Kamal Das vs The State Of Assam And4 Ors
2022 Latest Caselaw 4824 Gua

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GAHC010046592021




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

                         Case No. : WP(C)/1701/2021

         KAMAL DAS
         S/O LATE DINESH DAS, R/O VILL. BONBHAG SOLMAR, P.O. KHUKUNDI,
         DIST. NALBARI, PIN 781303, ASSAM.



         VERSUS

         THE STATE OF ASSAM AND4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM, EDUCATION DEPTT. (ELEMENTARY), DISPUR, GUWAHATI 781006

         2:THE STATE OF ASSAM
          REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM
          EDUCATION DEPTT. (SECONDARY)
          DISPUR
          GUWAHATI 781006

         3:THE DIRECTOR
          ELEMENTARY EDUCATION
          KAHILIPARA
          GUWAHATI 781019

         4:THE DIRECTOR
          SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI 781019

         5:SUNIL RAJBONSHI
          S/O LATE PRANESWAR RABONGSHI
          R/O VILL. BANBHAG
          SOLMARI
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             P.O. KHUKHUNDI
             DIST. NALBARI
             PIN 781303
             ASSAM

Advocate for the Petitioner   : MR. D S DEKA

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HON'BLE MR. JUSTICE NELSON SAILO 07-12-2022

Heard Mr. D.S.Deka, learned counsel for the petitioner. Also heard Mr. R. Mazumdar, learned Standing Counsel, Secondary Education appearing for the Department; and Ms. K. Devi, learned counsel for Respondent No.5.

2. Having regard to the nature of the grievance projected by the petitioner and the response given by the learned counsel for Respondent No.5, the matter is taken up for disposal at this stage.

3. The case of the petitioner is that he was appointed in Sankardev Balika Vidyapith M.E. School pursuant to the resolution passed by the School Management Committee on 25.09.2006, after the death of his father who was working as Grade-IV employee in the said school. The petitioner was appointed as Grade-IV employee on honorary basis and is serving as such for 15 long years. While the petitioner was expecting the provincialisation of his service, he came to learn that the Respondent No.5, who was also working as a Grade-IV employee in the Sankardev Balika Vidyapith High School, was being considered for provincialisation Page No.# 3/4

after the two schools were amalgamated as Sankardev Balika Vidyapith High School, and approached the Commissioner and Secretary, Elementary Education Department, by filing a representation dated 1.11.2019. However, as the same was not considered by the said authority, the petitioner has approached this Court.

4. The case of the Respondent No.5, on the other hand, is that he has been serving in the High School Section prior to amalgamation since 16.11.1993 and that when the services of teaching and non-teaching staff of the High School were provincialized under the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 (for short' the Act of 2011'), the services of the Respondent No.5 ought to have been provincialized and since the same was not done, he has every right to be considered for provincialisation. The further case of the Respondent No.5 is that he had approached this Court by filing W.P.(C) No.3224 of 2020 with a prayer for directing the respondent authorities to consider the provincialisation of his service and the writ petition was disposed of vide judgment dated 25.11.2020 directing the Director of Secondary Education to consider the case of the Respondent No.5 for provincialsiation. However, the present writ petitioner having approached this Court through the present writ petition, the process of considering the provincialisation of Respondent No.5 into service could not be processed further.

5. While such is the claim of the petitioner and the Respondent No.5 as projected herein above, the Secondary Education Department has not filed their affidavit-in-opposition till date. Having regard to the fact that a direction was already issued by this Court for considering the case of the Page No.# 4/4

Respondent No.5 vide judgment dated 25.11.2020 passed in W.P.(C) No.3224 of 2020, and also having regard to the fact that the present writ petitioner has similar claim for provincialisation of his service, the Court is of the considered view that the Director of Secondary Education should consider the respective claims of the parties by examining all the relevant documents which may be produced by the parties concerned and, thereafter, take a final decision in the matter.

6. Accordingly, this writ petition is disposed of with a direction to the Director of Secondary Education, Assam (Respondent No.4) to consider the case of the petitioner as well as the Respondent No.5 for provincialisation of their services in the school concerned by examining all the relevant documents in the power and possession of the Department and also produced by the parties concerned and, thereafter, take a decision by way of a speaking order. It is also made clear that before coming to a decision, the Director shall give opportunity of personal hearing to the parties concerned and the entire exercise be completed as expeditiously as possible and preferably within an outer limit of two months from the date of receipt of a certified copy of this order.

JUDGE

Comparing Assistant