY
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
PIN-781126
5:LOKMAN ALI
S/O MD. SAYED ALI
ASSTT. PROFESSOR/LECTURER
DEPT. OF HISTORY
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
PIN-781126
6:TAPAN BAISHYA
PROFESSOR/LECTURER
DEPT. OF ASSAMESE
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
Page No.# 4/16
ASSAM
PIN-781126
7:JAYNAB KHATUN
PROFESSOR/LECTURER
DEPT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
DIST- NALBARI
ASSAM
PIN-781126
------------
Advocate for : MR.R KALITA
Advocate for : MR. A R SIKDAR appearing for THE STATE OF ASSAM AND 6 ORS
Linked Case : WP(C)/6818/2014
MRS. JOYNAB KHATUN
D/O- LT. ABU BAKKAR SIDDIQUE
LECTURER / ASSTT. PROFESSOR
DEPTT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
NALBARI
ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
EDUCATION DEPTT. HIGHER
DISPUR
GHY- 6.
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY- 19.
3:THE GOVERNING BODY OF BARKHETRI COLLEGE
REP. BY ITS CHAIRMAN SRI AKAN CH. CHOUDHURY
P.O.- MUKALMUA
DIST.- NALBARI
ASSAM.
4:THE PRINCIPAL I/C CUM SECY.
GOVERNING BODY
BARKHETRI COLLEGE
Page No.# 5/16
MUKALMUA
NALBARI
ASSAM.
5:NUR SHAHED ALI
PART TIME LECTURER IN THE DEPTT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
NALBARI
ASSAM.
------------
Advocate for : MR.U K NAIR
Advocate for : MS.S BARUA appearing for THE STATE OF ASSAM AND 4 ORS
Linked Case : WP(C)/2475/2014
MRS. JOYNAB KHATUN and ANR.
LECTURER / ASSTT. PROFESSOR IN THE DEPTT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
NALBARI
ASSAM.
2: TAPAN BAISHYA
LECTURER/ ASSTT. PROFESSOR IN THE DEPTT. OF ASSAMESE
BARKHETRI COLLEGE
MUKALMUA
NALBARI
ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
EDUCATION DEPTT.
HIGHER DISPUR
GHY- 6.
2:THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GHY- 19.
3:THE GOVERNING BODY OF BARKHETRI COLLEGE
REPRESENTED BY ITS PRESIDENT NAMELY SRI AKAN CHOUDHURI
P/O- MUKALMUA
DIST.- NALBARI
ASSAM.
Page No.# 6/16
4:THE I/C PRINCIPAL OF BARKHETRI COLLEGE
CUM THE SECRETARY OF GOVERNING BODY OF BARKHETRI COLLEGE
P/O- MUKALMUA
DIST.- NALBARI
ASSAM.
5:MD. NUR SHAHED ALI
THE PART TIME LEECTURER IN THE DEPT. OF ARABIC
BARKHETRI COLLEGE
MUKALMUA
P/O- MUKALMUA
DIST- NALBARI
ASSAM.
------------
Advocate for : MR.N BARUAH
Advocate for : MS.P KHOUND appearing for THE STATE OF ASSAM AND 5 ORS
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 28.09.2021
JUDGMENT & ORDER (ORAL)
Heard Mr. BD Konwar, learned counsel for the petitioners in WP(C) No.
3652/2014, WP(C) No. 2124/2016, and WP(C) No. 5958/2015. Also heard Mr. S
Hoque, learned counsel for the petitioners in WP(C) No. 2475/2014 and WP(C)
No. 6818/2014 and Mr. K Gogoi, learned counsel for the respondents in the
Higher Education Department of the Government of Assam as well as Mr. JH
Saikia, learned counsel for the authorities under the Barkhetri College.
