Page No.# 1/ vs The State Of Assam And Anr
2022 Latest Caselaw 433 Gua

                                                        Page No.# 1/10

GAHC010012332022




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

                           Case No. : WP(C)/736/2022

         DEVA KUMAR PHUKAN AND 36 ORS
         C/O LT. CHANDRA RAM PHUKUN
         VILL- 1 NO. BANTOWGAON
         P.O. DHAKUAKHANA
         PIN-787055
         DIST. LAKHIMPUR, ASSAM

         2: DHARMESWAR MILL
          C/O PADMESWAR MILI
         VILL- RUPAHI MISING
         P.O. PATHALI PAM
         P.S. BOGINADI
         PIN-787056
         DIST. LAKHIMPUR
         ASSAM

         3: MAHESWAR MILI
          C/O LT. KASEHEL MILI
         VILL- RUPAHI MISING
         PO. PATHALI PAM
          P.S. BOGINADI
         PIN-787056
         DIST. LAKHIMPUR
         ASSAM

         4: BIJU KR. PEGU
          C/O ANANDARAM PEGU
         VILL- HARMOTI
         P.O. MARBIL
         P.S. LALUK
          PIN-784160
         DIST. LAKHIMPUR
         ASSAM
                            Page No.# 2/10

5: DEVANANDA PEGU
 C/O LT. RAJEN PEGU
VILL- GORPARA GAON
P.O. MOINAPARA
PIN-787029
DIST. DHEMAJI
ASSAM

6: DINESH CHUTIA
 C/O LT. LAKHAN CHUTIA
VILL- MAHARA BORCHAPOI
P.O. GUNASUTI
PIN-787001
DIST. LAKHIMPUR
ASSAM

7: MANDITA GOGOI
 C/O KRISNA KANTA PHUKAN
VILL- MOIDOMIA
P.O. MOIDOIA
PIN-787032
DIST. LAKHIMPUR
ASSAM

8: PRASANNA SARMA
 C/O LT. MANIK SARMA
VILL- MAGONI PAM
P.O. MAGONI PAM
PIN-784168
DIST. BISWANATH
ASSAM

9: SABIN KAKATI
 C/O TARINI KAKATI
VILL- AMTOL
 BERGAON
P.O. MAZ ROWMARI
PIN-784117
DIST. SONITPUR
ASSAM

10: MINATI SONOWAL
 C/O JITEN CH. RABHA
VILL- BELSERI T/E

P.O. DHEKIAJULI
PIN-784110
DIST. DHEKIAJULI
                          Page No.# 3/10

ASSAM

11: BIMAL BHUYAN
 C/O DAMBARU BHUYAN
VILL- 1 NO. SAKURA
P.O. MIKIR BORA CHOWK
PIN-784178
DIST. BISWANATH
ASSAM

12: JATIN PEGU
 C/O KUKAI PEGU
VILL- CHARIBARI
P.O. RAWANAMUKH
PIN-784168
DIST. BISWANATH
ASSAM

13: SEKENDAR PATRI
 C/O RAMESWAR PATRI
VILL- RAJABAHAR
P.O. RAJABARI
PIN-784168
DIST. BISWANATH
ASSAM

14: DOLI BARMAN
 C/O BIREN BORA
VILL- DHENUDHARA
PO. GOHPUR
PIN-784168
DIST. BISWANATH
ASSAM

15: PADMIRAM PATGIRI
 C/O NAYANRAM PATIGIRI
VILL- RAWNAMMUKH
P.O. RAWANAMUKH
PIN-784169
DIST. BISWANATH
ASSAM

16: RINA HAZARIKA
 C/O DRONA HAZARIKA
VILL- BORDOP
 P.O. BORDOP

