Gauhati High Court
Page No.# 1/6 vs Jahirul Islam And 4 Ors on 6 August, 2025
Page No.# 1/6
GAHC010003962024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/8/2024
THE STATE OF ASSAM AND ANR.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
EDUCATION (HIGHER), GUWAHATI- 781006.
2: THE DIRECTOR OF HIGHER EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019
VERSUS
JAHIRUL ISLAM AND 4 ORS.
S/O LATE MOTIUR RAHMAN,
VILL.- JHARPARA PART- I, P.O.- LENTISINGA, P.S.- ABHAYAPURI, DIST.-
BONGAIGAON, ASSAM- 783384.
2:THE GOVERNING BODY OF RAJIV GANDHI MEMORIAL COLLEGE
REPRESENTED BY ITS PRESIDENT
LENGTISINGA
ABHAYAPURI
DIST.- BONGAIGAON
ASSAM- 783384.
3:THE PRINCIPAL
RAJIV GANDHI MEMORIAL COLLEGE
LENGTISINGA
ABHAYAPURI
DIST.- BONGAIGAON
ASSAM- 783384.
4:SOIFUL ISLAM
SON OF AYNAL HOQUE
VILLAGE- BADAIPARA
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P.O.- LENGTISINGA
P.S.- ABHAYAPURI
DIST.- BONGAIGAON
ASSAM- 783384.
5:SHAHIL RANA
S/O AMZAD HUSSAIN
VILLAGE- BADAPARA
P.O.- LENGTISINGA
P.S.- ABHAYAPURI
DIST.- BONGAIGAON
ASSAM- 783384
For the appellants : Mr. K. Gogoi,
Mr. S. Das,
S.C., Higher Education
For the respondents : Mr. J. Abedin, Advocate
For respondent No.1
Mr. S.U. Ahmed, Advocate
For respondent No.3
Mr. M.K. Choudhury, Advocate
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
06-08-2025
(Ashutosh Kumar, C.J.)
We have heard Mr. K. Gogoi, learned counsel for the appellant State and
Mr. J. Abedin, learned counsel for the respondent No.1.
2. The State of Assam is in appeal against the impugned judgment & order
dated 07.12.2023 passed by a learned Single Judge of this Court in WP(C)
6144/2021.
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3. The respondent No.1, who had been appointed as a Grade-IV employee in
Rajiv Gandhi Memorial College, was not given the benefit of provincialisation
under the Assam Venture Educational Institution (Provincialisation of Services)
Act, 2011 (for short 'the Act of 2011') for clerical reasons/mistakes despite other
persons of the same field having been granted that benefit. The respondent
No.1 thereafter chose to challenge the provincialisation of the other employees,
similarly situated, by WP(C) 1463/2014.
The learned Single Judge in that instance, finding the exercise to have
been completed, did not disturb the same but directed that the provincialisation
of the respondent No.1 shall be effected from the date when the services of the
other two employees were provincialised.
4. It appears from the records that this mandamus was not followed.
Later, the Act of 2011 referred to above was struck down as invalid and
Assam Education (Provincialisation of Services of Non-teaching Staff of Venture
Educational Institutions) Act, 2018 (for short 'the Act of 2018') came to be
promulgated providing provincialisation to the non-teaching staff on fixed salary.
The service of the respondent No.1 thereafter was provincialised under
the Act of 2018 on a fixed salary of Rs.8700/- per month w.e.f. 01.01.2021.
The respondent No.1 chose to challenge the afore-noted decision on the
ground that his provincialisation should have been effected under the Act of
2011 and not under the Act of 2018, especially when a mandamus had been
issued by this Court which was never assailed by the State of Assam in any
proceeding whatsoever.
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5. After provincialisation of the services of respondent No.1 under the 2018
Act, on a fixed salary, he challenged that decision before the High Court again
by WP(C) 6144/2021.
6. The learned Single Judge, while dealing with the matter, took note of the
argument on behalf of the State that in State of Manipur and others vs.
Surajkumar Okram and others, reported in (2022) SCC Online SC 130, it
has been held that where a statute is adjudged to be unconstitutional, it is as if
it had never been in existence. Rights cannot be built up under such statute and
contracts which depended upon it for their consideration are also 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.
7. Repelling such an argument on behalf of the State, the learned Single
Judge found that in the review of the judgment, by which the Act of 2011 had
been struck down as invalid, it was clearly observed in Review Petition
No.167/2016 that rights of the employees, who had benefitted under the struck
down statute, can be taken care of by giving retrospective effect to the
proposed legislation, if the legislature so decides. It was further clarified that till
it was done, the services of the provincialised category and the status of the
government employee ought not to be disturbed, who would continue to receive
all the benefits which they would have been getting under the Provincialisation
Act of 2011, since struck down by the judgment under review.
8. Even the Act of 2018 has a savings clause which provides that
notwithstanding the repeal of the Act of 2011, all the non-teaching staff of the
venture educational institutions, whose services were provincialised prior to
23.09.2016, would continue and their cases shall be reviewed as per the
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eligibility norms set forth for provincialisation under the Act of 2018.
9. On this ground alone, the writ petition preferred by the respondent No.1
was allowed and the Director of Higher Education, Assam was directed to do the
needful for provincialisation of the services of the respondent No.1 under the
Act of 2011 in compliance of the order dated 19.02.2015 passed in WP(C)
1463/2014 referred to above.
The necessary follow up action had to be taken within a period of three
months from the date of the judgment.
10. While assailing the judgment, the learned counsel for the State submitted
that notwithstanding the judgment of the learned Single Judge in WP(C)
1463/2014, no order had been passed for provincialising the services of the
respondent No.1. In that case, the savings clause would not get attracted to the
case of the respondent No.1.
The second limb of his argument is that the respondent No.1 never
questioned the inaction of the State in not provincialising his services
notwithstanding the specific mandamus issued by the Writ Court. He has further
submitted that since the respondent No.1 had not been proactive, rather had
slept over his rights, he ought not to be deemed to have been benefitted under
the Act of 2011, since struck down.
Lastly, it was submitted by the learned counsel for the State that while
according the benefit to the respondent No.1, the learned Single Judge erred in
law by failing to appreciate the settled proposition of law that the doctrine of
prospective overruling can be applied by the Hon'ble Supreme Court only to
save past transactions under earlier decisions which stand superseded by the
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statutes which have been held to be unconstitutional.
11. None of these grounds appeal to us for the reason that the rights of the
respondent No.1 has already been crystallised, but for formal issuance of an
order by the government.
12. True it is that the respondent No.1 was not cognizant of his rights and
never approached the Court for wilful contempt of the order passed by the
Court by the respondents but that would not take away the right crystallised in
favour of the respondent No.1.
13. We, therefore, are in agreement with the reasoning given by the learned
Single Judge in allowing the writ petition of the respondent No.1 and directing
for provincialisation of his services under the Act of 2011 in view of the saving
clause in the 2018 Act as also the judgment of this Court in WP(C) 1463/2014,
which was never assailed by the State.
14. For the afore-noted reason, we dismiss this appeal but make it cost easy.
JUDGE CHIEF JUSTICE
Comparing Assistant