WP(C) No. 3652/2014
2. This writ petition has been instituted by Md. Nur Shahed Ali assailing the
appointments of Tapan Baishya as a Lecturer in Assamese in the Barkhetri
College on 25.10.2005 and that of Joynab Khatun as a Lecturer in Arabic in the
Page No.# 7/16
same college on 28.12.2006. The basic ground for assailing the appointments of
Tapan Baishya and Joynab Khatun is that the petitioner Md. Nur Shaheb Ali was
appointed in the Barkhetri College as a Lecturer in Arabic on 21.09.1991. In the
year 2001, there was a change in the Governing Body of Barkhetri College and
upon such change on 15.10.2001, the respondent No. 5 Md. Lokman Ali was
made the in-charge Principal of the college, who in fact, according to Mr. Nur
Shaheb Ali was junior to him.
3. Without going to the details, we take note of that the Governing Body so
constituted who had made the respondent No. 5 Md. Lokman Ali to be the in-
charge Principal of the College had also terminated the services of the petitioner
Md. Nur Shaheb Ali and another lecturer namely Mamoni Bhattacharjee. Both
Md. Nur Shaheb Ali and Mamoni Bhattacharjee instituted WP(C) No. 7642/2001
assailing the constitution of the Governing Body as per an order dated
15.10.2001 as well as the termination of service of Md. Nur Shaheb Ali and
Mamoni Bhattacharjee. WP(C) No. 7642/2001 was given a final consideration
along with two other writ petitions by the judgment dated 08.09.2005. In
paragraph 23 of the judgment dated 08.09.2005, it was held that the
composition of the Governing Body of the Barkhetri college was found to be in
contravention of the Rules concerned and accordingly it was held that the
resolution dated 25.11.2001 releasing Md. Nur Shaheb Ali and Mamoni
Bhattacharjee from the rolls of the Barkhetri College and also the consequential
letters of their release from service are unsustainable in law.
4. Although the termination of the petitioners were interfered by the
judgment dated 08.09.2005, but by the said judgment there was also a
requirement in paragraph 30 thereof for the Director of Higher Education,
Assam to conduct an enquiry and to decide the status of Md. Nur Shaheb Ali
Page No.# 8/16
and Mamoni Bhattacharjee. The enquiry was accordingly conducted by the
Director of Higher Education, Assam resulting in the order dated 18.04.2006, by
which it was held that both Md. Nur Shaheb Ali and Mamoni Bhattacharjee be
allowed to continue as Lecturers in Barkhetri College.
5. Even after the determination of the service status of Md. Nur Shaheb Ali
and Mamoni Bhattacharjee by the judgment of this Court dated 08.09.2005 and
also by the order of the Director of Higher Education, Assam dated 18.04.2006,
the in-charge Principal of Barkhetri College had allowed Md. Nur Shaheb Ali and
Mamoni Bhattacharjee to resume their duties as per the communication dated
19.12.2007. In the meantime, while the aforesaid events took place, Tapan
Baishya was appointed as a Lecturer in Assamese on 25.10.2005 and Joynab
Khatun was appointed as a Lecturer in Arabic on 28.11.2006. Subsequently by
an order dated 07.04.2014 of the Director of Higher Education, Assam it was
held in respect of Md. Nur Shaheb Ali that under the law he had joined Barkhetri
College on 20.03.2001 and therefore, his service in Barkhetri College would
have to be construed from 20.03.2001. In the aforesaid circumstance, the
appointment of Tapan Baishya as Lecturer in Assamese and Joynab Khatun as a
Lecturer in Arabic has been assailed.
WP(C) No. 2124/2016
6. WP(C) No.2124/2016 has been instituted by Md. Nur Shaheb Ali assailing
the determination of his date of joining in Barkhetri College to be 21.03.2001
and claiming that his date of joining should be 21.09.1991 and accordingly in
the inter-se seniority list of Assistant Professors of the College, he should be at
Serial No. 1.
WP(C) No. 5958/2015
Page No.# 9/16
7. WP(C) No. 5958/2015 has been instituted by Md. Nur Shaheb Ali assailing
the communication dated 02.09.2015 of the Director of Higher Education,
Assam, addressed to the Secretary, University Grants Commission regarding the
authentication of the Ph.D degree of Md. Nur Shaheb Ali, which he had obtained
from Chattisgarh University. The said communication is merely a request to the
UGC for an advice to the Director as to whether the Ph.D degree of Md. Nur
Shaheb Ali is valid for any state service. In response thereof, the Government of
India Ministry of Human Resource, Department of Secondary and Higher
Education stated that u/s 2(f) of the University Grants Commission Act, 1956, a
Degree/ Diploma from a University constituted under the Act of the Parliament
or State Legislature are automatically recognized for the purpose of government
service and it makes no difference if the courses are conducted through college
extension/study centre/campus/ academic college.
