Gauhati High Court
WP(C)/310/2024 on 22 January, 2024
GAHC010010522024
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) No.310 of 2024
1. Smti. Indira Thakuria,
Daughter of Late Ishan Thakuria,
Wife of Shri Lohit Chandra Das,
Resident of Village: Chaygaon Bihdia,
PO: Chaygaon, PS: Chaygaon, District:
Kamrup, Assam, PIN - 781124.
2. Shri Abdus Salam,
Son of Late Jaynal Abdin,
Resident of Village & PO: Bhauria
Bhitha, District: Kamrup, Assam, PIN -
781136.
3. Smti. Dipti Thakuria,
Wife of Shri Dip Kumar Das,
Resident of House No.29, Mahanagar
Path, Narbam, Barsojai Lalmati,
Basistha, Kamrup (Metro), Guwahati -
781029.
........Petitioners
-Versus-
1. The State of Assam represented by
the Commissioner & Secretary to the
Government of Assam, Secondary
Education Department, Dispur,
Guwahati - 781006.
2. The Director to the Government of
Assam, Secondary Education
Department, Kahilipara, Guwahati -
781019.
WP(C) No.310/2024 Page 1 of 11
3. The State Level Scrutiny Committee
represented by its Chairman, Office of
the Director to the Government of
Assam, Secondary Education
Department, Kahilipara, Guwahati -
781019.
4. The Head Master, Uparhali Higher
Secondary School, PO: Uparhali,
Kamrup, Assam.
........Respondents
-BEFORE-
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
For the Petitioners : Mr. R.M. Deka, Advocate.
For the Respondents : Mr. B. Kaushik, Standing Counsel,
Education (Secondary) Department,
for respondent Nos.1, 2 & 3.
Date of Hearing : 22.01.2024.
Date of Judgment : 22.01.2024.
JUDGMENT & ORDER (ORAL)
Heard Mr. R.M. Deka, learned counsel for the
petitioners. Also heard Mr. B. Kaushik, learned standing
counsel, Education (Secondary) Department, representing
the respondent Nos.1, 2 & 3.
2. In view of the nature of order to be passed in the
present proceeding, notice upon the respondent No.4 is
not deemed necessary.
3. The petitioners, by way of the present writ
proceeding, have assailed the speaking order dated
09.05.2023 passed by the Director of Secondary Education,
Assam, by which the case of the petitioners for
provincialisation of their services was rejected on the
ground that the names of the petitioners did not figure in
the UDISE.
4. The petitioners are all Subject Teachers in
Uparhali Higher Secondary School and were appointed in
the said School when the School was in its venture stage.
Thereafter, in terms of the provisions of the Assam
Education (Provincialisation of Services of Teachers and
Re-organisation of Educational Institutions) Act, 2017 (for
short, "2017 Act"), cases of the petitioners and other
teachers of the said School were taken up for consideration
for provincialisation of their services. Accordingly, the case
of the petitioners and other eligible teachers of the said
School came to be placed before the jurisdictional District
Scrutiny Committee. The District Scrutiny Committee, on
consideration of the cases of the petitioners and others,
recommended the names of the petitioners along with that
of other eligible teachers of the said School for
provincialisation of their services.
5. The said process was taken up further and on the
said recommendation being considered by the State Level
Scrutiny Committee, the services of one Smti. Minu Das
Talukdar, PGT (Assamese) of the said School, came to be
provincialised vide an order dated 30.11.2021. The cases of
the petitioners not being considered for provincialisation of
their services, they had approached this Court by way of
instituting WP(C) No.1275/2022.
6. This Court, on consideration of the matter, vide
order dated 25.02.2022, directed the Director of Secondary
Education, Assam to consider the recommendation of the
District Scrutiny Committee made in favour of the
petitioners and to pass appropriate orders with regard to
provincialisation of their services if there is no legal
impediment in the matter. It was also provided in the said
order that if there is any legal impediment with regard to
provincialisation of the services of the petitioners, a
reasoned order be passed and the same be communicated
to the petitioners. Accordingly, vide a speaking order dated
05.05.2022, the Director of Secondary Education, Assam,
on consideration of the matter, rejected the claim of the
petitioners by holding that the names of the petitioners did
not figure in the UDISE Data and accordingly, the State
Level Scrutiny Committee could not consider the case of
the petitioners for provincialisation of their services.
7. The petitioners thereafter assailed the said
speaking order dated 05.05.2022 before this Court by way
of instituting WP(C) No.4594/2022. This Court, vide order
dated 18.07.2022, on considering the matter and drawing a
conclusion that the petitioners, who were so serving in
Senior Secondary School, are not required to be included in
the UDISE Data, disposed of the said writ petition
remanding back the matter to the Director of Secondary
Education, Assam to reconsider the claim of the petitioners
for provincialisation of their services in terms of the
provisions of 2017 Act. The speaking order dated
05.05.2022 was came to be interfered with by this Court.
8. The said order dated 18.07.2022 passed by this
Court in WP(C) No.4594/2022 came to be placed before
the Director of Secondary Education, Assam and thereafter
the said authority, vide speaking order dated 09.05.2023,
reconsidered the case of the petitioners and again rejected
their case on the ground that since the names of the
petitioners not figured in the UDISE Data, the State Level
Scrutiny Committee could not consider their cases. The
ground as taken in the speaking order dated 09.05.2023
being the same as was taken by the said authority in the
speaking order dated 05.05.2022, which was interfered
with by this Court, the petitioners being aggrieved had
again instituted the present proceeding before this Court.
9. The petitioners, admittedly, are working in a
Higher Secondary School and in terms of the provisions of
the 2017 Act, the names of the teachers working in the
Venture High School or Venture Higher Secondary School
are not required to be captured in the DISE Code or UDISE
Code. The definition of "Venture High School" and "Venture
Higher Secondary School" can be seen in Section 2(x) and
2(y) of the 2017 Act, which are reproduced herein below:-
"2.(x) 'Venture High School' means High School
imparting education up to class X and established by
the people of the locality prior to 1.1.2006 which has
received permission from the State Government and
recognition from the Board of Secondary Education,
Assam on or before 1.1.2006 and whereof the services
of the teachers have not been provincialised under any
Act enacted by the State legislature so far;
(y) 'Venture Higher Secondary School' means a Higher
Secondary School imparting education up to Class XII
and established by the people of the locality prior to
1.1.2006 which has received permission from the State
Government on or before 01.01.2006 and whereof the
services of teachers have not been provincialised under
any Act earlier enacted by the State legislature so far."
10. This Court further at this stage finds it relevant to
take note of two other definitions, i.e. definition of
"Venture M.E. School" including "Venture M.E. Madrassa
and "Venture Lower Primary School" or "Venture L.P.
School", which have been defined in Section 2(za) and
2(zb) of the 2017 Act. The said definitions, being relevant,
are also quoted herein below:-
"2(za) 'Venture ME School' including 'Venture ME
Madrassa' means an Upper Primary School imparting
education from class VI up to class VII and established
by the people of the locality prior to 1.1.2006 which has
received recognition from the competent authority on or
before 01.01.2006 and captured in the DISE Code up to
2009-10 and whereof the services of the teachers have
not been provincialised under any Act enacted by the
State legislature so far: Provided that the DISE Code
shall have to be issued on or before 2009-10 and DISE
Code issued thereafter shall not be considered for the
purpose of provincialisation of services of any employee
of the institution;
2(zb) 'Venture Lower Primary School' or 'Venture LP
School' means a School imparting education up to Class
V and established by the people of the locality prior to
1.1.2006 whose name figure in the DISE Code up to
2009-10 and prior to that and whereof the services of
the teachers have not been provincialised under any Act
enacted by the State legislature so far: Provided that the
DISE Code shall have to be issued on or before 2009-10
and DISE Code issued thereafter shall not be considered
for the purpose of provincialisation of services of any
employee of the institution."
11. From the above extracted definitions, it transpire
that Section 2(x) defines "Venture High School" to mean
such School imparting education up to Class-X and
established by the people of the locality prior to
01.01.2006, which has received permission from the State
Government and recognition from the Board of Secondary
Education, Assam on or before 01.01.2006 and whereof
the services of the teachers have not been provincialised
under any Act enacted by the State Legislature so far. The
definition of "Venture Higher Secondary School" as would
be seen from Section 2(y) of the Act of 2017 is similar to
"Venture High School". However, the difference in the
definitions between Venture High School and the Venture
Higher Secondary School is that in Venture High School,
the School imparts education up to Class-X whereas in
Venture Higher Secondary School, the School imparts
education up to Class-XII. Further, in "Venture Higher
Secondary School" only the permission from the State
Government on or before 01.01.2006 is required.
