Gauhati High Court

Page No.# 1/ vs The State Of Assam And 7 Ors on 20 June, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                Page No.# 1/11

GAHC010081042022




                                                           2025:GAU-AS:8223

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

                          Case No. : Review.Pet./72/2021



          THE PRINCIPAL CUM MEMBER SECRETARY OF CATHOLIC MISSION LP/ME
          SCHOOL
          SITUATED AT VILL.- SIMONABASTI
          P.O. SALNA
          DIST.- NAGAON
          ASSAM
          PIN- 782139
          REP. BY IRENIUS LAKRA
          S/O- SRI FABIANUS LAKRA
          AGE -39 YEARS
          R/O- VILL.- DIJOO TEA ESTATE
          P.O. AND DIST.- NORTH LAKHIMPUR
          ASSAM
          PIN- 787001.

          2: BENEDICTA BAGHWAR
          S/O- AKILISH BAGHWAR
           R/O- VILL.- CHANDAN T.E.
           P.O. UDALGURI
           DIST.- DARRANG
          ASSAM
           PIN- 784509.
          VERSUS

          THE STATE OF ASSAM AND 7 ORS.
          REP. BY THE CHIEF SECRETARY
          THE GOVT. OF ASSAM
          DISPUR
          GUWAHATI-6.

          2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          EDUCATION (ELEMENTARY) DEPARTMENT
           DISPUR
                                                     Page No.# 2/11

GHY-6.

3:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.

4:THE DEPUTY COMMISSIONER
CUM CHAIRMAN DISTRICT LEVEL SCRUTINY COMMITTEE
NAGAON
P.O. AND DIST-NAGAON
ASSAM
PIN- 782001.

5:THE DISTRICT ELEMENTARY EDUCATION OFFICER
NAGAON
P.O. AND DIST- NAGAON
ASSAM
PIN- 782001.

6:THE BLOCK ELEMENTARY EDUCATION OFFICER
KALIABOR EDUCATION BLOCK
P.O. KALIABOR
DIST.- NAGAON
ASSAM
PIN- 782001.

7:MISS BONTI BORAH
D/O- LATE KANDURA BORAH
VILL.- CHECHAMUKH
P.O. PALASANI
DIST.- NAGAON
ASSAM
PIN- 782003.

8:NIRMALI HAZARIKA
D/O- LATE SHAMBHURAM HAZORIKA
VILL.- BORALI GAON
P.O. BARBHAGIA
DIST.- NAGAON
ASSAM
PIN- 782138.
------------

Advocate for : MR B D DAS Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 7 ORS.

Page No.# 3/11

Linked Case :Review.Pet./85/2022

SMTI BONTI BORAH AND ANR D/O LATE KANDURA BORAH, VILL. CHECHAMUKH, P.O. PALASANI, DIST- NAGAON, ASSAM

2: NIRMALI HAZARIKA D/O LT. SAMBHURAM HAZORIKA VILL. BORALI GAON P.O. BARBHAGIA DIST- NAGAON ASSA

VERSUS

THE STATE OF ASSAM AND 10 ORS REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR, GHY-6

2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION ELE DEPARTMENT DISPUR GHY-6

3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19

4:THE DY. COMMISSIONER CUM CHAIRMAN DISTRICT LEVEL SCRUTINY COMMITTEE NAGAON P.O. DIST. NAGAON ASSAM PIN-782001

5:THE DISTRICT ELEMENTARY EDUCATION OFFICER NAGAON P.O. and DIST- NAGAON ASSAM PIN-782001

6:THE BLOCK ELEMENTARY EDUCATION OFFICER KALIABOR EDUCATION BLOCK P.O. KALIABOR DIST- NAGAON ASSAM Page No.# 4/11

PIN-782001

7:THE PRINCIPAL CUM MEMBER SECRETARY CATHOLIC MISSION LP ME SCHOOL VILL. SIMONABASTI P.O. SALNA DIST- NAGAON ASSAM PIN-782139