WP(C)No.2475/2014
8. WP(C)No.2475/2014 has been instituted by Joynab Khatun and Tapan
Baishya for a direction that the respective dates of joining in service of Md. Nur
Shahed Ali and Mamoni Bhattacharjee be reckoned to be 31.12.2007. At the
relevant point of time when the writ petition was filed, there were some
considerations going on for provincialising the services of the teachers of the
colleges under the Assam Venture Educational Institutions (Provincialisation of
Services) Act, 2011 (in short Act of 2011), where there was a relevance as
regards the inter se seniority of the teachers. If the date of appointment of Md.
Nur Shahed Ali is accepted to be 21.03.2001 as determined by the Director of
Higher Education Assam and the date of appointment of Joynab Khatun is
28.12.2006, admittedly, Md. Nur Shahed Ali will be senior to Joynab Khatun.
Accordingly in WP(C)No.2475/2014 Joynab Khatun assails the date of
Page No.# 10/16
appointment of Md. Nur Shahed Ali by claiming his date of appointment to be
31.12.2007 which was earlier noted and determined by the in-charge Principal
of the college to be his date of joining.
WP(C)No.6818/2014
9. In WP(C)No.6818/2014 Joynab Khatun assails the proposal by the Director
of Higher Education Assam for provincialising the services of Md. Nur Shahed Ali
under the Act of 2011.
10. It has also been brought to our notice that subsequent to the institution of
the aforesaid respective writ petitions, the services of Joynab Khatun and Tapan
Baishya have in the meantime been provincialised as Assistant Professors in
Arabic and Assamese respectively under the provisions of the Assam Education
(Provincialisation of Services of Teachers and Re-Organisation of Educational
Institutions) Act, 2017 (for short, the Act of 2017) and as on date, they are
continuing to receive the benefits of such provincialisation. It has also been
informed to us that even the services of Mamoni Bhattacharjee has been
provincialised as Assistant Professor in Assamese under the Act of 2017.
11. In the aforesaid conspectus of fact, the issue that remains to be
adjudicated is on the legal right of Md. Nur Shahed Ali to be provincialised
inasmuch as the other contending parties namely Joynab Khatun, Tapan
Bhaishya and Mamoni Bhattacharjee, have in the meantime been provincialised
and are availing the benefits of such provincialisation.
12. In the aforesaid situation, we also take note of that we are not required to
decide the issue raised in WP(C)No.2475/2014 as to whether the date of
appointment of Md. Nur Shahed Ali is to be 21.03.2001 or 31.12.2007 as
claimed by Joynab Khatun and Tapan Baishya. The issue regarding the date of
Page No.# 11/16
appointment of Md. Nur Shahed Ali was raised by Joynab Khatun and Tapan
Baishya in WP(C)No.2475/2014 in order to claim preference for provincialisation
under the Act of 2011. The relevance of claiming the date of appointment of
Md. Nur Shahed Ali to be 31.12.2007 flows from the claim of Joynab Khatun, as
already noted earlier that Joynab Khatun was appointed on 28.12.2006 and if
the date of appointment of Md. Nur Shahed Ali is taken to be 21.03.2001 he
would be senior to Joynab Khatun. But on the other hand, if it is taken to be
31.12.2007, it would be Joynab Khatun who would be senior for the purpose of
provincialisation. But such question does not require an adjudication any further
inasmuch as, Joinab Khatun has already been provincialised under the Act of
2017. As no adjudication is required as to the date of appointment of Md. Nur
Shahed Ali, we accept his date of appointment to be 21.03.2001 as determined
by the Director of Higher Education Assam.
