Md. Sahidul Islam vs The State Of Assam And 7 Ors
2025 Latest Caselaw 4424 Gua

Gauhati High Court

Md. Sahidul Islam vs The State Of Assam And 7 Ors on 25 March, 2025

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GAHC010197762023




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

                        Case No. : WP(C)/5772/2023

         MD. SAHIDUL ISLAM
         S/O MD. JALALUDDIN, R/O VILL-MOIRDHAJ, P.O.-ROWMARI BILL, P.S.-
         DHING, DIST-NAGAON, ASSAM, PIN-782123

         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
         DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI-781006

         2:THE DIRECTOR
          ELEMENTARY EDUCATION
         ASSAM
          -CUM- CHAIRMAN
          STATE LEVEL SCRUTINY COMMITTEE
          KAHILIPARA, GUWAHATI-781019

         3:THE DISTRICT SCRUTINY COMMITTEE
          NAGAON
          REPRESENTED BY ITS CHAIRMAN
          DEPUTY COMMISSIONER
          NAGAON
          P.O. AND DIST-NAGAON
         ASSAM, PIN-782002

         4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
          NAGAON
          -CUM- THE MEMBER SECRETARY
          DISTRICT SCRUTINY COMMITTEE
          P.O. AND DIST- NAGAON
         ASSAM, PIN-782002

         5:THE BLOCK ELEMENTARY EDUCATION OFFICER
          BATADRABA
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             P.O.-BATADRABA
             DIST- NAGAON
             ASSAM, PIN-782122

            6:KARIMA KHATUN
            THE THEN HEADMISTRESS
             PACHIM MOIRADHAJ M.E. MADRASSA
            W/O AZIZUR RAHMAN
             R/O VILL-MOIRADHAJ
             P.O.-ROWMARI BILL
             P.S.-DHING
             DIST-NAGAON
            ASSAM, PIN-782123

            7:ALAL UDIN AHMED
             S/O MD. AKKEL ALI
             R/O VILL-MOIRADHAJ
             P.O.-ROWMARI BILL
             P.S.-DHING
             DIST-NAGAON
            ASSAM, PIN-782123

            8:SHALEMA BEGUM
            W/O RIASUDDIN
             R/O VILL-MOIRADHAJ
             P.O.-ROWMARI BILL
             P.S.-DHING
             DIST-NAGAON
            ASSAM, PIN-78212

Advocate for the Petitioner   : MR. A K HUSSAIN, MR A HAQUE,MR. B HUSSAIN

Advocate for the Respondent : SC, ELEM. EDU, MR. M A I HUSSAIN (R-7),MR F U
BARBHUIYA (R-8),MR. S H ZAMAN(R-8),MR N Z CHOUDHURY(R-8),MR. A R BHUYAN(R-
8),GA, ASSAM

                                    BEFORE
                        HONOURABLE MR. JUSTICE KARDAK ETE

                                       JUDGMENT

Date : 25.03.2025

Heard Mr. A.K. Hussain, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned standing counsel for the Elementary Education Department appearing for respondent Nos.1, 2, 4 & 5, Ms. D.D. Barman, learned State Counsel for the respondent No.3, Mr. MAI Page No.# 3/8

Hussain, learned counsel appearing for respondent No.7 as well as Mr. F.U. Barbhuiya, learned counsel for the respondent No.8. None appears for the respondent No.6, despite service of notice.

2. The challenge made in this writ petition is to the order dated 16.06.2023, passed by the Secretary to the Govt. of Assam, Department of School Education, whereby the claim of the petitioner for provincialisation of his service as Social Science Teacher has been rejected on the ground that the District Scrutiny Committee, Nagaon has not recommended the name of the petitioner for provincialisation of his service.

3. The case of the petitioner, shorn of unnecessary details, is that the petitioner was appointed as Assistant Teacher in 1210 No. Pachim Moiradhaj M.E. Madrassa on 05.01.2006. The petitioner claims to be a Social Science Teacher, whereas the respondent Nos.6, 7 & 8 are Language Teachers. Out of four teachers in respect of 1210 No. Pachim Moiradhaj M.E. Madrassa, it is contended that services of the respondent Nos.6, 7 & 8, who are Language Teachers have been provincialised along with one Mahananda Borah for Science & Mathematics subject and the case of the petitioner, although a Social Science Teacher, has been ignored.

4. It is contended that as per Section 3(1)(xi) of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (for short 'the Act of 2017'), provides that in case of Venture Upper Primary School, there shall be minimum 3 (three) teachers or tutors, at least 1 (one) teacher each for (a) Science and Mathematics,

(b) Social Studies and, (c) Languages. It is contended that non- provincialization of the services of the petitioner who is a Social Science Teacher, while provincializing the services of the respondent Nos.6, 7 & 8, is in violation of the aforesaid provision of the Act of 2017.