PIN-784178
                             Page No.# 4/10

DIST. BISWANATH
ASSAM

17: APARAJIT BHUYAN
 C/O KABIN BARUA
VIL- SUTARGAON
P.O HOWAJAN
PIN-784169
DIST. BISWANATH
ASSAM

18: MONOWARA BARBHUIYAN
 C/O KAFIL UDDIN
VILL- KHADIMAN
P.O. BADARPUR
PIN-788803
DIST. KARIMGANJ
ASSAM

19: PRATIVA BORGOHAIN
 C/O KARUNA GOGOI
VILL- BALIGAON
 P.O. DHAKUAKHANA
PIN-787055
DIST.LAKHIMPUR
ASSAM

20: KALPANA CHUTIA
 C/O NITEN GOGOI
VILL- JORHAYIYA GOHAIGAON
P.O. KADOM
PIN-787032
DIST. LAKHIMPUR
ASSAM

21: HALIMA BEGUM
 C/O SOLEMAN ALI FARUKIA
VILL- BEEHAPATY
P.O. DHARMAPUR
PIN-7841160
DIST. LAKHIMPUR
ASSAM

22: ROFIQUL ISLAM
 C/O SOFIUR UDDIN
VILL- BORCHOLA NO. 1

P.O. BORCHOLA
                               Page No.# 5/10

PIN-787023
DIST. LAKHIMPUR
ASSAM

23: ZAFAR SHARIF
 C/O SAIFUL ISLAM
VILL- KUTUBPUR
P.O. KUTUBPUR
PIN-787054
DIST. LAKHIMPUR
ASSAM

24: SHAJAHAN SHIRAJ
 C/O SAIFUL ISLAM
VILL- KUTUBPUR
P.O. KUTUBPUR
PIN-787054
DIST. LAKHIMPUR
ASSAM

25: MAINUL HOQUE CHOUDHURY
 C/O SAMSUL HOQUE CHOUDHARY
VILL- DAULATPUR
P.O. DAULATPUR
PIN-787001
DIST. LAKHIMPUR
ASSAM

26: BIPUL CH. DAS
 C/OLT. ACHYUT DAS
VILL- BEJIBARI
P.O. LALUK
PIN-787001
DIST. LAKHIMPUR
ASSAM

27: HAZRAT ALI
 C/O ABDUL KADDUS
VILL- HARIPUR
P.O. KOLAKHOWA
PIN-787001
DIST. LAKHIMPUR
ASSAM

28: SHIRAJUL ISLAM
 C/O ABUL KASEM
VILL- DOULATPUR
P.O. DOULATPUR
                                     Page No.# 6/10

PIN-787054
DIST. LAKHIMPUR
ASSAM

29: ABDUL BARI
 C/O ASROF ALI
VILL- DAULATPUR
P.O. DAULATPUR
PIN-787054
DIST. LAKHIMPUR
ASSAM

30: HABIB ULLAH
 C/O NURUL AMIN
VILL- GOHINDOLOI
P.O. SONAPUR
PIN-787001
DIST. LAKHIMPUR
ASSAM

31: NETRA PRASAD KATEL
 C/OLT. CHHABILAL KATEL
VILL- AMTOBHER GAON
P.O. AZ ROWMARI
PIN-784117
DIST. SONITPUR
ASSAM

32: JAYABRATA PURKAYASTHA
 C/O LT. KSHITISH RN. PURKAYASTHA
VILL- KUCHIRKUNA
P.O. SRIGOURI
PIN-788806
DIST.KARIMGANJ
ASSAM

33: MOHBUBUL HOQUE
 C/O SAMSUL HOQUE
VILL- GORKHAPAM
P.O. BADARPUR
PIN-788806
DIST. KARIMGANJ
ASSAM

34: JAMIR UDDIN
 C/O ABDUL NAYEEM
VILL- KHAGAIL
P.O. CHATAL
                                                                  Page No.# 7/10

            PIN-788720
            DIST.KARIMGANJ
            ASSAM

            35: HUSSAIN AHMED
             C/O LT. ABDUL MATIN
            VILL- BAKARSHAL
            P.O. JABAINPUR
            PIN-788713
            DIST.KARIMGANJ
            ASSAM

