Page No.# 1/8 vs The State Of Assam And 6 Ors
2025 Latest Caselaw 4215 Gua

Gauhati High Court

Page No.# 1/8 vs The State Of Assam And 6 Ors on 19 March, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                 Page No.# 1/8

GAHC010012882015




                                                         2025:GAU-AS:2917

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

                         Case No. : WP(C)/2604/2015

         SMTI RINA DEVI
         W/O SRI NITYA GOLAP ADHIKARY R/O DHAMDHAMA, P.O. NIZ-
         DHAMDHAM, DIST. NALBARI, ASSAM.


         VERSUS


         THE STATE OF ASSAM AND 6 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6.


         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI-19.


         3:THE INSPECTOR OF SCHOOLS
          NALBARI DISTRICT CIRCLE
          NALBARI.


         4:THE PRINCIPAL-CUM-SECRETARY
          DHAMDHAMA H.S. SCHOOL
          BARAMA
          DIST. NALBARI
         ASSAM.


         5:THE COMMISSIONER and SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
                                                                      Page No.# 2/8

            DISPUR
            GUWAHATI-6.


           6:THE SECRETARY
           ASSAM HIGHER SECONDARY EDUCATION COUNCIL
            BAMUNIMAIDAN
            GUWAHATI-21.


           7:SMTI. JONALI DEVI
            SUBJECT TEACHER LOGIC and PHILOSOPHY
            DHAMDHAMA H.S. SCHOOL
            BARAMA
            DIST. NALBARI
           ASSAM


Advocate for the Petitioner : MR.R BARUAH, MRS. K DEVI,MS. B CHOWDHURY,MR.T J
MAHANTA,MS.K DEVI,MS.K DAS


Advocate for the Respondent : SC, SECONDARY EDUCATION, MR.C GOSWAMI,FOR
CAVEATOR,SC, FINANCE




                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                    ORDER

Date : 19-03-2025

Heard Ms. B. Chowdhury, learned counsel for the petitioner. Also heard Mr. B. Kaushik, learned counsel for the respondent nos.1 - 3. Mr. C. Goswami, learned counsel for the respondent no.7 and Mr. D.K. Roy, learned counsel for the respondent no.6.

2. The petitioner has prayed for setting aside the impugned Speaking Order dated 25.11.2014 issued by the Director of Secondary Education, Assam, whereby it has held that the service of the petitioner cannot be considered for provincialisation, as no Feasibility Report has been made for the Subject Page No.# 3/8

Sanskrit, while the Feasibility Report has been made in the Subject, Logic and Philosophy, for which the service of the respondent no.7 was provincialised w.e.f. 01.01.2013 vide order dated 17.12.2014.

3. The petitioner's case is that she is a Subject Teacher in Sanskrit in the Dhamdhama Higher Secondary School, since 1998, while the respondent no.7 is a Subject Teacher of "Logic & Philosophy". The petitioner's case is that she being senior to the respondent no.7, her service was required to be provincialised in place of the respondent no.7, who was junior to the petitioner, in terms of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (hereinafter referred to as the "2011 Act"). On the other hand, the respondent no.7's case is that the provincialisation of service was required to be made subject-wise and not on the basis of seniority alone. The service of the respondent no.7 having been recommended for provincialisation by the District Scrutiny Committee, due to a Feasibility Report having been made in respect of the Subject "Logic & Philosophy", which the respondent no.7 was teaching, the service of the respondent no.7 was rightly provincialised.

4. The petitioner had put to challenge the recommendation of the respondent no.7 by the Assam Higher Secondary Education Council (respondent no.6), for provincialisation of the service of respondent no.7, vide WP(C) 4422/2013.

5. This Court, vide order dated 21.05.2014 passed in WP(C) 4422/2013, directed that the Director of Secondary Education to take a decision on the issue, after giving an opportunity of hearing to the parties. The operative portion of the order dated 21.05.2014 passed in WP(C) 4422/2013 is reproduced hereinbelow, as follows :

"While the petitioner is a subject teacher in Sanskrit, the Page No.# 4/8

respondent No. 5 is t he subject teacher of Logic & Philosophy. While the petitioner joined his service in the year 1998, the respondent No. 5 joined in 2008. Referring to the financial assistance provided to the petitioner, it is the case of the petitioner that she being senior to the respondent No. 5, her service is required to be provincialised. On the other hand disputing the aforesaid claim of the petitioner, it is the stand of the respondent No. 5 that provicnialsiation of service is require d to be made stream/subject wise and not on the basis of the seniority alone. Learned counsel for the respondent No. 5 submits that the District Scrutiny Committee has already recommended the case of the respondent No. 5. However, learned counsel for the petitioner submits that the same is not correct and the name of the respondent No. 5 has been shown in the feasibility list only.

Above being the disputed questions of fact, the matter is left open to be decided by the Director of Secondary Education, Assam taking note of all the attending facts and circumstances and in accordance with law and if need be providing opportunity of being heard to all the necessary parties. Depending upon the said exercise, he shall pass a speaking order as expeditiously as possible, preferably within two months.