8:IRRENEOUS LAKRA S/O SRI FABIANUS LAKRA VILL. DIJOO TEA ESTATE PO AND DIST NORTH LAKHIMPUR ASSAM 787001

9:SANKAR ROY VILL. SIMONABOSTI NO.2 NEAR P.H.C. P.O. SALNA P.S. SAMAGURI DIST- NAGAON ASSAM PIN-782139

10:PRADIP DAS VILL. SIMONABOSTI NO.2 NEAR P.H.C. P.O. SALNA P.S. SAMAGURI DIST- NAGAON ASSAM PIN-782139

11:BENDICTA BAGHAWAR D/O AKILISH BAGHWAR

RESIDENT OF VILLAGE CHANDAN TEA ESTATE PO UDALGURI DIST DARRANG ASSAM 78450

Advocate for the Petitioner : MR. P D NAIR, MR. A CHETRY,S R A NASER,MR. H ROHMAN,MR G ALAM

Advocate for the Respondent : SC, ELEM. EDU, MS RIMA DAS (r-9,10),MS. G BORAH (r- 9,10),MS ANNA K P,MS. P ADHIKARI,G UDDIN,MR B D DAS,GA, ASSAM Page No.# 5/11

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

20/06/2025

Heard Mr. B D Das, learned Senior counsel assisted by Ms. R Deka, learned counsel for the review petitioners in Review Pet. No. 72/2021. Heard Mr. P D Nair along with Mr. G Alam, learned counsel for the review petitioners in Review Pet. No. 85/2022. Also heard Mr. G Uddin, learned counsel representing the respondents in the Catholic Mission L.P., M.E. and High School, Simonabasti, Salna, District-Nagaon and for the Chairman/Bisoph, DIOCESE of Tezpur Catholic Mission and Mr. P N Sarma, learned Standing counsel, Elementary Education Department for the State respondents in both the review petitions.

2. The present review petitioners of Review Petition No. 85/2022 earlier as petitioner Nos. 1 & 2 filed a writ petition being WP(C) No. 3393/2013. The stand of the petitioners therein were that the authorities of the Catholic Mission M.E. School, Simonabasti, Salna, District-Nagaon appointed the petitioner No. 1 in the year 1991 and the petitioner No. 2 in the year 1992 as Assistant Teachers in the said Catholic Mission M.E. School being a Venture Educational Institution. Pursuant to those appointment orders, the petitioner No. 1 joined her service on 21.03.1991 and petitioner No. 2 on 03.01.1992 respectively.

3. Though they were appointed as Assistant Teachers in the concerned M.E. School, but they were allotted class in both Lower Primary as well as M.E. Schools of the said School. In the meanwhile, the said Catholic Mission M.E. & L.P. School was taken up for consideration for provincialisation under the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 as amended in 2012.

4. On 06.03.2013, the authorities in the Elementary Education Department of the State published the list in its website enlisting the M.E. and L.P. Schools that were considered for provincialisation under the said 2011 Act. In the said list Catholic Mission M.E. School as well as the Catholic Mission L.P. School, both at Salna under Kaliabor Education Block of Nagaon District figured at Sl. No. 30 and at Sl. No. 123, respectively, but in the said list against the two schools names of the petitioners did not figure, though they claimed to be the senior most teachers of those two schools Page No.# 6/11

and rather names of the junior teachers and outsiders who did not serve in those two schools were figured for provincialisation under the 2011 Act against those two schools.