            36: RAKHI CHANDA
             C/O PRABAL KANTA DAS
            VILL- BADARPUR GHAT
            P.O. BADARPUR
            PIN-788803
            DIST.KARIMGANJ
            ASSAM

            37: BIBEK NATH
             C/O LT. BIPUL NATH
            VILL- TARAPUR
            P.O. JALALPUR
            PIN-788816
            DIST.KARIMGANJ
            ASSA

            VERSUS

            THE STATE OF ASSAM AND ANR
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            EDUCATION DEPARTMENT (SECONDARY), SACHIVALAYA, DISPUR,
            GUWAHATI-781006, ASSAM

            2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM

             KAHILIPARA
             GUWAHATI -78101

Advocate for the Petitioner   : MR. R ALI

Advocate for the Respondent : SC, SEC. EDU.
                                                                      Page No.# 8/10


                                BEFORE
           HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                   O R D E R

09.02.2022

Heard Mr. R Ali, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned counsel for the respondents in the Secondary Education Department of the Govt. of Assam.

2. The petitioners herein are Assistant Teachers in different High Schools in the State of Assam and they were appointed by the school managing committee from the year 1991 onwards, at a stage when the respective schools were at the venture institution.

3. According to the petitioners, there was a re-organization in the year 2011 to the extent that, contrary to what was provided earlier, Class-I to V was declared to be L.P. School and Class-VI to VIII was declared to be ME School.

4. In the year 2011, the Act namely, Assam Venture Educational. Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011) was enacted providing for provincialisation of the teachers of the venture educational institutions. The Act of 2011 provided for the number of teachers to be provincialised in a given school which again was dependent on the number of classes/sections that a given school may have. The petitioners raise a claim that had the reorganization of declaring Class-I to V to be L.P. School and Class-VI to VIII to be M.E. Schools have not been made as per the number of classes that the concerned schools may have had, there was a good possibility of the present petitioners to have been provincialised. But because of the reorganization that had taken place, the number of teachers that would have to Page No.# 9/10

be provincialised underwent a change and because of such change the petitioners who otherwise would have been entitled for provincialisation have been left out.

5. Subsequently, by the judgment and order dated 23.09.2016 in WP(C) 3190/2012, the Act of 2011 was declared to be ultra vires. Upon the Act of 2011 been declared to be ultra vires, the subsequent Act namely Assam Education (Provincialisation of Services of Teachers and Reorganization of Educational Institutions) Act, 2017 (in short Act of 2017) was enacted. It is the grievance of the petitioners that even under the Act of 2011, their cases were not considered for provincialisation.

6. According to the petitioners as they were disadvantaged because of the reorganization that they had taken place in the year 2011, they have at least a legal right for their cases to be considered for provincialisation under the Act of 2017.

7. We have noticed that the respondent authorities had not made any application of mind on the aforesaid issue raised by the petitioners nor any reasoned order is available on record on the said issue. In the circumstance, we are of the view that the interest of justice will be met on a joint representation being submitted by the writ petitioners raising the aforesaid claim before the Principal Secretary to the Govt. of Assam in the Secondary Education Department. Upon the representation being submitted, the Principal Secretary shall consider the materials on record and also the circumstance in which the petitioners have claimed to have been disadvantaged as because of the reorganization and upon considering the materials, if the Principal Secretary is of the view any legal right exists in favour of the petitioners for provincialisation, Page No.# 10/10

appropriate orders be passed and to the contrary if no right is found to be in favour of the petitioners, a reasoned order be passed, and thereupon communicate it to the petitioners. For the purpose, two representatives of the petitioners may also be given an opportunity of hearing by the Principal Secretary so as to enable the petitioners to present their cases in the manner they would like to present. Along with the representation a copy of this petition be also submitted before the Principal Secretary.

8. The Principal Secretary accordingly is directed to pass a reasoned order within a period of three months from the date of submission of such representation by the petitioners. In doing so, shall take into account all the attending facts and circumstances as indicated above as well as what the petitioners would like to raise in their representation.

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

JUDGE

Comparing Assistant