Page No.# 1/7 vs The State Of Assam And 6 Ors
2022 Latest Caselaw 382 Gua

                                                                Page No.# 1/7

GAHC010216252021




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

                             Case No. : WP(C)/44/2022

         KORMAN ALI SHEIKH AND ANR
         S/O ALABOX ALI SHEIKHH, R/O VILL-GURGURIPARA, P.O.-BONDIHANA,
         P.S.-FAKIRGAN, DIST-DHUBRI, ASSAM, PIN-783349

         2: MOYNUL HOQUE
          S/O SOHAR UDDIN
          R/O VILL-SALMARA
          PART-IV
          P.O.-BONDIHAN
          DIST-DHUBRI
         ASSAM
          PIN-78334

         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
         GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT,
         DISPUR, GUWAHATI-6, ASSAM

         2:THE JOINT SECRETARY TO THE GOVERNMENT OF ASSAM
          ELEMENTARY EDUCATION DEPARTMENT
          DISPUR
          GUWAHATI-6
         ASSAM

         3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM
          KAHILIPARA
          GUWAHATI-19
          KAMRUP(M)
         ASSAM

         4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          CUM MEMBER SECRETARY
                                                                  Page No.# 2/7

             DISTRICT SCRUTINY COMMITTEE
             DIST- DHUBRI
             ASSAM

            5:THE MANAGING COMMITTEE
             GURGURIPARA ISLAMIA M.E. MADRASSA
             REPRESENTED BY ITS PRESIDENT
            VILL-SALAMARA
             PART-IV
             P.O.-BONDIHANA
             DIST- DHUBRI
            ASSAM
             PIN-783349

            6:THE HEADMASTER CUM SECRETARY
             GURGURIPARA M.E. MADRASA
             PART-IV
             P.O.-BONDIHANA
             DIST- DHUBRI
            ASSAM
             PIN-783349

            7:SHORIFUL ISLAM
             S/O LATE HAJI SUKUR ALI DEWANI
            VILL- PADMERALGA PT. I
             P.O.-PADMERALGA
             P.S.-FAKIRGANJ
             DIST- DHUBRI
            ASSAM
             PIN-78334

Advocate for the Petitioner   : MR. A SARMA

Advocate for the Respondent : SC, ELEM. EDU




                           BEFORE
      HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        ORDER

07.02.2022

Heard Mr. A Sarma, learned counsel for the petitioners. Also heard Mr. B Page No.# 3/7

Kaushik, learned counsel for the respondents No.1, 2, 3 and 4 being the authorities under the Elementary Education Department, Government of Assam and Mr. AR Bhuiyan, learned counsel for the respondent No.7 who has appeared as the caveator.

2. Considering the nature of the order proposed to be passed, notice is not required to be issued on the respondents No.5 and 6.

3. The petitioner is a science teacher in Gurguriapara Islamia M.E. Madrassa under the Bilasipara Education Block in the Dhubri district having been appointed on 20.07.1991, whereas the respondent No.7 is also a science teacher of the school concerned having been appointed on 17.11.2008. By the order dated 22.09.2016, the services of the respondent No.7 Shoriful Islam was provincialised as the science teacher of the school and in doing so his date of joining was shown as 17.11.2008. The said order of provincialisation of the respondent No.7 was assailed by the writ petitioner in WP(C)No.6530/2016 which was given a final consideration by the order dated 28.01.2020. Paragraphs 14 and 19 of the order dated 28.01.2020 are extracted as below:

"14. Accordingly, this Court, without making any observation on the claims and counterclaims of the respective parties as regards the genuineness of their appointment orders issued by the School Managing Committee as well as the approval orders issued by the State authority, directs the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, to re-examine the respective claims of the aforesaid three teachers and pass appropriate order after hearing all the parties taking into consideration all parameters, including seniority, as provided under the rules, as regards their entitlement to the post claimed by them and also their claim for provincialisation."