The writ petition is disposed of."

6. In pursuance to the order dated 21.05.2014 passed in WP(C) 4422/2013, the Director of Secondary Education passed the impugned order dated Page No.# 5/8

25.11.2014, by holding that the provincialisation of the service of the petitioner could not be considered, as no Feasibility Report had been made by the Assam Higher Secondary Education Council on the Subject Sanskrit, which the petitioner was teaching, while the Subject "Logic & Philosophy" had a Feasibility Report. As such, the service of the respondent no.7 was provincialised as a Subject teacher of "Logic & Philosophy" w.e.f. 01.01.2013, vide order dated 17.12.2014.

7. The petitioner has put the impugned order dated 25.11.2014 to challenge, on the ground that the provincialisation of the respondent no.7 having been made in terms of the 2011 Act, the same had to be done on the basis of seniority along with the Feasibility Report of a subject that the Teacher was teaching.

8. The petitioner's counsel submits that in terms of the Status of subjects related to Feasibility Report, which was annexed to the letter dated 31.07.2014 issued by the Assam Higher Secondary Education Council, the Subject Sanskrit was included in the curriculum of the Dhamdhama Higher Secondary School. The petitioner's counsel thus submits that the Feasibility Report had to be made with regard to Sanskrit subject by the respondent no.6 (Assam Higher Secondary Education Council) due to the above letter dated 31.07.2014 and as such, the Feasibility Report on Sanskrit should be produced and the petitioner's service should be provincialised also, as she is senior to the respondent no.7.

9. The counsel for the respondents, on the other hand submit that the status of subjects related to the Feasibility Report, which is a part of the letter dated 31.07.2014 issued by the respondent no.6, only pertains to the subjects that were taught in the school. However, the Feasibility Report was not made by the respondent no.6 for the Subject Sanskrit, in terms of the 2011 Act, for whatever Page No.# 6/8

reason there might have been.

10. The counsel for the respondents submits that the impugned order dated 25.11.2014 issued by the Director, Secondary Education Department, had been made in pursuance to the order dated 21.05.2014 passed in WP(C) 4422/2013, wherein the matter was left open to be decided by the Director of Secondary Education, as to whose service should have been provincialised. He submits that the service of the writ petitioner could not have been considered for provincialisation, as there was no feasibility report made for the subject Sanskrit. Further, the petitioner has not been able to show as to how the impugned order dated 25.11.2014 is unreasonable or unfair. He also submits that in terms of Section 2(q) and Section 3 of the 2011 Act, concurrence/permission for teaching a particular subject in the Higher Secondary School needs to be taken from the State respondents. However, there is no permission/concurrence taken by the said School for teaching the subject Sanskrit even till today. However, concurrence for teaching the subject Logic & Philosophy was given on 26.07.2012 and as the provincialisation of teachers could only be done in terms of the number of teachers provided in the Schedule to the 2011 Act, there was no infirmity with the respondent authorities limiting the number of teachers that were provincialised, which were in relation to the subjects which were to be taught in the provincialised Schools and had a feasibility report.

11. The counsel for the respondents submits that as the 2011 Act has been struck down as being ultra vires by this Court in WP(C) 3190/2012, vide judgment and order dated 23.09.2016, no further proceedings can be initiated in terms of the 2011 Act. However, as provincialisation can still be considered in terms of the Assam Education (Provincialisation of Services of Teachers and Re-

Page No.# 7/8

Organization of Educational Institutions) Act, 2017 (hereinafter referred to as the "2017 Act"), the petitioner may make an application for considering provincialisation of her service, in terms of the 2017 Act.

12. At this stage, Ms. B Chowdhury, learned counsel for the petitioner submits that she does not wish to press the present writ petition, inasmuch as, the 2011 Act has been declared ultra vires by this Court. However, the petitioner may be given the liberty to approach the respondent authorities for provincialisation of her service in terms of the 2017 Act, particularly when the in-charge Principal of the Dhamdhama Higher Secondary School, Nalbari has written a letter dated 30.11.2012 to the Secretary, Assam Higher Secondary Education Council, Bamunimaidan, Guwahati, informing him that the subject Sanskrit has been taught in the School since 18.08.1998 and that a feasibility report was required on the subject.

13. In view of the submission made by the learned counsel for the petitioner, this Court is not deciding the writ petition on merit. However, the petitioner is given the liberty to approach the respondent No. 3, who is the Member Secretary of the District Scrutiny Committee, with regard to her prayer for provincialisation of her service in terms of the 2017 Act. The respondent No. 3 shall thereafter place the petitioner's application before the District Scrutiny Committee, Nalbari, within a period of 3 (three) months from the date of receipt of a certified copy of this order and the District Scrutiny Committee, Nalbari shall thereafter take a decision on the same. It is needless to add that if the petitioner is aggrieved with the decision taken by the District Scrutiny Committee, Nalbari, the petitioner can always make a challenge to the same as per law.

Page No.# 8/8

14. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant