Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 4 Ors on 24 March, 2025
Page No.# 1/21
GAHC010166572023
2025:GAU-AS:3262
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4353/2023
MUSARIF HUSSAIN LASKAR
SON OF LATE SIRAJ UDDIN LASKAR,
VILL- RANGIRGHAT PART-I,
P.O.- GOBINDANAGAR,
DIST.- CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOT. OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION,
DISPUR, GHY-06.
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
ASSAM
DISPUR
GHY-06.
3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-06.
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
5:THE INSPECTOR OF SCHOOLS
CDC
Page No.# 2/21
CACHAR
P.O. AND DIST.- CACHAR
ASSAM
PIN- 788001
Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE
Linked Case : WP(C)/3035/2023
ABDUL HANNAN LASKAR
SON OF LATE MOKLESUR RAHMAN
VILL. BAKRIHOWAR
PO- CHIPORSANGON
DIST.- HAILAKANDI
ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
DISPUR
GHY-06.
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
ASSAM
DISPUR
GUWAHATI-06.
3:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM
FINANCE DEPARTMENT
DISPUR
Page No.# 3/21
GUWAHATI-06.
4:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19.
5:THE INSPECTOR OF SCHOOLS
HDC
HAILAKANDI
P.O. AND DIST.- HAILAKANDI
ASSAM
PIN- 788150.
------------
Advocate for : MR. M KHAN
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 4 ORS
Date of hearing : 18.12.2024.
Date of judgment : 24.03.2025
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (CAV)
Heard Mr. M. Khan, learned counsel for the petitioners and Ms. D. Musahary,
learned Standing Counsel for the Secondary Education Department.
2. In these petitions, i.e. WP(C) No. 3035/2023 and WP(C) No. 4353/2023,
under Article 226 of the Constitution of India, the petitioners, namely, Abdul
Hannan Laskar and Musarif Hussain Laskar have challenged the same common
Order, No. ASE95/2022/218-A, dated 20.02.2023, passed by the Secretary to the
Government of Assam, Department of School Education.
3. As a common question of law is involved in these two writ petitions and as
agreed upon by learned Advocates of both sides, it is proposed to dispose of these
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two petitions, by this common judgment and order.
4. It is to be noted here that vide order dated 20.02.2023, the claim of the
petitioners with regards to granting of graduate scale of pay, was rejected by the
Department of School Education.
Background facts:-
5. The background facts leading to filing of these two writ petitions are briefly
stated as under:-
"The petitioner in writ petition No. 4353/2023, namely, Musarif Hussain
Laskar was initially appointed as Assistant Teacher for pre-senior
section in Sonai Senior Madrassa in the district of Cachar, vide order
dated 28.10.1984, in intermediate scale of pay. He joined the service
on 11.11.1984. Thereafter, he obtained graduate degree in Arts from
Assam University Silchar, in the year 1994. Thereafter, his service was
shifted to senior section of the said Madrassa.
And the petitioner in writ petition No. 3053/2023, namely, Abdul
Hannan Laskar was initially appointed as Assistant Teacher in
Bhatirkupa Senior Madrassa in the district of Hailakandi, vide order
dated 09.09.1996, and he joined on 12.09.1996. At the time of his
appointment he was FM passed, under State Madrassa Education
Board and thereafter, he had obtained graduate degree in Arts from
Assam University Silchar.
Thereafter, under the provisions of Sections 3 and 5 of the
Assam Madrassa Education (Provincialization) Act, 1995, 74 numbers of
Senior Madrassas, including teaching and non-teaching staffs, who
were functioning under the Deficit Scheme have been provincialised by
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an order dated 15.03.1996, w.e.f. 15.08.1994. Accordingly, the service
of the petitioners, as Assistant Teacher in Sonai Senior Madrassa,
Assistant Teacher in Bhatirkupa Senior Madrassa, in the intermediate
scale of pay, had been provincialised.
Thereafter, vide order dated 18.12.2004, the scale of the
petitioners was re-fixed for being graduate and upgraded to the
graduate scale of pay, i.e. Rs. 3580 - 8750/-. Accordingly, the
petitioners were provided graduate scale of pay, in view of notification,
dated 30.12.1993 and also granted financial up-gradation, under the
Assured Career Progression Scheme (ACPS).