13. Accordingly, as Joynab Khatun and Tapan Baishya have already been
provincialised and are not any further interested in pursuing with the litigation,
we are also not required to decide the validity of the appointment of Joynab
Khatun and Tapan Baishya as raised in WP(C)No.3652/2014.
14. In the aforesaid conspectus of facts, we confine our adjudication in this
batch of writ petitions on the question of entitlement of Md. Nur Shahed Ali to
be provincialised.
15. In this respect, we have taken note of a communication dated 05.09.2014
from the Director of Higher Education Assam addressed to the Commissioner
and Secretary to the Government of Assam in the Higher Education Department
with regard to the process of provincialisation of the services of
lecturers/assistant professors of Barkhetri College. In the said communication of
05.09.2014, it has been provided that the faculty members of Barkhetri College
Page No.# 12/16
who were referred in the said communication may be considered for
provincialisation of the services from the dates as shown therein. In the said list
of faculty members of Barkhetri College, the name of Md. Nur Shahed Ali
appears at Sl. No.21 showing his subject to be Arabic, and his date of
appointment to be 21.03.2001 and further showing that Md. Nur Shahed Ali is
qualified to be provincialised w.e.f. 01.01.2013.
16. Admittedly, the said process for provincialisation was made under the Act
of 2011. Section 4(1) of the Act of 2011 inter alia provides that the services of
the employees of all eligible venture education institutions under Section 3 of
the Act shall be deemed to have been provincialised on the date of coming into
force of the Act and they shall become employees of the State Government with
effect from that date i.e., the date on which the Act came into force. It is stated
that the Act of 2011 came into force w.e.f. 01.01.2013. Section 4(1) is extracted
as below:
"The services of the employees of all eligible Venture Educational
Institutions under Section 3 and who have already completed ten years of
services in such Educational Institution without any break from the date of
affiliation, recognition, concurrence or permission as the case may be, of the
concerned educational institutions as on the date of coming into force or this
Act, shall be deemed to have been provincialised and they shall become
employees of the State Government with effect from that date."
17. It is taken note of that Section 4(1) of the Act of 2011 provides that the
service of all such employees of the venture educational institutions eligible
under Section 3 shall be deemed to have been provincialised.
18. Section 3(1)(iii) of the Act of 2011 provides that in case of junior college or
a degree college the eligibility criteria specified is to have a consistent good
Page No.# 13/16
academic performance which would mean that at least 30% of the students
appearing for the final examination must have passed in any three examinations
held since 01.01.2006. Section 3(1)(iii) is extracted as below:
"(iii) In case of a High School or a Higher Secondary School or a Junior
College or a Degree College, the concerned educational institution must have a
consistent good academic performance which would mean that at least 30% of
the candidates appearing for the final examination must have passed in any
three examinations held since 01.01.2006".
19. The very communication of the Director dated 05.09.2014 gives an
indication that a verification had been conducted by the authorities of the
Higher Education Department as regards the eligibility of the teachers and staffs
of Barkhetri College to be provincialised and the authorities had arrived at its
conclusion that the requirement of Section 3(1)(iii) had been satisfied in respect
of those teachers whose names are included therein. Further the schedule to
the Act of 2011 also provides as to the maximum number of posts of
Lecturer/Assistant Professor etc., who can be provincialised under the Act of
2011. The communication of the Director dated 05.09.2014 is also indicative of
the aspect that the names of Assistant Professors included therein do satisfy the
requirements of the Schedule to the Act of 2011 for being provincialised.
20. In the aforesaid circumstance, we have to understand that the names of
the Assistant Professors contained in the communication dated 05.09.2014 of
the Director of Higher Education Assam do meet the requirement of the Act of
2011 for being provincialised. Once there is a determination on the satisfaction
of the requirements of Section 3 and the Schedule to the Act of 2011, as
regards the Assistant Professors included in the communication dated
05.09.2014 it has to be understood on a reading of Section 4(1) of the Act of
Page No.# 14/16
2011 that such Assistant Professors whose names have been included are
deemed to have been provincialised w.e.f. the date when the Act of 2011 came
into force i.e. 01.01.2013.
21. The expression 'deemed to have been provincialise' is a legal fiction under
the law that irrespective of it factually happening it is the provision of law itself
that the event had occurred meaning thereby that the services of those
Assistant Professors whose names were included in the communication dated
05.09.2016 of the Director of Higher Education, Assam have been provincialised
under the law w.e.f. 01.01.2013.
22. From the said point of view, we have to conclude that by operation of law
as provided in Section 4(1) of the Act of 2011, the services of Md. Nur Shahed
Ali had been provincialised w.e.f. 01.01.2013 and on being provincialised he
would be entitled to all such consequential benefits of provincialisation.
23. Needless to say that the consequential relief that Md. Nur Shahed Ali
would be entitled by virtue of being provincialised from 01.01.2013 be given on
current basis from the month of November, 2021 and the arrear within a period
of 6 (six) months thereof.
24. But however Mr. K. Gogoi, learned counsel for the Higher Education
Department raises an issue that the Ph.D degree of Md. Nur Shahed Ali requires
some reconsideration as regards its acceptability in law. For the purpose, Mr. K.
Gogoi refers to a communication from the Director of Higher Education dated
02.09.2015 adressed to the Secretary of University Grants Commission as
regards the authentication of the Ph.D degree awarded by the Chatishgarh
University to Md. Nur Shahed Ali.
25. From the said point of view, we have to understand that the issue
Page No.# 15/16
regarding acceptability of the Ph.D degree of Md. Nur Shahed Ali flows from the
said communication of the Director dated 02.09.2015. As we have already
concluded that by operation of law under Section 4(1) of the Act of 2011, the
services of Md. Nur Shahed Ali had already been provincialised w.e.f.
01.01.2013, we have to understand that the process initiated by the Director of
Higher Education, Assam as regards the acceptability and validity of the Ph.D
degree of Md. Nur Shahed Ali had occasioned at a date subsequent to his date
of being provincialised. In the circumstance, it has to be understood that it is a
subsequent process by the authorities to determine the validity of a Ph.D degree
after the person concerned had been provincialised and is in a regular service.
Accordingly, to carry the said process, further the law applicable in respect of
arriving at any conclusion as regards the validity of the qualification of an
employee after the employee had been appointed on a regular basis and serving
would have to be followed.
26. As Md. Nur Shahed Ali had been provincialised by operation of law w.e.f.
01.01.2013 in the circumstance now if the Director of Higher Education, Assam
or any other authority in the department intends to arrive at any conclusion
regarding the acceptability and validity of the Ph.D degree of Md. Nur Shahed
Ali, the required procedure for the purpose would have to be followed.
27. Accordingly, we are not expressing any view on the merit of the issue as
regards the validity and acceptability of the Ph.D degree of Md. Nur Shahed Ali
and leave it open for the authorities to arrive at their own decision if so advised
but by following due procedure of law required for the purpose. Any decision
that may be taken would have to be made by following the due procedure of
law.
28. Accordingly, in view of such conclusion, we are not required to determine
Page No.# 16/16
the issue raised in WP(C) 5958/2015 as regards the validity of the Ph.D degree
of Md. Nur Sahed Ali. As regards WP(C) 2124/2016 regarding the claim of Md.
Nur Shahed Ali that his date of appointment ought to have been 29.09.1991, we
take note of certain materials that are available on record, without giving
specific reference to it, that Md. Nur Shahed Ali was working on a regular basis
in some other institution up to 20.03.2001 and therefore, the Director by a
reasoned order arrived at the conclusion that his date of appointment in
Barkhetri College would construed to have been 21.03.2001. As no counter
materials are brought before the Court on the said issue, we accept the date of
appointment of Md. Nur Shahed Ali to be 21.03.2001 and we do not find any
further requirement to adjudicate the claim that it should be 29.09.1991. Before
concluding, we however provide that as Joynab Khatun, Mamoni Bhattcharjee
and Tapan Baishya have already been provincialised in the meantime, we do not
express any view on such provincialisation. If the respondents have any issue on
the same, any action taken that may be taken would have to be done only by
strictly following the due procedure of law.
29. Writ petition stands answered in the manner as indicated above.
JUDGE
Comparing Assistant
