Page No.# 1/8 vs The State Of Assam And 3 Ors
2025 Latest Caselaw 5473 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And 3 Ors on 18 June, 2025

                                                                         Page No.# 1/8

GAHC010009162025




                                                                  2025:GAU-AS:8183
                          THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/504/2025

           MD. SAFIUL HOQUE S/O LATE NUR HUSSAIN
           VILL- KESHARVITA,P.O. JHOWDANGA,DIST. SOUTH SALMARA
           MANKACHAR, ASSAM

           VERSUS

           THE STATE OF ASSAM AND 3 ORS
           REPRESENTED BY THE GOVERNMENT OF ASSAM, DEPARTMENT OF
           SCHOOL EDUCATION, DISPUR, GUWAHATI-781006.

           2:THE COMMISSIONER AND SECRTARY TO THE GOVT. OF ASSAM
           FINANCE (BUDGET) DEPARTMENT DISPUR GUWAHATI-06.

           3:THE DIRECTOR ELEMENTARY EDUCATION
           ASSAM KAHILIPARA GUWAHATI-19

           4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
            SOUTH SALMARA MANKACHAR AT HATSINGIMARI
           P.O. HATSINGIMARI DIST.SOUTH SALMARA MANKACHAR
           ASSAM PIN-78313

Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Advocate for the Respondent : SC, ELEM. EDU, MR. A. CHALIHA, SC, FINANCE AND

TAXATION

BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

Date of hearing : 18.06.2025 Date of Judgment: 18.06.2025 Page No.# 2/8

Judgment & order(Oral)

Heard Mr. M. Khan, learned counsel, appearing on behalf of the petitioner. Also heard Mr. Arunav Phukan, learned standing counsel, Elementary Education Department, appearing on behalf of all the respondents.

2. The grievance raised by the petitioner, herein, in the present proceeding, is the inaction on the part of the respondent authorities in refusing to release of his salaries in arrears w.e.f. 01.01.2021, to 28.02.2021, and w.e.f. November, 2021, to till date, along with his current salaries.

3. As projected in the writ petition, the petitioner, herein, was serving as an Assistant Teacher of Kesharvita M.E. Madrasa(a Venture Educational Institution). The case of the petitioner, herein, and other eligible teachers in the said school were taken-up for consideration for provincialisation of their services under the provisions of the Assam Education(Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017. On consideration of the case of the petitioner, herein; the Director, Elementary Education Department, Assam, vide order, dated 05-02-2021, proceeded to provincialize the services of the petitioner with effect from 01-01-2021, as a Tutor, in the said school.

4. Being aggrieved with the provincialisation of the services of the petitioner, herein, as well as of one Md. Abdul Akher Ali; one Md. Abul Hasen had approached this Court by way of instituting a writ petition being Page No.# 3/8

WP(c) No. 3650/2021. A co-ordinate Bench of this Court, vide order, dated 13-08-2021, while issuing notice, was pleased to direct that the benefits of provincialisation of the services of the petitioner, herein, shall not be given further effect. Thereafter, vide an order, dated 17-12-2021, this Court was pleased to dispose of the said writ petition, directing the petitioner, therein, to submit a representation before the Director, Elementary Education Department, Assam, and the Director, Elementary Education Department, Assam, was directed to dispose of the said representation.

5. In pursuance of the directions passed by the co-ordinate Bench of this Court, vide the said order, dated 17-12-2021, in WP(c) No. 3650/2021; the Director of Elementary Education, Assam, was pleased to dispose of the matter by upholding the provincialisation of the services in respect of the petitioner, herein, as well as holding that Md. Abul Hasen was entitled to have his services provincialized against the post of Social Science teacher. The provincialisation of said Md. Abdul Akher Ali was cancelled.

6. At the outset, it is to be noted that the petitioner, herein, and said Md. Abdul Akher Ali were held to be teaching the Language subject and the petitioner, herein, was held by the Director of Elementary Education Department, Assam, to be senior amongst the both.

7. The said Md. Abul Hasen had approached this Court by way of instituting a writ petition being WP(c) No. 4881/2023, raising a grievance of his services not being provincialized inspite of being held to be eligible for such provincialization by the Director, Secondary Education Department, Assam, vide the said order, dated 17.12.2021. The said Md. Abdul Akher Ali Page No.# 4/8

also moved before this Court by way of instituting a writ petition being WP(c) No. 4564/2023. The petitioner, herein, was arrayed as a Respondent No. 9 in the proceedings of WP(c) No. 4564/2023. This Court, vide order, dated 01-08-2024, on considering the materials brought on record and upon hearing the parties to the proceedings, was pleased to dispose of the said writ petition by upholding the provincialisation effected in the case of the petitioner herein, i.e., Respondent No. 9 in WP(c) No. 4564/2023. This Court had further granted liberty to the petitioner in WP(c) No. 4564/2023, to move before the jurisdictional Education Tribunal by invoking the provisions of Section 19(2) of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, for establishing his seniority for provincialisation of his services in the said school.

8. The operative portion of the said order, dated 01-08-2024, passed in WP(c) No. 4564/2023, being relevant, is extracted herein below:

"31. It is to be noted that the date of joining of the petitioner, as well as that of the respondent no. 9 is 16.03.1993 and 14.01.1993; respectively, which position is not disputed.

32. The petitioner, in the present proceeding while projecting that the petitioner as well as the respondent no. 9 were both Language Teachers has disputed the seniority assigned to the respondent no. 9, on the ground that he having resigned from the post of Headmaster, after being so appointed, on 08.10.1997 was thereafter, re-appointed afresh only on 11.03.2002 as a Language Teacher and accordingly, the seniority of the respondent no. 9 would be so reckonable only w.e.f., 11.03.2002.

33. The said position was categorically denied by the respondent no. 9 in the affidavit filed by him and also the submission made in the present proceeding by Mr. M. Khan, learned counsel appearing for the respondent no. 9.

34. It is to be noted that when the cases of the serving teachers of the said school were to be so considered for provincialisation under the provisions of Act of 2017, the petitioner in WP(C)/4564/2023 had submitted the particulars of the serving teachers of the said school in the prescribed format along with their educational as well as professional qualifications.

35. In the said statement of the service particulars of serving teachers, the petitioner had projected that he had joined the said school on 12.03.2002; while the respondent no. 9 had so joined on 14.01.1993 and both were denoted to be teaching the Language subject. The name of the respondent no. 10 was not included therein. The petitioner Page No.# 5/8

has contended that the respondent no. 10 was discharged from the said school on 02.09.2013 and accordingly, his name was not forwarded by the school authorities for consideration of his case for provincialisation of his services.

36. The order dated 26.06.2023, reveals that while the services of the respondent no. 10 was discharged, however, he had approached this Court by assailing the said process and in pursuance to directions passed by this Court, the Director of Elementary Education, Assam had issued an order dated 16.06.2017 that the said respondent no. 10 is liable to get all service benefits as Assistant Teacher of Kesharvita M.E. Madrassa and his case may be considered for provincialisation of his services under the provisions of the Act of 2017.

37. Section 3 (1) (xi) stipulates that in case of a Venture Upper Primary School, there shall be minimum 3(three) Teachers or Tutors and at least one Teacher each for a) Science and Mathematics; b) Social Studies and c) Language Teacher.

38. The proviso to Section 3 (1) (xi) of the said Act of 2017 stipulates that requirement of additional post, shall be considered in accordance with the norms and conditions stipulated in the Schedule under Section 19 and 25 of the Right to Education, Act 2009.

39. The RTE, Act 2009 more particularly, the Schedule thereto under Serial No. 1 (b), would reveal that when the number of children for admission in a particular school in more than 100, a full time Headmaster can be provided for.

40. In the present case on hand, the parties in WP(C)/4564/2023 are teaching the following subjects:- The petitioner and the respondent no. 9 teach the Language subject while the respondent no. 10 teaches the Social Studies subject.

41. The respondent no. 10, who was serving in the said school and teaching the subject of Social Studies, in terms of the conclusions reached by the Director of Elementary Education, Assam, vide the order dated 26.06.2023 is entitled to have his services provincialised in the said school.

42. At this stage, it would be relevant to refer to the provisions of Section 3(1) (xi) of the said Act of 2017, the same being relevant is extracted herein below: - "In case of a 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:"

43. Accordingly, applying the provisions of Section 3(1) (xi) of the said Act of 2017, it is seen that out of the petitioner and the respondent no. 9, only one can have their services provincialised while the respondent no. 10 being projected as the Social Studies Teacher, would be eligible to occupy the other post so available.

44. It is also to be noted that there is no dispute with regard to the incumbent so provincialised in the said school against the post of Science Teacher.

45. The above being the position, between the petitioner and the respondent no. 9 both denoted as Language Teacher, it is the senior amongst them who would be so required to be provincialised as Language Teacher.

46. The date of joining of the petitioner as well as the respondent no. 9 in WP(C)/4564/2023 in the school, as reckoned by the Director of Elementary Education, Assam, for determining their inter-se seniority in the order dated 26.06.2023 as well the dates so recorded in the statement of service particulars submitted by the petitioner, herein as the Headmaster of the school, is disputed by the petitioner to the extent that his date of joining has to be so reckoned on 16.03.1993 and that of the respondent no. 9, on 14.01.1993, respectively.