Thereafter the petitioners got the said benefit and the same was
extended in the report of 5th and 6th Pay Commission and
subsequently, in the report of the 7 th Pay Commission also such benefit
was extended.
Thereafter, pursuant to an order of this Court dated 30.01.2014,
passed in W.P(C) No. 3475/2008, the up-gradation of the petitioners
from the intermediate scale of pay to the graduate scale of pay was
cancelled. In the said writ petition, it was held that the teachers of
Senior Madrassas are not entitled to the benefits of the Government
notification, dated 30.12.1993, as the same is applicable only to the
teachers of provincialised High/Higher Secondary schools.
The contention of the petitioners is that while notification, dated
30.12.1993, the services of incumbents in the Madrassa institutions
was not provincialised and such provincialization took place only in the
year 1995. And as such, there is no mention about the Madrassa
institutions in the notification, dated 30.12.1993. This aspect of the
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matter along with the fact that the structure of Madrassa institution
were effected as per the structure of Secondary Provincialised Schools,
by extending similar benefits and the said point was not raised before
this Court while considering the issues involved in W.P.(C) No.
3475/2008.
Thereafter, the Director of Madrassa Education, Assam by an
order, dated 04.06.2012, directed the head of the provincialised Senior
Madrassas and Arabic Colleges to discontinue the graduate scale of pay
of the incumbents who were serving in intermediate post. However, the
said order, dated 04.06.2012, was kept in abeyance until further order
by the Government, vide letter, dated 28.06.2012. Thereafter, vide
order dated 29.06.2012, keeping in abeyance the earlier order dated
04.06.2012 pursuant to Govt. letter dated 28.06.2012, is still in force
which is evident from the letter dated 20.06.2017 of Directorate of
Madrassa Education, Assam.
Subsequently, the Directorate of Madrassa Education has been
merged with the Directorate of Secondary Education of Assam and all
the staffs of the Directorate of Madrassa Education have been brought
under the administrative control of the Directorate of Secondary
Education, Assam and the Director of Secondary Education, Assam vide
letter, dated 03.11.2017, instructed all the Inspector of Schools to take
necessary instructions in terms of the Government letter, dated
05.07.2017. Then the Joint Secretary to the Government of Assam,
Secondary Education Department informed the then Directorate of
Madrassa Education, Assam about the judgment and order dated
30.01.2014, passed in W.P(C) No. 3475/2008, whereby it was declared
that the intermediate teachers of Senior Madrassa are not entitled to
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the benefit of the Government Notification dated 30.12.1993. Then,
after receiving the aforesaid communication, the Inspector of Schools
instructed the Superintendent cum DDO of the Madrassa to make
salary proposal in the intermediate scale of the assistant teachers as
per Government Communication, dated 05.07.2017 and letter of the
Director, dated 03.11.2017, and while the Government Communication
dated 28.06.2012 is in force, the respondents issued the impugned
communication dated 05.07.2017, without taking final decision in
consultation with the Finance Department.
Thereafter, the petitioners were reverted back from graduate
scale of pay to intermediate scale of pay, without providing any
opportunity of hearing to the petitioners. Further, the petitioners were
neither a party in W.P(C) No. 3475/2008, nor they were aware of about
the judgment of the said writ petition. The said judgment was
pronounced basically considering the applicability of the Government
Notification, dated 30.12.1993, in respect of the teachers of the
provincialised Senior Madrassas.
The pleaded case of the petitioners is that though the
Government Notification dated 30.12.1993 is not applicable for the
teachers of Senior Madrassas, even that they are otherwise entitled to
the benefit of graduate scale of pay as they are similarly situated
employees that of the incumbents of High Schools and High Madrassas
and on that perception the authorities had extended the benefits to the
teachers of provincialised Madrassas as extended to the teachers in
provincialised Secondary Schools.