5. Aggrieved with such recommendation of the Principal-cum-Member Secretary of Catholic Mission Schools as well as the Departmental authorities of the Elementary Education Department illegally depriving them from provincialisation of their services having legitimate claim, the petitioners submitted representations before the District Elementary Education Officer, Nagaon along with reminders, but those were not considered. As such, being aggrieved, both the petitioners preferred a writ petition being WP(C) No. 3393/2013 praying amongst others (i) to set aside and quash the impugned list dated 06.03.2013 pertaining to Catholic Mission M.E. and L.P. Schools at Sl. No. 30 and 123 respectively under Nagaon District for the purpose of provincialisation of services of Venture M.E. and L.P. Schools; (ii) to direct the respondent authorities to cancel, recall or otherwise forebear from giving effect for provincialisation of Catholic Mission M.E. and L.P. Schools at Salna, District-Nagaon with the private respondents whose names figured for provincialisation against those two schools and further (iii) to direct the respondent authorities not to provincialise the services of the respondent Nos. 8, 9, 10 and 11 of said WP(C) No. 3393/2013 in the Catholic Mission M.E. and L.P. Schools at Salna, Nagaon and to do necessary arrangements for provincialising the services of the petitioners in Catholic Mission M.E. School, Salna, Nagaon.

6. The respondent Nos. 7 to 11 in said WP(C) No. 3393/2013 that includes the Principal-cum- Member Secretary of said Catholic Mission L.P. and M.E. School (respondent No. 7) and other private respondents whose names figured for provincialisation under the said 2011 Act in said Catholic Mission M.E. School (respondent Nos. 8 & 9) and Catholic Mission L.P. School (respondent Nos. 10 &

11) in their affidavit categorically stated that Catholic Mission L.P. School, Catholic Mission M.E. School and Catholic Mission High School that are running from the same campus in a composite way is a Minority Educational Institution as per the provisions of Article 30 of the Constitution of India that is established and managed by the DIOCESE of Tezpur denying the claims of the petitioners and placing the document of National Commission for Minority Educational Institutions, Government of India, New Delhi dated 08.03.2010 certifying that Catholic Mission L.P., M.E., High School, Salna, District-Nagaon, Assam managed by the DIOCESE of Tezpur are Minority Educational Institutions within the meaning of Section 2(g) of the National Commission for Minority Education.

7. For those respondent Nos. 7 to 11, it was also placed before the Court that order of the State Government in the Secondary Education Department by letter under Memo No. B(3)S.56/2003/38 Page No.# 7/11

dated 27.02.2003 issued by the Commissioner & Secretary, Government of Assam in the Education Department clarifying that pursuant to the judgment of the Hon'ble Supreme Court in the case of TMA Pai Foundation and Others Vs. State of Karnataka , the Christian Schools run by Catholic Missionaries in Assam have the authority to take necessary steps for their proper management, administrative matters, such as, constitution of the Management Committee and the Appointment of the Head of the Institution and other teaching and non-teaching staff provided they possess the requisite academic qualifications and the same will also applicable in respect of provincialised institution that came into force with immediate effect.

8. It was placed before the Court on behalf of the respondent Nos. 7 to 11 that Catholic Mission L.P. and M.E. School, Salna, Nagaon being Minority Educational Institution under Article 30 of the Constitution of India, therefore, they does not come under the purview of the Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006, the Assam Non-Government Educational Institutions (Regulation and Management) Rules, 2007 and also not under the purview of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 as amended in 2012. In that regard, on behalf of the respondent Nos. 7 to 11 placed the provisions of Section 2 (g) of said 2006 Act and also the provisions of Sub-Sections (1) and (6) of Section 3 of said 2011 Act. It was contended by the respondent Nos. 7 to 11 that as the said Catholic Mission L.P. and Catholic Mission M.E. Schools, Salna, Nagaon do not come under the purview of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 as amended in 2012, the State respondents cannot provincialise those schools and the petitioners also cannot claim any right for provincialisation.

9. Considering such provisions of 2006 Act, 2007 Rules and the 2011 Act as amended and that both the Catholic Mission L.P. and Catholic Mission M.E., Salna, District-Nagaon are Minority Educational Institutions under Article 30 of the Constitution of India, the Court found that the claim of the writ petitioners, i.e., the present review petitions made in said WP(C) No. 3393/2013 are not maintainable and as such, by order dated 02.03.2016 closed the said writ petition vacating the interim order dated 21.06.2013 by which the benefit of provincialisation proposed to be granted to the respondent Nos. 8 to 11 in said WP(C) No. 3393/2013 under the said 2011 Act was stayed.

10. Now, the two applicants i.e., the Principal-cum-Member Secretary of Catholic Mission L.P. and M.E. School, Simonabasti, Salna, District-Nagaon and one Benedicta Baghwar respondent Nos. 7 & 11 of WP(C) No. 3393/2013 respectively, have filed the Review Pet. No. 72/2021 for review of the said Page No.# 8/11

order dated 02.03.2016 passed in WP(C) No. 3393/2013 stating that the Director of Elementary Education, Assam by order No. EE(Plan)-Provn./L.P./Nagaon/ 308/2013/51 dated 14.05.2013 provincialised the service of both the applicants against Catholic Mission L.P. School under Kaliabor Education Block of District-Nagaon under the provisions of the Assam Venture Educational Institutions (Pronvincialisation of Services) Act, 2011 as amended in 2012 in pursuance of the Government letter No.PMA-29/2013/Pt.-I/129 dated 26.03.2013.

11. It is submitted by the learned counsel for the review petitioner of Review Pet. No. 72/2021 that the concerned counsel, Mr. Ravi Sagar who appeared for the review petitioners also advanced his arguments in favour of the respondent Nos. 8 & 11 in said WP(C) No. 3393/2013 and there was no instruction to him by the present review petitioners that State respondents cannot provincialise the said Catholic Mission L.P. & M.E. School as it does not come under the purview of the said 2011 Act as amended.

12. The review petitioners in spite of provincialisation of their services by order dated 14.05.2013 did not receive their salaries and on enquiry came to know about the said order dated 02.03.2016 passed in WP(C) No. 3393/2013.

13. It is stated by Mr. Das, learned Senior counsel that because of some bonafide oversight and accidental slip or inadvertent omission on the part of the counsel for the present review petitioners in said WP(C) No. 3393/2013, the Court on 02.03.2016 passed the impugned order which has contradicted the settled position of law but also have created restriction on substantive right of the review petitioners to pursue their remedy that stood defeated and considering such apparent situation in order to enable them to pursue their remedy prayed for modification of the said order dated 02.03.2016 passed in WP(C) No. 3393/2013.

14. Mr. Das, learned Senior counsel submitted that as per the said 2011 Act, the Government authorities provincialised the services of the teachers of minority school like any other venture schools but such provincialisation has been done on the basis of recommendation of the Managing Committee of minority school. Mr. Das, stated that numbers of minority run schools in Assam have already been provincialised by the State Government under the prevailing Acts and Rule and also provincialised the services of teaching and non-teaching staff. In that regard, Mr. Das placed reliance on the decision of the Hon'ble Division Bench of this Court in the case of Dipankar Bhattacharjee, Vs. State of Assam and Others reported in 2000 (3) GLT 480.

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15. Hence, this application for review or to pass necessary order relating to the order dated 02.03.2016 passed in WP(C) No. 3393/2013 in the interest of justice.

16. During pendency of said Review Pet. No. 72/2021, the two writ petitioners of WP(C) No. 3393/2013 also filed Review Pet. No. 85/2022 on 26.04.2022 for review of the order dated 02.03.2016 passed in WP(C) No. 3393/2013 stating that they have learnt that a process for provincialisation of service of the teaching staff of the Catholic Mission High School has been initiated under the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

17. The review petitioners of Review Pet. No. 85/2022/writ petitioners of WP(C) No. 3393/2013 have stated that the respondent Nos. 8 & 11 in said Review Pet. 72/2021 admitted that a mistake and omission has popped out in the order dated 02.03.2016 passed in WP(C) No. 3393/2013 as their engaged counsel without any instruction from them made contrary submission as well as pleading in their affidavits for which the Court have passed the order dated 02.03.2016 in WP(C) No. 3393/2013 closing the writ petition on the ground of maintainability and had their engaged counsel could not had made such submission, the Court would not have passed the said order dated 02.03.2016. Hence, the petitioners of Review Pet. No. 85/2022/writ petitioners prayed for the inherent jurisdiction of this Court to adjudicate the said WP(C) No. 3393/2013 by reviewing the order dated 02.03.2016 passed in WP(C) No. 3393/2013.

18. Learned counsel for the review petitioners during the deliberation of the matter brought to the notice of the Court that during pendency of these two review petitions, the Director of Secondary Education, Assam vide Order No. PC/Sec./Prov./21/2021/15 dated 04.02.2021, in pursuance of the letters of the State Government in the Secondary Education Department bearing Nos. ASE./208/2019/1007 dated 03.02.2021 and ASE.46/2021/6 dated 03.02.2021 provincialised the services of teachers/tutors and non-teaching staff of the Catholic Mission High School, Simonabasti, Salna, District-Nagaon w.e.f. 01.01.2021 under the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 as amended in 2018 and the Assam Education (Provincialisation of Services of Non-Teaching Staff of the Venture Educational Institutions) Act, 2018.

19. The petitioners of both the review petitions as well as the respondents admitted the fact that Catholic Mission L.P. and M.E. Schools as well as Catholic Mission High School, Simonabasti, Salna, District-Nagaon are Christian Schools managed by DIOCESE of Tezpur Catholic Missionaries and are Page No.# 10/11

Minority Educational Institutions under Article 30 of the Constitution of India and that all the three schools are within the same campus of the building.

20. The review petitioners as well as the respondents including the State respondents in the Education Department also admitted that the management of those three Minority Schools gave their consent for their provincialisation under the relevant provincialisation Act.

21. The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012 was struck off by a Division Bench of this Court being unconstitutional and thereafter, the State Government in the Education Department brought into force the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 as amended in 2018 for the purpose of provincialisation of teaching staff of such Venture Educational Institutions and the Assam Education (Provincialisation of Services of Non-Teaching Staff of the Venture Educational Institutions) Act, 2018 for provincialisation of non-teaching staff of the Venture Educational Institutions.

22. Relying on a decision of the Hon'ble Supreme Court, more particularly, Shri Ambika Prasad Kedia and Others Vs. State of Assam and Others in Civil Appeal Nos. 1710 to 1721 of 1987 and 1074 of 1987 cited in the case of Arya Sama Vs. State of Meghalaya , a decision of the learned Single Judge of this Court in WP(C) No. 72 (SH)/1999, decided on 24.11.2000, a Division Bench of this Hon'ble Court in the case of Dipankar Bhattacharjee Vs. State of Assam and Others (Supra) that relates to Bengali Higher Secondary School, Guwahati, a Minority Educational Institution under the provisions of Article 29 and 30 of the Constitution have held that the State shall not in granting aid to the educational institution discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language and that Article 30 must be read as a whole and the fact that a minority educational institution excepts all does not imply that the minority community concerned has forfeited the right to administer it.

23. Considering the entire aspects of the matter, the law laid down by the Hon'ble Apex Court and the decision of the Hon'ble Division Bench of this Court, this Court is of the view that the order dated 02.03.2016 passed in WP(C) No. 3393/2013 needs to be reviewed.

24. Accordingly, the order dated 02.03.2016 passed in WP(C) No. 3393/2013 is reviewed and hereby recalled.

25. Consequently, WP(C) No. 3393/2013 is restored to the file.

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26. Registry shall place the said WP(C) No. 3393/2013 before the appropriate Bench forthwith for its necessary adjudication.

JUDGE

Comparing Assistant