Jahirul Islam vs The State Of Assam And 5 Ors
2023 Latest Caselaw 4862 Gua

Gauhati High Court

Jahirul Islam vs The State Of Assam And 5 Ors on 4 December, 2023

Author: Achintya Malla Bujor Barua

Bench: Achintya Malla Bujor Barua

                                                                Page No.# 1/3

GAHC010183432021




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

                            Case No. : WP(C)/6144/2021

         JAHIRUL ISLAM
         S/O LATE MOTIUR RAHMAN, VILLAGE JHARPARA PART I, PO
         LENGTISINPA, PS ABHAYAPURI, DIST BONGAIGAON, ASSAM, 783384



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REPRESENTED BY THE CHAIRMAN AND SECRETARY TO THE GOVT.OF
         ASSAM, EDUCATION (HIGHER) DEPARTMENT, DISPUR GUWAHATI 781006

         2:THE DIRECTOR OF HIGHER EDUCATION
         ASSAM

          KAHILIPARA
          GUWAHATI 781019

         3:THE GOVERNING BODY OF RAJIB GANDHI MEMORIAL COLLEGE

          REPRESENTED BY ITS PRESIDENT
          LENGTISINGA
          ABHAYAPURI
          DIST BONGAIGAON
          ASSAM
          783384

         4:THE PRINCIPAL

          RAJIV GANDHI MEMORIAL COLLEGE
          LENGTISINGA
          ABHAYAPURI
          DIST BONGAIGAON
          ASSAM
                                                                       Page No.# 2/3

             783384

            5:SOIFUL ISLAM
             SON OF AYNAL HOQUE

            VILLAGE BADAIPARA
            LENGTISINGA
            ABHAYAPURI
            DIST BONGAIGAON
            ASSAM
            783384

            6:SHAHIL RANA
             S/O AMZAD HUSSAIN

            VILLAGE BADAIPARA
            LENGTISINGA
            ABHAYAPURI
            DIST BONGAIGAON
            ASSAM
            78338

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : SC, HIGHER EDU




                                 BEFORE
            HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        ORDER

Date : 04.12.2023

It appears from the order dated 09.05.2023 that the respondents in the Higher Education Department relies upon a judgment of the Hon'ble Supreme Court rendered in State of Manipur and Ors. Vs. Surajkumar Okram and Ors. decided on 01.02.2022 reported in (2022) SCC Online SC 130, wherein it is provided that there is a distinction between declaration of a statute as unconstitutional by a Court of law and a repeal of the statute by the Legislature with a further provision that on declaration of a statute as unconstitutional, it Page No.# 3/3

becomes void ab initio, meaning thereby that all actions taken or pending under the statute declared to be unconstitutional are also void ab initio.

However, in the instant case, it is noticed that the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 had been declared as ultra-vires and unconstitutional by the judgment and order dated 23.09.2016 in WP(C) No. 3190/2012. But at the same time, subsequently by another order dated 02.01.2017 in Review.Pet. No. 167/2016, the same Court which had declared the statute to be unconstitutional had provided that all actions taken under act declared to be unconstitutional are sealed. The respondents in the Higher Education Department to respond on the said proposition.

List on 07.12.2023.

JUDGE

Comparing Assistant