Thereafter, the petitioners, along with three others preferred a
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writ petition being W.P.(C) No. 7345/2017, before this Court and during
the pendency of the said writ petition the respondent No. 1 again
issued the impugned letter dated 29.11.2017, whereby the claim of the
petitioners had been categorically declined taking the plea of the order
dated 30.01.2014, passed in W.P.(C) No. 3475/2008. However, the said
order dated 29.11.2017 was not put under challenge for which the said
writ petition was closed vide order dated 30.07.2019, granting liberty
to the petitioners to challenge the order dated 29.11.2017.
Thereafter, the petitioners, along with three others filed a writ
petition being W.P.(C) No. 6570/2019, which was disposed on
04.09.2019, directing the petitioners to submit a details representation
before the respondent No. 1, claiming the parity of pay scale as given
to their counterpart, i.e. graduate scale of pay, who are serving as
Assistant Teacher having graduate degree and the respondent
authorities were further directed to take a decision on the matter by
issuing speaking order within three months. In the aforesaid order, the
court did not decide the entitlement of Teachers of Madrassa for up-
gradation to graduate scale of pay, but simply said that the Madrassa
Teachers are not covered by the notification dated 30.12.1993.
Thereafter, the petitioners had preferred one detail
representation on 04.09.2019 and as no action was initiated on the
same, the petitioners had filed a contempt petition, being Contempt
Case (C) No. 124/2021, before this Court and during the contempt
proceeding, the Special Commissioner of Education Department had
produced an order dated 17.08.2021, whereby the claim of the
petitioners had been declined and having satisfied with that the order
dated 17.08.2021, was not at par with the direction given in the order
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dated 04.09.2021, in W.P.(C) No. 6570/2019, passed the order dated
26.08.2021, in Contempt Case (C) No. 124/2021, whereby the
contemnor was directed to re-look into the claim of the petitioners and
pass a reasoned order as per observation made by this Court in the
order dated 26.08.2021. And the said order was directed to be carried
out within a period of two months from the date of receiving of
certified copy of the said order dated 26.08.2021. But, the said order
was not complied with by the respondent authorities and for which the
petitioners again filed one contempt case before this Court, being
Contempt Case (C) No. 500/2021 and on 21.02.2023, the respondents
contemnor produced the impugned order dated 20.02.2023, whereby
the claim of the petitioners was rejected on the same ground, which
was taken in earlier order dated 17.08.2021. Accordingly, the said
contempt case was closed on 21.02.2023, by granting liberty to the
petitioners to challenge the said order dated 20.02.2023.
The stand of the petitioners is that the Madrassa institutions
were governed by different statute and different set of Rules and
Madrassas were provincialised under the provision of Sections 3 and 5
of the Assam Madrassa Education (Provincialisation) Act, 1995 and all
the existing eligible teaching and non-teaching staff of Senior
Madrassas, Title Madrasssa and Arabic Colleges were covered by deficit
system of grants-in-aid, w.e.f. 15.08.1994. And since the institution
where the petitioners are working were under secondary level and the
post held by them was the post of secondary level, they were allowed
to receive graduate scale of pay at par with their counterpart teacher
of non-Madrassa institutions.
The stand taken of the respondent in the letter of Government
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dated 05.07.2017, as well as in the DSE letter dated 03.11.2017, and in
the order dated 17.08.2021, has already been clarified by this Court in
the order dated 26.08.2021, passed in Contempt Case (C) No.
124/2021.
Thereafter, vide notification dated 12.02.2021, the Government
of Assam was pleased to repeal the Assam Madrassa Education
(Provincialisation) Service Rules, 2016 and accordingly, all the Senior
Madrassa and Arabic Colleges have been converted to school by
omitting the word 'Madrassa' and the syllabus and elective subjects
available in HSLC have been added and also it is stated that the Board
of Secondary Education, Assam shall implement HSLC course
curriculum and all the Madrassas were directed to introduce HSLC
curriculum. However, it is clarified that existing staff both teaching and
non-teaching of the Madrassa Educational Institutions, which were
governed under the Rules mentioned under Clause (i) of the
notification dated 12.02.2021, shall be governed under the Assam
Secondary Education (Provincialised Schools) Service Rules, 2018.