12. From the definitions of "Venture High School",
"Venture Higher Secondary School", "Venture M.E. School"
and a "Venture Lower Primary School", as quoted
hereinabove, it is evident that it is only in respect of the
Venture M.E. School and a Venture Lower Primary School
that the requirement of the names of the teachers being
captured in the DISE Code upto 2009-10 has been provided
for. In respect of a Venture High School or a Venture
Higher Secondary School, as defined under Section 2(x)
and 2(y) of the 2017 Act, such prescription is admittedly
absent and accordingly, it can be construed that the
requirement of a DISE Code is only applicable in case of a
Venture Primary or a Upper Primary School.
13. This Court, while disposing of WP(C)
No.4594/2022 vide order dated 18.07.2022, had
categorically held that in respect of a Venture Higher
Secondary School, there can be no requirement of the
names of the teachers therein to be captured in the DISE
Code or the UDISE Code. The Director of Secondary
Education, Assam, inspite of such categorical findings of
this Court, as recorded in the said order dated 18.07.2022,
had ignored the same and reiterated vide the speaking
order dated 09.05.2023 that the case of the petitioners
could not be considered by the State Level Scrutiny
Committee on account of the fact that their names were
not found in the UDISE Data.
14. The said conclusion of the Director of Secondary
Education is contrary to the 2017 Act inasmuch as the said
2017 Act does not mandate any teacher working in a
Venture High School and/or a Venture Higher Secondary
School to have their names captured in the DISE Code upto
the year 2009-10. The Director of Secondary Education,
Assam, vide the speaking order dated 05.05.2022, rejected
the case of the petitioners for provincialisation of their
services only on the ground that their names were not
found in the UDISE Data and such findings having been
interfered with by this Court in the proceedings in WP(C)
No.4594/2022, it was not open for the Director of
Secondary Education, Assam to again, after interference
with such conclusions by this Court, to reiterate the same
vide the speaking order dated 09.05.2023.
15. In view of the position as existing in the matter,
the speaking order dated 09.05.2023 is held to be issued in
clear violation of the directions as passed by this Court vide
order dated 18.07.2022 in WP(C) No.4594/2022.
Accordingly, the said speaking order dated 09.05.2023 is
hereby set aside and quashed. The matter is now
remanded back to the Director of Secondary Education,
Assam, who is now required to place the recommendations
made in favour of the petitioners by the District Scrutiny
Committee before the State Level Scrutiny Committee.
While placing the recommendations of the District Scrutiny
Committee in favour of the petitioners before the State
Level Scrutiny Committee, the Director of Secondary
Education, Assam, shall specifically bring to the notice of
the said Committee that the rejection of their case by the
said Committee earlier on account of non-possession of
UDISE Data has been interfered with by this Court and also
bring to the notice of the said Committee the conclusions of
this Court that the teachers working in a High School
and/or a Higher Secondary School are not required to have
their names captured in the DISE Data and/or in the UDISE
Data. Upon having the case considered by the State Level
Scrutiny Committee, necessary orders as may be required
with regard to provincialisation of the services of the
petitioners be issued.
16. It is provided that in the event the State Level
Scrutiny Committee has any apprehension with regard to
the continuous nature of service of the petitioners, the said
Committee is required to invoke the powers as conferred
on it under the provisions of Section 13(11) of the 2017
Act. The said Committee, in terms of the provisions of
Section 13(11) of the 2017 Act, shall cause physical
verification of the Institution(s) of the petitioners and also
inspect all documents and records as may be required for
the purpose of consideration of the cases of the petitioners
for provincialisation of their services and thereafter, render
its recommendations in the matter. On receipt of the
recommendations from the State Level Scrutiny
Committee, the Director of Secondary Education, Assam
shall proceed with the matter and take such proposal to its
logical conclusion. The process, as required to be now
carried out by the Director of Secondary Education, Assam,
shall be so initiated and completed in terms of the
directions passed hereinabove within a period of 3(three)
months from the date of receipt of a certified copy of this
judgment & order. The petitioners, to facilitate the process,
shall furnish a certified copy of this judgment & order along
with a forwarding before the Director of Secondary
Education, Assam.
17. With the above observations and directions, the
writ petition stands disposed of.
J U D G E
Comparing Assistant
