Rangauti Girls Higher Secondary ... vs The State Of Assam And 5 Ors
2023 Latest Caselaw 2198 Gua

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GAHC010223042021




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

                          Case No. : Review.Pet./10/2022
                                            in
                                      WP(C) 947/2015

         RANGAUTI GIRLS HIGHER SECONDARY SCHOOL AND 2 ORS.
         REP. BY THE PRINCIPAL, OF THE SAID SCHOOL, VILL.- RANGAUTI, DIST.-
         HAILAKANDI.

         2: SECRETARY
          RANGAUTI GIRLS HIGHER SECONDARY SCHOOL
          DIST.- HAILAKANDI.ASSAM

         3: ANWAR HUSSAIN MAZARBHUIYAN
          S/O LATE ISKANDAR ALI MAZARBHUIYA
          RESIDENT OF HAILAKANDI TOWN
         WARD NO. 11 SUBJECT TEACHER
          RANGAUTI GIRLS HIGHER SECONDARY SCHOOL
          HAILAKANDI

         VERSUS

         THE STATE OF ASSAM AND 5 ORS.
         TO BE REP. BY COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
         EDUCATION SECONDARY DEPTT., DISPUR, GHY- 6.

         2:SERETARY FINANCE DEPTT.
          GOVT. OF ASSAM
          DISPUR GHY- 6.

         3:DIRECTOR OF SECONDARY EDUCATION
         ASSAM KAHILIPARA
          GUWAHATI

         4:SECRETARY
         ASSAM HIGHER SECONDARY EDUCATION COUNCIL
          GUWAHATI 21
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            5:CHAIRMAN
             DIST. SCRUTINY COMMITTEE FOR HIGHER EDUCATION HAILAKANDI
            DIST.
             HAILAKANDI. 788151

            6:INSPECTOR OF SCHOOLS
             HAILAKANDI ASSAM
             788151 ASSA

Advocate for the Petitioner : MR. J RAHMAN
Advocate for the Respondent : SC, SEC. EDU.


                                           BEFORE
           HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                           ORDER

26-05-2023

Heard Mr. M. Khan, learned counsel for the review petitioner; Ms. H. Terangpi, learned Standing Counsel, Department of School (Secondary) Education for the respondent Nos.1, 3 and 6 and Mr. A. Chaliha, learned Standing Counsel, Finance Department for the respondent No.2. Also heard Mr. D. K. Roy, learned Standing Counsel, Assam Higher Secondary Education Council for the respondent No.4 as well as Mr. G. Pegu, learned Government Advocate, Assam for the respondent No.5.

2. The petitioner No.1 is Rangauti Girls' Higher Secondary School, Rangauti, District- Hailakandi, a venture educational institution. It is represented by the Secretary of the Managing Committee of the said Girls HS School, respondent No.2 and a Subject Teacher of the Girls' HS School, respondent No.3.

3. The petitioners have filed this review petition to review and/or modify the order dated 27.02.2018 passed in WP(C) No. 947/2015 that was preferred by the present petitioners, which was dismissed on said 27.02.2018.

4. Brief facts of the case is that the State Government in the Secondary Education Department by letter No.ASE.282/2005/185 dated 20.01.2006 informed the Director of Secondary Education, Assam regarding the permission accorded to the petitioner No.1 School for its upgradation from Secondary to Higher Secondary School granting permission to open its first year Page No.# 3/6

Higher Secondary Class in Arts stream, on condition that the Government will be bear any financial liabilities in future for the permission accorded and that an undertaking to that effect should be obtained from the Managing Committee of the said School that it will not claim any financial benefit from the Government.

5. The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 came into force w.e.f., 05.09.2011. As per the provisions of the said 2011 Act during its force, a venture Higher Secondary School was considered for provincialisation which received permission from the State Government on or before 01.01.2006, as per the 2012 amendment of the said 2011 Act. Prior to said 2012 amendment of said 2011 Act, said "on or before" 01.01.2006 was "prior to" 01.01.2006.

6. After coming into the force of said 2011 Act as amended in 2012, the petitioner School for the first time on 09.04.2012 submitted a representation before the Commissioner & Secretary in the Secondary Education Department for relaxation of the requirement of the consideration of the case of the said School regarding the permission granted to it earlier on 20.01.2006 praying

before the said authority to consider such permission granted as prior to 1 st January, 2006, so that it can avail the benefit of provincialisation under the said 2011 Act, as amended in 2012 since the said School was established in the year 1996 and permission was sought for on 12.09.1996.

7. As the matter remained pending before the said authority, the present petitioner preferred a writ petition being WP(C) No. 2720/2012 and the Court by order dated 08.06.2012 disposed of said WP(C) No. 2720/2012 directing the Commissioner & Secretary in the Secondary Education Department of the State to dispose of the said representation of the petitioner dated 09.04.2012 within a period of 45 days from the date of receipt of certified copy of the said order, to be furnished by the petitioner.

8. Thereafter, the Commissioner & Secretary to the Government of Assam in the Secondary Education Department in pursuance of the said order dated 08.06.2012 passed in WP(C) No. 2720/2012 considered the said representation of the petitioner dated 09.04.2012 regarding its prayer for condonation of 19 days and after obtaining view and comments from the Judicial Department and finding that the Department has no power and jurisdiction to relax any provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 rejected the same. However, allowed the Inspector of School, Hailakandi to submit fresh report Page No.# 4/6

under the provisions of Section 11 (1) (i) (ii) (iii) and 11 (2) of the said 2011 Act.

9. Being aggrieved the petitioners filed the connected WP(C) No. 947/2015 on 06.02.2015 challenging the said order dated 04.04.2014, passed by the Commissioner & Secretary to the Government of Assam in the Secondary Education Department praying to set aside the same and also to direct the said authority to accord necessary permission to the petitioner School with retrospective effect before the 01.01.2006 for the purpose of provincialisation of the said School and further to direct the respondents to provincialise the said School w.e.f., the date of other similarly situated Schools in Assam.

10. During the continuance of the said WP(C) No. 947/2015, a Division Bench of this Court vide judgment dated 23.09.2016 in WP(C) No.3190/2012 (Chandan Kr. Neog Vs. State of Assam and others) and other connected cases set aside the said 2011 Act declaring it as ultra-vires and unconstitutional. Thereafter, the State Government in the Education Department w.e.f., 11.04.2017 brought into force the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017. Even in said 2017 Act to be eligible for provincialisation of a venture Higher Secondary School, it must receive permission from the State Government on or before 01.01.2006 which remained as same as that of said 2011 Act, noted above.

11. This Court after considering the entire aspect, by order dated 27.02.2018 dismissed the said WP(C) No. 947/2015 that was preferred by the petitioner as it was found that the petitioners failed to furnish any reason for their delay in approaching the authority concerned on 09.04.2012 for condoning the delay of 19 days as permission for upgradation to the said School was granted by the Government on 20.01.2006 and representation was filed for such condonation on 09.04.2012, which was after 6 years 4 months and that too, after coming into the force of 2011 Act so as to get the benefit of provincialisation of said 2011 Act which was no longer in force and thereby uphold the said order dated 04.04.2014 of the Commissioner & Secretary to the Government of Assam in the Secondary Education Department.

12. By filing the present review petition, the petitioner stated that they took steps for obtaining opening permission from the authorities concerned since 12.09.1996 and filed several writ petitions for a direction to accord permission/upgradation of the said School to a Higher Secondary School and the Departmental permission was granted to it only on 20.01.2006 after more than 9 years of struggle. Since there was no embargo as on 20.01.2006, till coming into the Page No.# 5/6

force of said 2011 Act that came into force on 05.09.2011, the School did not seek any condonation of such delay of 19 days. But, on coming of the said 2011 Act in force, since the petitioner School do not come under the purview for provincialisation as permission was granted on 20.01.2006 and therefore, the representation was filed on 09.04.2012 to condone the delay of 19 days so that the said School can under the zone of consideration for provincialisation under the said 2011 Act where such permission was required from Government on or before 01.01.2006.

13. The second contention urged on behalf of the petitioners School for review of the said order dated 27.02.2018 passed in connected WP(C) No. 947/2015was that similar provision containing bar/cut-off date of 01.01.2006 has also incorporated in the 2017 Act that has come into force w.e.f., 11.04.2017 and that the prayer of the petitioner in said WP(C) No. 947/2015 was to set aside and quash the impugned order dated 04.04.2014 passed by the Commissioner & Secretary to the Government of Assam in the Secondary Education Department and to direct the respondent authorities therein to give retrospective effect of permission of the petitioner's School on or before 01.01.2006 and the declaration of the said 2011 Act as ultra-vires does not have any bearing with the prayer made in the said WP(C) No. 947/2015.

14. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the CPC and review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground, where an error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of rejoining on points where there may conceivably be two opinions.

15. From the representation submitted by the petitioner School before the Commissioner & Secretary to the Government of Assam in the Secondary Education Department annexed in said WP(C) No. 947/2015 it can be seen that the representation dated 09.04.2012 was filed by the petitioner's School, which is a venture Higher Secondary School, stating that it fulfils all the requisite conditions for provincialisation of service of teaching and non-teaching staff of the said School as per the provisions of said 2011 Act except the permission that was accorded only on 20.01.2006 instead of on or before the cut-off/deadline dated 01.01.2006, for which the staff of the students of the said venture School as a whole should not thrown away from the purview of the provincialisation and therefore, urged to condone the delay of 19 days in granting/according Page No.# 6/6

permission to the said School, which is not on the fault of the management of the School. As such, it is clear only for the purpose to get the benefit of provincialisation the petitioner's School prayed for condonation of 19 days regarding the date of according approval to the said School as on or before 01.01.2006 instead of 20.04.2006.

16. As such, the Court found that the prayer of the petitioners for review of said order dated 27.02.2018 passed in the connected WP(C) No. 947/2015 is not on the ground of error apparent on the face of the record.

17. However, the Court noticed that while issuing the said order dated 27.02.2018, in said WP(C) No. 947/2015 the concerned counsel for the petitioner submitted before the Court that the petitioners took back the brief from the said counsel long back and that the Court by order dated 09.06.2016 passed earlier in the said writ petition directed to list the matter after two weeks. But it was listed on 27.02.2018 under admission column and that the petitioners remained unrepresented.

18. Since the said dismissal order dated 27.02.2018 passed in WP(C) No. 947/2015 was not for non-prosecution, but on merit, in absence of the petitioners and/or their counsel(s), this Court accordingly, recalls the said order dated 27.02.2018 passed in WP(C) No. 947/2015 and restores the said WP(C) No. 947/2015 to file.

19. Accordingly, this review petition stands allowed.

JUDGE

Comparing Assistant