Further, the pleaded case of the petitioners is that vide impugned
order dated 20.02.2023, the authorities are trying to say that FM and
MM qualification teachers does not match with the qualification
prescribed for a teacher of High School and that service of the teachers
of Madrassa Education now be governed by the provision of the Assam
Secondary Education (Provincialised Schools) Service Rules, 2018 and
as per Rule 14, a teacher should be a graduate in a particular stream
or subject with B.T./B.Ed. degree from recognized university. The
respondent No. 1, while considering the case of the petitioners, has
failed to take into account that the present petitioners are having
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general graduate degree, i.e. B.A. and serving as general Assistant
Teacher. And after conversion of Madrassa to School the petitioners are
entrusted with the classes in general subject. The further pleaded case
of the petitioner is that being graduate they are taking classes in
general subjects since his initial date of joining in the Madrassa and he
is not the teacher of theological subject and without considering the
said aspect, the respondent No. 1 had mechanically issued the
impugned order dated 20.02.2023.
Under such circumstances, it is contended to set aside the
impugned order dated 20.02.2023, passed by the respondent No. 1,
Secretary to the Government of Assam, Department of School
Education and to direct the respondent authorities to provide graduate
scale of pay to the petitioners.
6. It is to be noted here that the respondent authorities have not filed affidavit-
in-opposition in W.P.(C) No. 4353/2023. However, the respondent No. 4, the
Director of Secondary Education, Assam has filed affidavit-in-opposition in W.P.(C)
No. 3035/2023, denying the averments made in the petition. The stand of the
respondent No. 4 in the said writ petition is that the petitioner, namely, Abdul
Hannan Laskar was appointed as Assistant Teacher against the intermediate vacant
post on 09.09.1996 and he joined on 12.09.1996, at the erstwhile Bhatirkupa
Senior Madrassa, and the said Institution was provincialised w.e.f. 15.08.1994 and
he was upgraded to the graduate scale of pay like other similarly situated graduate
incumbents, under the provision of the Government (Department of School
Education) Notification No. B(3)S.888/93/10, dated 30.12.1993. But, the petitioner
was not allowed to draw graduate scale of pay for which the petitioner filed the
present writ petition, claiming the graduate scale of pay as per rule under the
provision of Government (Secondary Education Department) Notification No.
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ASE.503/2011/77, dated 16.12.2016. And that the post held by the petitioner can
be upgraded to the graduate post only after the retirement of incumbent.
Subsequently, Bhatirkupa Senior Madrassa was re-organised as High School and
subsequently amalgamated/merged with another base high school namely M.R.C.
High School and comes under the administration control of the Directorate of
Secondary Education, Assam. Further contention of the respondent No. 4 is that as
per the Government notification No. ASE.503/2011/77, dated 16.12.2016, the
service condition of the staffs, after re-organisation on high school shall remain the
same as it was earlier and that the order, dated 30.12.1993, was meant for the
High/Higher Secondary School and silent in cases of the intermediate teacher of
erstwhile Madrassa under Madrassa Directorate. Therefore, it is contended to
dismiss this petition.
7. An affidavit-in-reply is also filed by the petitioner, Abdul Hannan Laskar
denying the averments made in the affidavit-in-opposition and it is stated that the
existing staff both teaching and non-teaching of Madrassa Institutions would be
governed under the Assam Secondary Education (Provincialised Schools) Service
Rules, 2018 and their condition of service shall continue without any change in
their status and pay etc. and the teachers in a High School having FM/MM
qualification are also receiving graduate scale of pay, but he is deprived of the
same.
Submissions:-
8. Mr. Khan, learned counsel for the petitioners submits that initially the
Madrassas were receiving deficit grant-in-aid from the Government and
subsequently, the Assam Madrassa Education (Provincialization) Act, 1995 was
introduced and thereafter, 74 numbers of Senior Madrassas, Title Madrassas and
Arabic Colleges including the teaching and non teaching staffs of those Madrassas
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functioning under the deficit scheme of grants-in-aid of the Governemnt of Assam
have been provincialized w.e.f. 15.08.1994. But, the notification, dated 30.12.1993,
is silent about the up-gradation of teachers of Madrasssas in intermediate scale to
the graduate scale of pay. Mr. Khan, further submits that though the petitioners
were working in intermediate scale of pay, both are BA degree holder from Assam
University, Silchar and though they were working in Madrassas, yet they have not
been teaching theological subjects having MM and FM qualification. Mr. Khan also
submits that since the petitioners were not party in W.P.(C) No. 3475/2008,
wherein vide order dated 30.01.2024, it was held that notification dated
30.12.1993, is to provincialised High Schools and Higher Secondary Schools, yet,
while the said Notification was issued, none of the Madrassas of the States were
provincialized and as such, the benefit of the said notification cannot be extended
to the teachers of Senior Madrassa and the same has also been clarified in W.P.(C)
No. 6570/2019 and also in the Contempt Case (C) No. 124/2021 and therefore, the
impugned order dated 20.02.2023, by which the claim of the petitioners was
declined, fails to withstand the legal scrutiny. Under such circumstances, it is
contended to set it aside and to grant relief to the petitioners as prayed for.
9. On the other hand, Ms. Musahary, learned Standing Counsel for the Secondary
Education Department submits that the benefit of graduate scale of pay cannot be
extended to the petitioners in view of the order of this Court, dated 03.01.2014,
passed in W.P.(C) No. 3475/2008. Ms. Musahary, further submits that the benefit of
the notification dated 30.12.1993 can be extended to the teachers of provincialised
High Schools and Higher Secondary Schools and therefore, it is contended to
dismiss this petition.
Discussion:-
10. Having heard the submissions of learned counsel for both the parties, I have
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carefully gone through the petition as well as the documents placed on record and
also perused the order dated 30.01.2014, passed in W.P.(C) No. 3475/2008 and
also the order dated 04.09.2019, passed in W.P.(C) No. 6570/2019 and also the
impugned order dated 20.02.2023, passed by the Secretary to the Government of
Assam, Department of School Education in compliance of the order dated
26.08.2021, passed by this Court in Cont.Cas(C) No. 124/2021.
11. In this context, for better appreciation of the dispute in question, this Court
deems it necessary to reproduce the operative portion of the impugned order,
dated 20.02.2023, passed by the Secretary to the Government of Assam,
Department of School Education herein below:-
"Findings:-
In compliance of Hon'ble High Court's Order dated 04/09/2019
passed in WP (C) No. 6570/2019, the Govt in Secondary
Education Department had issued an Order vide No. ASE
185/2021/COP (C) 124/2021/27 dated 17/8/2021 rejecting
the claim of the petitioners for granting of graduate
scale of pay. But, in the mean time, the petitioners
filed a contempt case vide COP (C) No. 124/2021 and
Hon'ble High Court disposed of the same on 26/8/2021
directing the then Special Commissioner of Secondary
Education Department to take a further decision on the
entitlement of the petitioners for graduate scale of
pay. Accordingly, the matter was again examined
thoroughly and it appears that the petitioners are F.M.
& M.M qualified teachers of the erstwhile Madrassas and
the said qualification of the petitioners does not fit
into the present syllabus of the Board of Secondary
Education, Assam for the general schools. As and when
the Madrassas were functional, the theological part of
F.M. & M.M. qualification was of graduate level
standard and hence any teachers of the then Madrassas
having F.M. & M.M. qualification could have taken
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classes at the Senior Madrassa level. But in the event
of abolish of Assam Madrassa Education (Provincialised)
Service Rules, 2016, the services of the petitioners
are now governed by the Assam Secondary Education
(Provincialised Schools) Service Rules, 2018. According
to the said Rule, the F.M. & M.M. qualification does
not match with the qualification prescribed for a
teacher of High School. As per Rule 14 of the Assam
Secondary Education (Provincialised Schools) Service
Rules, 2018, a teacher of High School should be a
graduate in a particular stream or subject with
B.T/B.Ed. degree from recognized university.
Order:-
After careful consideration of the above and in
continuation to our views expressed in the earlier
Speaking Order issued vide No. ASE 185/2021/COP (C)
124/2021/27 dated 17/8/2021, it has been decided that
the claim of the petitioners for up-gradation of their
graduate scale of pay, which was withdrawn earlier
cannot be further considered."
12. It is not in dispute that the petitioner in WP(C) No. 3035/2023, namely,
Abdul Hannan Laskar was appointed in Bhatirkupa Senior Madrassa and the
petitioner in WP(C) No. 4353/2023, namely, Musarif Hussain Laskar was appointed
in Sonai Senior Madrassa in intermediate scale of pay. And it also appears that
subsequently, they obtained BA degree from Assam University, Silchar. It is also not
in dispute that though the petitioners were working in Madrassa, yet, they have
been teaching in general subjects not in theological subject from the very
beginning. The categorical averment of the petitioners remained undisputed here
in this case.
12.1. It appears that all the teaching and non-teaching staffs of 74
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numbers of Madrassas, were provincialised under the provision of Sections 3 and 5
of the Assam Madrassa Education (Provincialization) Act, 1995 vide order dated
15.03.1996, w.e.f. 15.08.1994, and the petitioners were given the benefit of
graduate scale of pay vide order dated 06.10.2004, as per ROP Rules, 1998. They
were enjoying the benefit till the same was withdrawn vide letter 05.07.2017, No.
ASE.470/2012/26, Annexure-10. And the said letter was based on the order of this
Court, passed in W.P.(C) No. 3475/2008, wherein it was held that the benefit
granted to the High/Higher Secondary Schools cannot be extended to the Senior
Madrassas.
12.2. But, the fact remains that while the notification dated 30.12.1993 was
issued, the Madrassa institutions were not provincialized, but the same were
provincialized under the Assam Madrassa Education (Provincialization) Act, 1995
vide order dated 15.03.1996, w.e.f. 15.08.1994.
12.3. It is also not in dispute that the earlier Madrassas were governed by the
Assam Madrassa Education (Provincialised) Service Rules, 2016 and after it was
repealed, now they are governed by the Assam Secondary Education
(Pronvincialised Schools) Service Rules, 2018.
Clarification in W.P.(C) No. 6570/2019
13. The present petitioners and three others, after withdrawal of the benefit of
graduate scale of pay of the petitioners, vide letter 05.07.2017, No.
ASE.470/2012/26, Annexure-10, had preferred a writ petition being WP(C) No.
6570/2019 challenging the said letter, where in a Co-ordinate Bench of this Court
vide order dated 04.09.2019, had clarified the order of this Court passed in W.P.(C)
No. 3475/2008, on 30.01.2014, to the extent that this Court had neither decided
on the issue of policy decision nor said that the petitioners are not otherwise
entitled for upgradation to graduate scale of pay and what the Court had decided
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in the said petition is that the petitioners therein are not covered by Notification
dated 30.12.1993.
The Equality Test:-
14. Article 14 of the Constitution of India guarantees equality before the law
and equal protection of the law to all persons within the territory of India. The
article states that "the State shall not deny to any person equality
before the law or the equal protection of the laws within the
territory of India." This means that all individuals, regardless of their
caste, creed, religion, gender, or place of birth, are entitled to equal treatment
and protection under the law. The State cannot discriminate against any person
on the basis of these characteristics.
15. In the case of Union of India v. Tulsiram Patel, reported in (1985) 3
SCC 398, Hon'ble Supreme Court has held as under:-
"95. The principles of natural justice have thus come to be
recognized as being a part of the guarantee contained in
Article 14 because of the new and dynamic interpretation
given by this Court to the concept of equality which is the
subject-matter of that article. Shortly put, the syllogism
runs thus: violation of a rule of natural justice results
in arbitrariness which is the same as discrimination; where
discrimination is the result of State action, it is a
violation of Article 14: therefore, a violation of a
principle of natural justice by a State action is a
violation of Article 14. Article 14, however, is not the
sole repository of the principles of natural justice. What
it does is to guarantee that any law or State action
violating them will be struck down. ............"
16. In the instant case the petitioners, despite having graduate degree and
despite teaching general subjects and after granting the graduate scale for some
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time, the said benefit was withdrawn later. On the other hand, their counterparts in
the provincialized High/Higher Secondary Schools, have been granted the benefit
of graduate scale of pay pursuant to the notification dated 30.12.1993. Thus, there
appears to be not only discrimination, but also violation of their right to equality
before law and equal protection before law, as guaranteed under Article 14 of the
Constitution of India. They are entitled to equal treatment and protection under
the law.
