Gauhati High Court
Amina Khatun vs The State Of Assam And 4 Ors on 16 October, 2023
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GAHC010225222023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6110/2023
AMINA KHATUN
DAUGHTER OF ISMAIL HUSSAIN,
RESIDENT OF VILL.- RANGALOOGAON,
P.S.- KAMPUR, P.O.- JUMURMUR,
DIST.- NAGAON, PIN- 782426, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
EDUCATION (ELEMENTARY) DEPARTMENT,
DISPUR, GUWAHATI-781006.
2:THE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GUWAHATI-19.
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO)
NAGAON DISTRICT- 782001.
4:THE BLOCK ELEMENTARY EDUCATION OFFICER
KATHIATOLI
NAGAON DISTRICT
PIN- 782427.
5:THE DEPUTY COMMISSIONER
NAGAON
ASSAM CUM CHAIRMAN OF DSC
PIN- 782001
Advocate for the Petitioner : MR. A DEKA
Advocate for the Respondent : SC, ELEM. EDU
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BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 16-10-2023
JUDGMENT & ORDER (ORAL)
Heard Mr. A Deka, learned counsel for the petitioner, Ms. N Phukan, learned
counsel for the respondents in the Elementary Education Department,
Government of Assam and Mr. P Saikia, learned Junior Government Advocate for
the Deputy Commissioner, Nagaon, Assam.
2. The petitioner Amina Khatun is a teacher in the Barpani ME School in the
Nagaon district having been appointed on 14.11.2004 when the school was in
its venture stage. When the teachers of the school were provincialised under the
Assam Education (Provincialisation of Services of Teachers and re-organization
of Educational Institutions) Act, 2017 (in short Act of 2017), the claim of the
petitioner for provincialisation was left out and in the circumstance, the
petitioner instituted WP(C) No. 5504/2022, wherein an order dated 03.08.2022
was passed requiring the respondent No. 2 being the Director of Elementary
Education, Assam to consider the representation dated 08.02.2021 claiming for
provincialisation. Consequent thereof, the impugned order dated 31.05.2023
had been passed by the Director and the conclusion thereof is extracted below:-
"In view of the above and as per minutes of the SLC dated 02/04/2005 as
well as enquiry report submitted by the enquiry officer it reveals that the
maximum limitation of staff in ME School is 5 No.s of teachers. Accordingly the
SLSC as well as Joint Committee recommended 4 No.s of teachers against
Barpani ME School for provincialisation of services as tutor as per Act of 2017
wherein Science Tutor post could not be recommended as the name of Science
Teacher does not appear in DISE data up to the year 2011-12. Hence the claim
of petitioner Amina Khatun for provincialisation of service is as additional to the
5 tutors in Barapani ME School so cannot be considered as per Act of 2017 and
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the petition dated 08/02/20212 is hereby is rejected."
3. The Director was of the view that as the Science Teacher of the school
could not be provincialised because the name did not appear in the DISE Code,
therefore, four other teachers having been appointed, it has to be construed
that under the law five teachers have already been appointed in respect of
Barpani ME School. Accordingly, the Director was of the view that the claim of
the petitioner would be against the 6 th post which under the Act of 2017 the
school would not be entitled to a 6th post.
4. Provincialisation of teachers in respect of ME Schools is provided under
section 3(1)(xi) of the Act of 2017, which is extracted below:-
"(xi) In case of Venture Upper Primary School there shall be minimum three
teachers or tutors at least one teacher each for (a) Science and Mathematics
(b) Social Studies and (c) Languages:
Provided that for additional posts it shall be considered in accordance with the
norms and standards stipulated in the Schedule under Sections 19 and 25 of
the Right of Children to Free and Compulsory Education Act, 2009 (Central Act
No. 35 of 2009)."
5. A plain reading of Section 3(1)(xi) shows that three teachers or tutors of
whom at least one teacher for Science and Mathematics, Social Studies and
Language would mandatorily have to be appointed. For additional post, the
norms and standards provided in the schedule under sections 19 and 25 of the
Right of Children to Free and Compulsory Education Act, 2009 (in short Act of
2009) would be applicable. The schedule under sections 19 and 25 under the
Act of 2009 in respect of a ME School is extracted as below:-
"(b) For sixth class to eighth (1) At least one teacher per class so that
class there shall be at least one teacher each for-
(i) Science and Mathematics;
(ii) Social Studies;
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(iii) Languages
(2) At least one teacher for every thirty-five children
(3) where the admission of children is
above one hundred-
(i) a full time head- teacher;
(ii) part time instructors for-
(A) Art Education;
(B) Health and Physical Education;
(C) Work Education."
6. A reading of the afore-extracted provision of the schedule of the Act of
2009 makes it discernible that the schedule also provides for one teacher each
for Science and Mathematics, Social Studies and Language. Sub clause 2 of
Serial No. 1(b) of the schedule provides for at least one teacher for every 35
children. If under the proviso to section 3(1)(xi) of the Act of 2017, the schedule
would govern as regards provincialisation of additional teachers, serial 1(b) (2)
of the schedule of the Act of 2009 would also be a relevant provision which
provides for one teacher for every 35 students.
7. Mr. A Deka, learned counsel for the petitioner states that in the Barpani ME
School, the total number of students are 270, which means that up to 175
students as per serial 1(b) of the schedule, the requirement would be five
teachers and up to 210 students, it would be six teachers and thereafter up to
245 students, it will be seven teachers.
8. If the information provided that the school has 270 students is correct, a
plain reading of the provision of serial 1(b) of the schedule to the Act of 2009
reading with the proviso of Section 3(1)(xi) of the Act of 2017 makes it
discernible that the school in question would be entitled to a 7 th teacher.
9. In view of the above, the rejection of the claim of the petitioner for
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provincialisation by the order dated 31.05.2023 of the Director appears to be a
rejection without taking note of the relevant provision of the proviso to Section
3(1)(xi) of the Act of 2017 read with Serial 1(b) (2) of the schedule to the Act of
2009.
10. Accordingly, the matter is remanded back to the Director for a fresh
consideration taking note of the aforesaid provisions and also to arrive at a
factual determination as to what would be the number of teachers for the
Barpani ME School. Upon doing the needful, a reasoned order on the claim of
provincialisation of the services of the petitioner be passed within a period of
two months from the date of receipt of a certified copy of this order.
The writ petition is disposed of as indicated above.
JUDGE
Comparing Assistant
