Page No.# 1/7 vs Marjan Begum
2025 Latest Caselaw 8165 Gua

Gauhati High Court

Page No.# 1/7 vs Marjan Begum on 30 October, 2025

Author: Nelson Sailo

Bench: Nelson Sailo

                                                                           Page No.# 1/7

GAHC010078742024




                                                                    2025:GAU-AS:14573

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

                                Case No. : Review.Pet./90/2024

            THE DIRECTOR OF SECONDARY EDUCATION ASSAM
            KAHILIPARA, GUWAHATI 781019


            VERSUS
            MARJAN BEGUM
            WORKING AS ASSTT. TEACHER (SCIENCE) IN THE JUNGLE BLOCK HIGH
            SCHOOL, D/O LATE MOTOSIN ALI TALUKDAR,
            W/O SHAZUDDIN LASKAR, RESIDENT OF VILLAGE DOBOKA NALA, PO
            JUNGLE BLOCK, PS DOBOKA, DIST NAGAON, ASSAM 782428



Advocate for the Petitioner   : MR B KAUSHIK, MS K DAS

Advocate for the Respondent : MD. S ALOM (R-1), MR. R. KARIM (R-1),MR. I H LASKAR (R-
1),MR. M S ALAM (R-1),MR. P K DEKA (R-1)




                                   BEFORE
                       HONOURABLE MR. JUSTICE NELSON SAILO

                                          ORDER

Date : 30.10.2025

Heard Mr. B. Kaushik, learned counsel for the review petitioner and Mr. P. K. Deka, learned counsel for the sole respondent/writ petitioner.

[2.] This review petition has been preferred seeking review of the order dated 28.10.2021 passed by this Court in WP(C)/462/2020. Although the review Page No.# 2/7

petitioner has raised 6(six) grounds for review of the order but the main ground for review is found in ground No. B and ground No. F. Ground B and F are abstracted hereunder for ready perusal:

"B.For that, it being a settled position of law, once after declaration of a statute as Unconstitutional by a court of law, it is non est for all purpose and thus said order of this Hon'ble court directing the Review Petitioner by holding that as it is a case of deemed provincialisation u/s 4(1) of the Act of 2011 and thereby directing to grant the benefits of Provincialisation from 01.01.2013 as provided under the Act of 2011, apparently there is an error on the face of record and thus the same may be pleased to be reviewed.

F. For that, the Hon'ble court referred to the recommendation of DSC recommending the Respondent for Provincialisation as Assistant Teacher(Science) in Jungle Block High School and thereby directed the Director of Secondary Education, Assam to bring the recommendation of DSLC made in favour of Marjan Begum to its logical end by passing an appropriate order. Whereas there was no DSC minutes available in the record but from the order dated 30-07-2016 passed by the Inspector of Schools, Nagaon District Circle it appears that the DSC resolved only that the Provincialisation of services shall be on the basis of seniority only in the respective category in the concerned school irrespective of any subject combination and accordingly directed the Inspector of Schools to pass a speaking order and thereafter a Speaking Order (Annexure-7 of writ petition) is passed and thus there is no recommendation of DSC on record as per order and thus there is an error apparent on the face of record, which warrants review of the order the dated 28.10.2021 passed in WP(C) No 462/2020."

[3.] It may be seen that this Court accepting the contention of the writ petitioner that the earlier writ petition i.e., WP(C)/5330/2012 filed by Md. Ahmed Ali Talukdar was disposed of vide order dated 23.11.2015 directing the District Level Scrutiny Committee (DLSC) to examine the claim of the rival Page No.# 3/7

parties and to reach a conclusion was acted upon by concluding that the instant respondent was senior to Md. Ahmed Ali Talukdar and entitled for provincialisation, directed that the same be brought to its logical conclusion vide the order sought to be reviewed dated 28.10.2021. Further, it was directed that as it was a case of deemed provincialisation under Section 4 (1) of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (Act of 2011), the instant respondent would be entitled to be given the benefit of provincialisation from 01.01.2013 subject to fulfillment of the requirement of Section 3 of the Act of 2011.