Finding:-
17. Thus, having examined the impugned order dated 20.02.2023, passed by the
Secretary to the Government of Assam, Department of School Education wherein
the up-gradation of the petitioners to graduate scale of pay was declined, fails to
withstand the legal scrutiny. The impugned order, dated 20.02.2023, passed by
the Secretary to the Government of Assam, Department of School Education, thus
appears to be arbitrary and it violates Article 14 of the Constitution of India.
Reference in this context can be made to a decision of Hon'ble Supreme Court in
E.P. Royappa vs. State of Tamil Nadu, reported in (1974) 4 SCC
3, where the Supreme Court asserted that where there is arbitrariness, there is
a denial of equality reinforcing the concept that arbitrary actions by the state
violate Article 14.
18. Besides, they were not given an opportunity of being heard before
withdrawal of the said benefit. Thus, on this count also the principle of natural
justice was violated. It is to be noted here that the present petitioners were not
a party to the writ proceeding, being WP(C) No. 3475/2008.
19. To recapitulate, on the following grounds the impugned order dated
20.02.2023, failed to withstand the legal scrutiny:-
(i) The teachers in provincialized High/Higher Secondary Schools have
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been granted the benefit of graduate scale of pay, pursuant to the
Notification dated 30.12.1993. But, the petitioners, despite having
graduate degree and despite teaching general subjects in the
Madrassas, are denied the benefit and such denial discriminates
them on the ground of being teachers in Madrassa and as such,
the impugned order is arbitrary and it violates the right to equality
and equal treatment guaranteed by Article 14 of the Constitution
of India;
(ii) The order of this Court passed in W.P.(C) No. 3475/2008 reveals
that the Madrassa teachers are not covered under the Notification,
dated 30.12.1993. But, at the same time, it has to be kept in mind
that 74 numbers of Senior Madrassas, Title Madrassas and Arabic
Colleges were not provincialised. Those Madrassas were
provincialised only in the year 1995 by Assam Madrassa Education
(Provincialisation) Act, which came into force w.e.f. 15.08.1994;
(iii) The petitioners have been teaching general subjects not the
theological part;
(iv) The petitioners were earlier granted benefit of graduate scale of
pay, but subsequently declined the same on the basis of the order
of this Court;
(v) Their graduate scale of pay was withdrawn without issuing any
notice and without giving an opportunity of being heard to them.
Thus, the principle of natural justice has not been complied with.
It is well settled that the principle of natural justice and the audi
alterem pertem rule are part of Article 14 of the Constitution of
India; (see- Union of India vs. Tulshiram Patal reported in
Page No.# 20/21
1985(3) SCC 398;
(vi) Clause 3.2.20(b) of the Assam Pay Commission Report 2008, was
applicable to Senior Madrassas. The petitioners were appointed in
intermediate scale of pay and they subsequently acquired the
graduation during the course of employment in the year 1996 and
1997 respectively. The said clause provides that once the
employee acquires higher qualification the department should
place him a suitable position where adequate utilisation of the
increased expertise can be made. And since the present
petitioners had acquired higher qualification i.e. graduation, and
since their services being utilised as such, they are definitely
entitled to the said scale of pay;
(vii) The case of the present petitioners are factually distinguishable from
the petitioners in the WP(C) No.3475/2008, as the petitioners in
that case already being graduate, joined in intermediate scale, for
which the Court held that the petitioners in that case will not be
entitled to benefit of Clause 3.2.20.(b);
20. As held in the case of Tulshiram Patel (supra) if Article 14 is violated
by any law or state action, then the same has to be struck down. In that view of
the matter, the impugned order, dated 20.02.2023 has to be set aside and
quashed and accordingly the same stands set aside and quashed. By a
mandamus of this Court the respondent authorities are directed to extend the
benefit of graduate scale of pay to the present petitioners and this exercise has
to be carried out within a period of one month from the date of receipt of
certified copy of this judgment and order.
21 The petitioners shall obtain a certified copy of this judgment and order
Page No.# 21/21
and place the same before the respondent authorities, especially the respondent
No.2 within one week from today.
22. In terms of above, these writ petitions stand disposed of.
23. The parties have to bear their own costs.
JUDGE
Comparing Assistant