5. Aggrieved by such action of the respondent authorities i.e. non-provincialization of the services of the petitioner, he approached this Court by filing a writ petition being WP(C) No.1490/2021. This Court on 13.05.2022, disposed of the writ petition with a direction to the respondent authorities, while not interfering with the provincialisation of services of the Page No.# 4/8

respondent Nos.6, 7 & 8 and taking into account all the allegations and counter-allegations, particularly, taking into account that the petitioner should be given an opportunity to prove his case that he is a Social Science Teacher and this Court would not be in a position to deal with such factual determination that too in a proceeding under Article 226 of the Constitution, directed the petitioner to file an appeal under Section 14 of the Act of 2017, before the Secretary to the Government of Assam, Elementary Education Department.

6. This Court had recorded the submissions of learned standing counsel for the Elementary Education Department that as per the instruction, the respondent Nos.6, 7 & 8, whose services have been provincialised are all Language Teachers. This Court has also made an observation that on the perusal of the materials on record, except the certificate issued by the Headmaster in the year 2017, there is no any document on record to show that the petitioner is a Social Science Teacher. The document also shows that the petitioner has been teaching language subject.

7. On such appeal having been filed by the petitioner pursuant to the order of this Court, the Secretary to the Government of Assam, Department of School Education has disposed of the same and rejected the appeal of the petitioner, on the ground that the District Scrutiny Committee has not recommended the name of the petitioner for provincialization of his service. Therefore, the State Level Scrutiny Committee decided to reject the claim of the petitioner for provincialization of his service under the Act of 2017.

8. Mr. A.K. Hussain, learned counsel for the petitioner, while referring to the documents annexed to the writ petition, submits that the petitioner is a Social Science Teacher and the respondent Nos.6, 7 & 8, are Language Teachers. He submits that in the earlier round of Writ Proceedings, this Court has directed the respondent authorities to decide the matter, by producing an opportunity to the petitioner to place all the material facts including the issue raised in the petition to show that the petitioner is a Social Science Teacher and provincialization of the services of the respondent Nos.6, 7 & 8, are in violation of the provisions of the law.

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9. He submits that it has also directed that the Secretary to the Government of Assam, Department of School Education shall duly take into consideration that it is the mandate of the law that there has been a Social Science Teacher in the said school, in terms of the provisions of the Act of 2017. He submits that despite such observation and direction of this Court, the respondent authorities have failed to consider the relevant facts and mechanically rejected the claim of the petitioner on the irrelevant ground of non-recommendation by the District Scrutiny Committee.

10. Mr. A.K. Hussain, learned counsel, further submits that the record clearly reveals that the respondent Nos.6, 7 & 8 all are Language Teachers and the petitioner is admittedly a Social Science Teacher. Since the respondent authorities have illegally provincialised the services of the respondent Nos.6, 7 & 8 as Language Teachers, ignoring the case of the petitioner, who is a Social Science Teacher, in violation of the provisions of the Act of 2017, the petitioner is entitled to be appointed as Social Science Teacher. Therefore, he submits that the respondent authorities may be directed to consider provincialization of the service of the writ petitioner as a Social Science Teacher, as required under the provisions of the Act of 2017.

11. On the other hand, Mr. F.U. Barbhuiya, learned counsel for the respondent No.8 submits that the DISE Code record reveal that the petitioner is also a Language Teacher. He submits that admittedly the respondent No.8 is also a Language Teacher. In terms of the provisions of the Act of 2017, the service of the respondent No.8 has rightly been provincialised, as there is a requirement of appointment not less than one Language Teacher in a venture school.

12. Mr. MAI Hussain, learned counsel appearing for respondent No.7, while subscribing to the submission of Mr. F.U. Barbhuiya, learned counsel for the respondent No.8 submits that the respondent No.7 is also a Language Teacher, whose services has been provincialised as per terms of the Act of 2017.

13. Mr. A. Phukan, learned standing counsel for the Elementary Education Department submits that although he could not obtain the record as directed by this Court, as per the Page No.# 6/8

available record, it appears that no teacher has been appointed in the Social Science subject. The services of the respondent Nos.6, 7 & 8 have rightly been provincialised in Language Subject. However, he submits that the grounds of rejection vide the impugned order dated 16.06.2023, appears to be that the name of the petitioner has not been recommended by the District Scrutiny Committee, as the Act of 2017, mandates that for provincialization of service of Teachers/Tutors of the venture school is to be placed before the District Scrutiny Committee and on the recommendation of the District Scrutiny Committee, further scrutiny is required to be done by the State Level Scrutiny Committee. Therefore, he fairly submits that the matter requires to be reconsidered, as the real issue is whether the petitioner is a Social Science Teacher or Language Teacher who is entitled to be provincialised in the Social Science subject and whether the services of the respondent Nos.6, 7 & 8 have been provincialised only in the Language subject and as such, the matter may be remanded back to the respondent authorities.

