Gauhati High Court
Sahidur Islam vs The State Of Assam And 7 Ors on 27 January, 2022
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GAHC010133032021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No: WP(C)/1345/2021
SAHIDUR ISLAM
S/O- MOKTEL HUSSAIN
R/O- VILL- TAKIMARI
P.O. PATAMARI
DIST.- DHUBRI
ASSAM
PIN- 783324
VERSUS
THE STATE OF ASSAM AND 7 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION DEPTT. (ELEMENTARY)
DISPUR
GHY-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE DY. DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
4:THE EXECUTIVE DIRECTOR
SARBA SIKSHA ABHIYAN MISSION (SSA)
ASSAM
KAHILIPARA
GHY-19
5:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
DHUBRI
ASSAM
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6:THE DISTRICT SCRUTINY COMMITTEE
DHUBRI
REP. BY ITS CHAIRMAN
DIST.- DHUBRI
ASSAM
7:ABDUR RASHID SK
S/O- LT. VASHA SK
DISCHARGING AS THE HEAD MASTER
WEST GASPARA GIRLS M.E.MADRASSA
GAURIPUR
DHUBRI
P.O.- DHARMASHALA
DIST.- DHUBRI
ASSAM
PIN- 783324
8:ABUAL HUSSAIN SK
S/O- LT. IDRIS ALI
VILL- GASPARA
P.O.- DHARMASHALA
DIST.- DHUBRI
ASSAM
PIN- 783324
------------
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
For the petitioner : Mr. P.K. Deka, Advocate
For respondent nos.1 to 3 and 5 : Mr. Mr. P.K. Borah, Standing Counsel
For respondent no.4 : Mr. S. Borah, Standing Counsel
Date of hearing : 09.12.2021
Date of judgment : 27.01.2022
JUDGMENT AND ORDER
(CAV)
Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr.
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P.K. Borah, learned standing counsel for the Elementary Education Department,
appearing for respondent nos. 1 to 3 and 5, Mr. S. Borah, learned standing
counsel for respondent no. 4, Mr. P. Saikia, learned Government Advocate,
representing respondent no. 6, as well as Mr. M.H. Ahmed, learned counsel for
the private respondent nos. 7 and 8.
2) The case of the petitioner is that as per resolution no. 2
adopted in the meeting no. 38 dated 21.03.2008 by the Managing Committee,
vide letter dated 21.03.2008 issued by the Headmaster & Secretary of the said
school had appointed the petitioner as an H.S. Science Teacher of the West
Gaspara Girls' M.E. Madrassa. It is projected that as the petitioner was mainly
teaching Social Studies. Despite recommendation made by the District Scrutiny
Committee for provincialisation of his service against Social Studies subject, the
Director of Elementary Education, Assam, (respondent no. 2) had issued the
impugned order, thereby provincialising the service of 3 (three) Assistant
Teachers, including the respondent nos. 7 and 8. Hence, by filing this writ
petition under Article 226 of the Constitution of India, the petitioner has assailed
the impugned order dated 04.02.2021 (Annexure-7), issued by the respondent
no.2, thereby provincialising the service of the respondent nos. 7 and 8 as an
Assistant Teacher of the West Gaspara Girls' M.E. Madrassa, for a direction to
provincialise the service of the petitioner as Social Science Teacher on the basis
of recommendation made by the District Scrutiny Committee (Annexure-5).
3) The learned counsel for the petitioner has submitted that as per
the provisions of Section 3(1) of the Assam Education (Provincialisation of
Services of Teachers and Re-organisation of the Educational Institutions) Act,
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2017 read with Sections 19 and 25 of the Right of Children to Free and
Compulsory Education Act, 2009 the respondent authorities ought to have
provincialised the service of one full-time Headmaster as well as 4 (four)
Assistant Teachers as the school has enrollment of more than 105 students.
Therefore, it has been submitted that while issuing a direction upon the
respondent authorities for appointing the petitioner, a suitable direction may
also be made to the respondent authorities to provincialise the services of one
full-time Headmaster as well as 4 (four) Assistant Teachers.
4) Per contra, the learned counsel for the respondent nos. 7 and 8
has made his submission in support of the interlocutory application and it is
submitted that the petitioner has not come with clean hands and has mislead
this Court to project as if he was appointed as a Social Studies teacher, which
was not correct and therefore, it is submitted that the petitioner was not
entitled to any relief in this writ petition. However, the learned standing counsel
for the Elementary Education Department has submitted that owing to
discrepancy in DISE data for academic year 2009-10 and 2020-21, the matter
may be remanded to the Director of Elementary Education, Assam (respondent
no.2) for a fresh decision.
5) While issuing a notice of motion by order dated 01.03.2021, as
an interim measure, the Court had provided that the provincialisation of
respondent nos. 7 and 8 be not given effect until further orders. Aggrieved by
the said ad interim order, the respondent nos. 7 and 8 have filed an
interlocutory application under Article 226(3) of the Constitution of India for
vacating the said interim order. The said application was registered as I.A.(C)
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1555/2021. The petitioner has contested the said interlocutory application by
filing affidavit-in-opposition as well as additional affidavit.
6) Having heard the learned counsel for all the appearing parties,
perused the following, viz., (i) writ petition, (ii) interlocutory application filed
jointly by the respondent nos. 7 and 8, (iii) affidavit-in-opposition by petitioner
in interlocutory application, (iv) additional affidavit filed by the petitioner in the
interlocutory application.
7) It would be relevant to quote the relevant extract of the
approval order dated 28.04.2008 (Annexure-3 of writ petition) issued by the
District Elementary Education Officer, Dhubri (DEEO for short) (respondent no.
5), by which approval was granted for appointment made by the Managing
Committee to 7 (seven) Teaching and non-Teaching staff, which is as under:-
Sl. Name of School & Designation Qualification MC Dt. of appoint- Dt. of joining
name of Teaching resolution
and non-Teaching no. & date ment
staff
1 Abdul Rashid Sk. Head Master B.A. 2/ 26-11-97 27-11-97
(respondent no. 7) 25-11-97
2 Abual Hussain Sk. Asst. Teacher B.A. 2/ 23-12-98 26-12-98
(respondent no. 8) 21-12-98
3 Sahidur Islam Asst. Teacher HSSLC (Sci) 1/ 21-03-08 24-03-08
(petitioner) 21-03-08
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... ... ... ... ... ... ...
8) Thus, from the above, it is seen that the petitioner was
appointed in service by the Managing Committee as Science Teacher [HSSLC
(Science) passed] and accordingly, approval was granted by the DEEO to the
appointment of the petitioner made as Science Teacher. Notwithstanding that in
the writ petition, the petitioner had asserted that he was teaching Social
Studies, but in paragraph-7 of his affidavit-in-opposition filed in the interlocutory
application, the petitioner has candidly admitted that he was appointed as
Assistant Teacher (Science), and approved as such. Thus, on the date the
petitioner had joined his service as Asst. Teacher (Science), the respondent no.
7 was the Headmaster of the School.
9) For reasons not disclosed by the State respondent nos. 1 to 5,
the District Scrutiny Committee (DSC for short) had recommended the names of
the respondent nos. 7 and 8 for provincialisation as "Language Teacher", and
that the name of the petitioner was recommended for provincialisation as
"Social Studies Teacher". As per Annexure-9 to the interlocutory application, it is
seen that the DSC had recommended the name of one Abdul Hoque, Assistant
Teacher for provincialisation as "Maths & Science Teacher". The service of the
respondent nos. 7 and 8 was provincialised vide notification dated 04.02.2021.
By the same notification, the service of the said Abdul Hoque was also
provincialised as Asst. Teacher, which is not under challenge.
10) It is also seen that as per District Information System for
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Education (DISE for short) data for the year 2009-10, the name of petitioner is
shown as "Mathematics Teacher" and that the names of the respondent nos. 7
and 8 are shown as "Language Teachers". However, in DISE data for academic
year 2020-21, the name of petitioner is shown as "appointed for subject- Social
Studies" and main subject taught is "Language"; whereas the name of
respondent no. 7 is shown as Head Master, "appointed for subject- Social
Studies" and main subject taught is "English"; and that the name of the
respondent no. 8 is shown as "appointed for Subject- All subjects" and main
subject taught is "Social Studies".
11) Therefore, in view of the herein before referred (i) appointment
orders of the petitioner and that of the respondent nos. 7 and 8; (ii) order of
approval dated 28.04.2008 issued by the DEEO, Dhubri; (iii) DISE data for
academic year 2009-10; DISE data for academic year 2020-21, the Court is of
the considered opinion that the issue relating to the claim of provincialisation of
the service of (a) Sahidur Islam (petitioner), (ii) Abdur Rashid Sk (respondent
no. 7), and (iii) Abual Hussain Sk (respondent no.8) be remanded to the
Director of Elementary Education, Assam (respondent no.2) for a fresh
examination and determination by considering all the relevant materials
including the documents herein before mentioned. It is also desirable that while
deciding the matter, the respondent no. 2 would also examine the qualification
of the petitioner and the respondent nos. 7 and 8 as well as the records of the
District Scrutiny Committee, Dhubri (DSC) to find out on what basis their
recommendation had been made. Subject to Covid-19 protocol in force from
time to time, an endeavour shall be made by the respondent no.2 to examine,
determine and dispose of the claim of the petitioner for provincialisation of his
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service in vis-à-vis the respondent nos. 7 and 8 within a period of 2 (two)
months from the date of service with a certified copy of this order before the
office of the respondent no.2.
12) The Director of Elementary Education, Assam (respondent no.2)
shall also be at liberty to consider the enrollment of students in West Gaspara
Girls' M.E. Madrassa, Dist. Dhubri and to take a call if services of more number
of Teaching staff can be provincialised in accordance with the provisions of
Section 3(1)(xi) of the Assam Education (Provincialisation of Services of
Teachers and Re-organisation of the Educational Institutions) Act, 2017 read
with Sections 19 and 25 of the Right of Children to Free and Compulsory
Education Act, 2009.
13) Liberty is granted to the petitioner and the respondent nos. 7
and 8 to forward to the respondent no.2 any document(s) they intend to rely
upon. The same shall be done within a period of 10 (ten) days. The petitioner
and the respondent nos. 7 and 8 are not granted liberty to submit any write-up,
summary or any argumentative petitions, which if still filed, may be discarded.
As the matter would be decided on the basis of documents, no opportunity of
personal hearing is required. If any of the parties are still aggrieved, the
aggrieved party shall be at liberty to file statutory appeal as provided for.
14) Considering the factual matrix that although the petitioner was
appointed as HSSLC (Science) passed Assistant Teacher, but the DSC found the
petitioner to be teaching "Social Studies" subject and that the respondent nos. 7
and 8 were both found by the DSC to be teaching 'Language" subject.
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Therefore, the interim order dated 01.03.2021 passed in this writ petition would
stand extended till the fresh determination is made by the respondent no.2.
However, it is clarified that while determining the matter, the respondent no.2
shall not be influenced by this order, thereby extending the interim order as
aforesaid.
15) The writ petition stands allowed to the extent as indicated
above. The parties are left to bear their own cost.
JUDGE
Comparing Assistant