47. Ignoring the other contentions so raised, even reckoning the date of joining of the petitioner and the respondent no. 9, as contended by the petitioner i.e., 16.03.1993 Page No.# 6/8

and 14.01.1993 respectively, it has to so held that it is the respondent no. 9, who would be senior to the petitioner, herein; and accordingly, it is the respondent no. 9 who would be entitled to have his services provincialised in the said school against the post of Language Teacher.

48. As regards the respondent no. 10, it is already concluded herein above that he being the sole Social Studies Teacher in the school and there being no other claimant for the said post, he would be eligible for having his services provincialised against the existing post of Social Studies Teacher.

49. However, having reached the above conclusions, the further contention of Mr. M. Islam, learned counsel for the petitioner, in WP(C)/4564/2023, to the extent of the services rendered by both respondent no. 9 & 10 in the said school, is to be so considered.

50. It is the contention of the petitioner in WP(C)/4564/2023 that both the respondents no. 9 & 10 had a break in their services. While the respondent no. 9 had resigned in the year 1997 followed by his fresh appointment in the year 2002, the respondent no. 10 was contended to have been discharged from his services in the said school, by its Managing Committee, on 02.09.2013. The said aspect of the matter was disputed by the learned counsels for the respondents no. 9 & 10.

51. The above being the position and it requiring an ascertainment of facts, this Court, basing on the affidavits filed by the parties, not being in a position to reach a conclusion on the said contentions raised with regard to the services rendered by the respondents 9 & 10 by the petitioner in WP(C)4564/2023, a factual determination being called for, it is provided that the petitioner, herein, is at liberty to approach the jurisdictional Educational Tribunal as contemplated under the provisions of Section 19 (2) of the said Act of 2017 for determination of such contentions raised in the present proceeding.

52. In view of the above conclusions, this Court is of the considered view that the order dated 26.06.2023, passed by the Director of Elementary Education, Assam, would not call for any interference.

53. Accordingly, the provincialisation as effected in the case of the respondent no. 9 is not interfered with.

54. The petitioner in WP(C)/4564/2023 is directed to institute proceedings before the jurisdictional Educational Tribunal by invoking the provisions of Section 19 (2) of the said Act of 2017, for establishing his claim for provincialisation of his services in the said school within 20.09.2024. The petitioner, in the event of instituting such proceeding, shall implead the respondents no. 9 & 10 in WP(C)/4564/2023 as party respondents in such proceeding. The jurisdictional Educational Tribunal shall on proceedings being initiated before it by the petitioner in WP(C)/4564/2023 on or, before 20.09.2024, proceed with the adjudication of the matter and reach its independent conclusions therein, without being swayed by the observations made herein above in this order."

9. This Court, vide the said order, dated 01-08-2024, in WP(c) No. 4564/ 2023, had held that both the petitioner, herein, and said Md. Abdul Akher Ali were teaching the Language subject and by recording their respective dates of appointment; the petitioner, herein, was senior to said Md. Abdul Akher Ali and accordingly, the provincialisation of the services effected in Page No.# 7/8

the case of the petitioner, herein, was not interfered with.

10. The respondents have informed this Court that said Md. Abdul Akher Ali had already instituted an appeal before the jurisdictional Educational Tribunal and the same is pending. However, no order has been brought on record to reflect that the claim of said Md. Abdul Akher Ali was accepted by the jurisdictional Educational Tribunal which would mandate re- consideration of the provincialisation of the services effected in respect of the petitioner, herein.

11. In view of the above position emerging in the matter; the directions passed by this Court vide the order, dated 01-08-2024, in WP(c) No. 4564/2023, upholding the provincialisation of the services of the petitioner, herein, having continued to hold the field and the status of the petitioner, herein, as a provincialized employee being maintained; the petitioner, herein, cannot be denied his due remuneration in terms of the order of provincialisation of his services, dated 05-02-2021.

12. Accordingly, the Director of Elementary Education, Assam, is hereby directed to process the matter towards release of the remuneration due to the petitioner, herein, as a Tutor in Kesharvita M.E. Madrasa. The petitioner, herein, shall be released his current salaries w.e.f. the month of June, 2025, while the arrears due to the petitioner, shall be so computed by the Director of Elementary Education, Assam, and released to him within a period of 2(two) months from the date of receipt of a certified copy of this order.

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13. With the above directions and observations, this writ petition, accordingly, stands disposed of.

JUDGE

Comparing Assistant