14. I have considered the submissions of learned counsel for the parties and also perused the materials available on record.

15. The respondent authorities have failed to produce the record despite repeated directions for production having been considered the issue involved in the instant proceedings.

16. As noted above, this Court in the Writ Petition (supra), having considering the allegations and counter-allegations and also considering the claim of the petitioner as a Social Science Teacher, requires to be given an opportunity to place his case before the respondent authorities, directed the respondent authorities to consider the materials which would be placed by the petitioner and to take into account the mandate of law that there requires to be a Social Science Teacher, in a venture school in terms of the Act of 2017.

17. The materials available in the Writ Petition and the counter affidavit not only indicate that the petitioner is a Social Science Teacher but indicate that he is also a Language Teacher, to which this Court would not be a proper forum to adjudicate such contradictory documents Page No.# 7/8

and the claims and counter-claims. It is true that in a venture school, a minimum of 3 (three) teachers, each for (a) Science and Mathematics, (b) Social Studies and, (c) Languages, are to be appointed in terms of Section 3(1)(xi) of the Act of 2017, the respondent authorities had not been able to produce the record and also failed to indicate whether the services of the respondent Nos.6, 7 & 8 have been provincialised on each subject other than language or only in language subject. If the services of respondent Nos.6, 7 & 8 have been provincialised only in language subject then such provincialisation would run counter to the mandate of the law under the Act of 2017, as minimum 3 (three) teachers, each in three subjects, i.e. Science and Mathematics, Social Studies and Languages, are to be mandatorily provincialised in a venture school.

18. As noted above, it is not discernable from the available record as to whether the services of the respondent Nos.6, 7 & 8 have been provincialised, only as a Language Teacher or any other subject.

19. Perusal of the impugned order dated 16.06.2023 shows that consideration of the case of the petitioner, pursuant to the order of this Court dated 13.05.2022 and consequential rejection is only on the ground that the District Scrutiny Committee has not recommended the name of the petitioner for provincialisation of his service, therefore, the State Level Scrutiny Committee has decided to reject the claim of the petitioner. Although it is mentioned in the relevant provisions of the Act of 2017, bare perusal of the impugned order clearly shows that the respondent authority appears to have taken into account irrelevant consideration and without taking into relevant consideration. Thus, I am of the view that the respondent authorities have failed to consider the case of the petitioner in its proper perspective and as per the provisions of the Act of 2017 and as such, the impugned order is not sustainable.

20. In view of the above, I am of the view that the respondent authorities are deserved to be directed to reconsider the case of the petitioner, taking into account all the relevant facts including as to whether the petitioner is a Social Science Teacher and the services of the respondent Nos.6, 7 & 8 have been provincialised, only as a Language Teacher or in any Page No.# 8/8

other subjects.

21. Accordingly, the respondent authorities are directed to reconsider the case of the petitioner by taking into account the claim of the petitioner as Social Science Teacher and the services of the respondent Nos.6, 7 & 8 have been provincialised, only as a Language Teacher/Tutor or in any other subjects. In the event, if it is found that the petitioner is a Social Science Teacher and the services of the respondent Nos.6, 7 & 8 have been provincialised, only as a Language Teacher/Tutor, the petitioner be considered for appointment in the Social Science subject, as it would be as per the requirement of the provisions of the Act of 2017.

22. However, it is provided that if the respondent Nos.6, 7 & 8 have been provincialised, only as a Language Teachers/Tutors, the respondent authorities may consider retaining them, in view of the fact that the provincialisation of service of the Teacher/Tutor, as per Section 3(1)(xi) of the Act of 2017, is for a minimum of three teachers, providing a scope of provincialisation of services of more than three Teachers/Tutors, in a given venture school.

23. The respondent authorities are directed to complete the whole exercise, as indicated above, within a period of three (3) months from the date of receipt of a certified copy of this order. It is needless to say that the provincialisation of the services of the respondent Nos.6, 7 & 8, shall be subject to the outcome of the final decision, as directed herein above.

24 The writ petition stands disposed of in terms of the above observation and direction. No order as to costs.

JUDGE

Comparing Assistant