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"19. Accordingly, this Court holds that the validity of the order dated 22.09.2016 will depend on the decision that will be arrived at by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, on undertaking the exercise as directed hereinabove in WP(C) 840/2016 and WP(C) 852/2016. After undertaking such exercise as directed by this Court, the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, will issue a speaking order as regards the claims and counter-claims made by the above-named three teachers and also with regard to the validity of the order dated 01.02.2016. In other words, the validity and implementation of the orders dated 01.02.2016 and dated 22.09.2016, impugned in these writ petitions will depend on the fresh order that will be passed by the Commissioner & Secretary to the Government of Assam, Education (Elementary) Department, after undertaking the exercise as directed above by giving due opportunity of hearing to all the necessary parties, including the three petitioners. The date, time and venue of the hearing will be intimated to the petitioners well in advance."

4. A reading of the paragraph 14 of the order dated 28.01.2020 makes it discernible that there was a requirement of the Commissioner and Secretary to the Government of Assam, Elementary Education Department to re-examine the respective claims of the three teachers who were all claiming for provincialisation as the science teacher of the school concerned. A re- examination would also be required as regards the question as to whether respondent No.7 having joined the school on 17.11.2008 would also be entitled for provincialisation under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, the Act of 2011).

5. Paragraph 19 of the order dated 28.01.2020 provides that the order of Page No.# 5/7

provincialisation in favour of the respondent No.7 would be subjected to the decision that the Commissioner and Secretary may arrive at. In response thereof, the order dated 12.11.2021 has been passed by the Special Commissioner, Elementary Education Department.

6. In the order dated 12.11.2021 the following decision has been rendered by the Special Commissioner, Elementary Education Department which is extracted as below:

"(i) Since the service of Shri Shoriful Islam was already provincialised as Science Teacher of Gurguripara Islamia MEM vide Order No.EPD/H/297/2015/132 dated 22/09/2016, which was issued prior to declaration of the relevant Provincialisation Act as unconstitutional by Hon'ble High Court, the stay order issued vide No.EPD/H/154/2016/11 dated 09/11/2016 may be withdrawn.

(ii) Since the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 is no longer exist, Director of Elementary Education, Assam may examine the matter of provincialisation of service of Shri Korman Ali Sheikh as Asstt. Teacher of Gurguripara Islamaia MEM under the provisions of the Assam Education (Provincialisation of Services and Re- organisation of Educational Institutions) Act, 2017 and submit proposal accordingly.

(iii) Since the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 is no longer exist and Shri Moynul Hoque was holding an additional post of Asstt. Teacher in Gurguripara Islamaia MEM, the claim of Shri Moynul Hoque for provincialisation of his service as Asstt.

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Teacher cannot be considered.

This is issued in compliance of Hon'ble Gauhati High Court's judgment & order dated 28.01.2020 passed in WP(C)No.6530/2016 (Korman Ali Sheikh Vs. the State of Assam & 5 ors.) Linked case WP(C)840/2016 (Moynul Hoque Vs. the State of Assam and 6 Ors.) Linked Case WP(C)No.852/2016 (Korman Ali Sheikh Vs. the State of Assam and 5 Ors.)."

7. A reading of the order of the Special Commissioner, Elementary Education Department would go to show that the requirement of the earlier order dated 28.01.2020 in WP(C)No.6530/2016 had not been duly complied with.

8. The Special Commissioner was required to examine the issues raised in the said writ petition and as to whether the respondent No.7 could have been provincialised under the Act of 2011 in view of the fact that he had joined on 17.11.2008. The said issue apparently has not been decided by the Special Commissioner. Accordingly, we interfere with the order dated 12.11.2021 of the Special Commissioner, Elementary Education Department and remand the matter back to the Special Commissioner, Elementary Education Department for passing a fresh order by taking note of the requirement of the order dated 12.01.2021 in WP(C)No.6530/2016.

9. The requirement of passing the fresh order be done within a period of one month from the date of receipt of a certified copy of this order.

10. As the Special Commissioner is required to take a decision on the validity Page No.# 7/7

of the order dated 22.09.2016 which apparently was passed under the Act of 2011, therefore, a decision be arrived without taking recourse to the aspect that the Act of 2011 had in the meantime been declared ultra-vires.

11. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant