Jahirul Islam vs The State Of Assam And 5 Ors
2023 Latest Caselaw 1846 Gua

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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
          783384
         5:SOIFUL ISLAM
          SON OF AYNAL HOQUE
         VILLAGE BADAIPARA
          LENGTISINGA
         ABHAYAPURI
          DIST BONGAIGAON
         ASSAM
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             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 MANASH RANJAN PATHAK

                                               ORDER

09.05.2023 Heard Mr. H.R.A.Choudhury, learned Senior counsel assisted by Mr. A.M.Ahmed, learned counsel for the petitioner and Mr. K. Gogoi, learned Standing counsel, Higher Education Department, Assam for the respondent Nos. 1 & 2.

2. Pursuant to the order dated 19.02.2015 passed earlier in WP(C) No. 1463/2014 & WP(C) No.4086/2014, the Director of Higher Education, Assam by order No. PC/HE/CC-10/2014/151 dated 05.08.2021 provincialised the service of the petitioner as a Grade-IV employee at Rajiv Gandhi Memorial College, Lengtisinga, Bongaigaon under the provisions of the Assam Education (Provincialisation of Services of Non-teaching staff of Venture Educational Institutions) Act, 2018 in a fixed salary of Rs. 8,700/- per month w.e.f. 01.01.2021 clarifying that the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 amended in 2012, in the meanwhile, has been declared as ultra-vires and un-constitutional by the judgment and order dated 23.09.2016 passed in WP(C) No. 3190/2012 (Chandan Kumar Neog Vs. State of Assam and others).

3. The claim of the petitioner is that since during the force of the said 2011 Act, the Court passed the said order dated 19.02.2015 disposing of WP(C) No. 1463/2014, therefore, the benefit of such provincialisation of service of the petitioner should be given from the date when the services of the respondent Nos. 5 & 6 were provincialised i.e., w.e.f. 01.01.2013 instead of 01.01.2021.

4. A three judges Bench of the Hon'ble Apex Court in the case of the State of Manipur and others Vs. Surajkumar Okram and others decided on 01.02.2022 reported in (2022) SCC online SC 130 have held that -

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"where a statue is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts with depend upon it for their consideration are void ; it constitutes a protection to no one who has acted under it and no one can be punished for having refused obedience to it before the decision was made."

5. In the said case of the State of Manipur and others Vs. Surajkumar Okram and others (supra), the Hon'ble Apex Court further observed that -

"There is a distinction between declaration of a statute as unconstitutional by a Court of law and the repeal of a statute by the Legislature. On declaration of a statute as unconstitutional, it becomes void ab initio."

6. At this stage, Mr. Choudhury, learned Senior counsel for the petitioner, prays for some time to go through the judgment of the Hon'ble Apex Court passed in the case of the State of Manipur and others Vs. Surajkumar Okram and others (supra).

7. Prayer is allowed.

8. On the next date fixed, Mr. Choudhury, learned Senior counsel for the petitioner shall apprise the Court as to whether the said decision of the Hon'ble Apex Court passed in the case of the State of Manipur and others Vs. Surajkumar Okram (supra) will be applicable in the case of the petitioner or not.

9. Registry shall list this matter on 22.05.2023 for admission releasing the same from part- heard.

JUDGE

Comparing Assistant