[4.] Now, the review petitioner has sought review of the order on the ground that there was no recommendation made in favour of the petitioner in the proceeding of the DLSC meeting minutes dated 11.02.2016. In support of this stand, Mr. B. Kaushik, learned counsel for the review petitioner has produced the relevant records of the Department and he submits that there was no such recommendation made by the DLSC when it met on 11.02.2016. He also submits that the composition of the DLSC is not in terms of Provisions of the Act of 2011 as well and that unless there is a specific recommendation made by the constituted DLSC/DSC and the recommendation submitted to the Government through the Director of the Department, no provincialisation of service can be made. However, in the instant case as there was no recommendation as per the above requirement, the claim made by the petitioner is only based on wrong presumption, the order should be accordingly reviewed.

[5.] Mr. B. Kaushik, learned counsel for the review petitioner further submits that since the Act of 2011 has been struck down by this Court vide judgment and order dated 23.09.2016 in WP(C)/3190/2012, the benefit of deemed provincialisation w.e.f. 01.01.2013 cannot be given to the respondent/writ Page No.# 4/7

petitioner. Therefore, even on this ground, the order should be reviewed.

[6.] The learned counsel also submits that although the order was passed on 28.10.2021, the review petition could not be filed immediately and the explanation for such delay is stated in paragraph No.10 and 11 of the review petition. Under the facts and circumstances, the learned counsel for the review petitioner submits that the review petition may be allowed as prayed for.

[7.] Per-contra, Mr. P. K. Deka, learned counsel for the respondent submits that the review petition is not maintainable on grounds of delay and also in view of the principles governing the ground for filing a review petition. He submits that the explanation tendered by the review petitioner that there were certain circumstances due to which the review petition could not be filed on time is only an afterthought. He submits that the respondent/writ petitioner due to non- compliance of the Court's Order had filed a contempt petition and the review petitioner therefore faced with the contempt petition decided to file the review petition. The review petition should therefore be dismissed on grounds of delay and laches.

[8.] Mr. P. K. Deka, learned counsel for the respondent further submits that in order to make out a case for review there has to be a mistake or error apparent on the face of the record. In other words an error which despite due diligence was not brought to the notice of the Court at the time of passing the order. In the instant case, from the grounds taken by the review petitioner it clearly appears that there is no error apparent on the face of the record and the grounds taken for review cannot be considered to be grounds for reviewing the order passed by this Court in the writ petition. Therefore even on this ground, the review petition should be dismissed.

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[9.] Mr. P. K. Deka, learned counsel for the respondent further submits that the Inspector of Schools, Nagaon District Circle , Nagaon had issued an order dated 30.07.2016, wherein, it was clearly indicated that he was authorized to pass a Speaking Order pursuant to the meeting of the DLSC on 11.02.2016. It was clearly indicated that the respondent/writ petitioner was found to be senior to one Md. Ahmed Ali Talukdar and therefore, she and Abdul Khaleque were recommended for provincialisation. Despite the same, since no step was taken in furtherance of the recommendation, the respondent/writ petitioner was compelled to approach this Court through WP(C)/462/2020. The writ petition was accordingly disposed of on 28.10.2021 with specific direction to the respondent authorities concerned and therefore, it is only incumbent upon the part of the authorities concerned to comply with the same. Under the facts and circumstances the learned counsel submits that no ground for review is made to the order dated 28.10.2021 and the instant review petition should be dismissed.

[10.] I have heard the submissions made by the learned counsel for the rival parties and perused the materials available on record including the record produced by Mr. B. Kaushik, learned counsel for the review petitioner. Considering the explanation given in paragraph Nos. 10 and 11, I am not inclined to reject the review petition on grounds of delay. Although Mr. B. Kaushik, learned counsel for the review petitioner referring to the ground No. F of the review petition submits that no recommendation has been made by DLSC but however, on perusal of the records, it is seen that the DLSC which met on 11.02.2016, after taking into account the materials available came to the conclusion that the services of Marjan Begum and Abdul Khaleque be considered for provincialisation and accordingly, the Inspector of Schools, Nagaon District Circle was directed to issue a speaking order on the basis of the Page No.# 6/7

proceeding of the meeting of the DLSC and in compliance of the Court's direction passed in WP(C)/5330/2012. Therefore ground taken cannot be accepted and is rejected.

[11.] Although an attempt has been made by the learned counsel that the very composition of the DLSC is defective and the so called recommendation cannot be accepted as a recommendation to take up the matter for further process but the fact remains that the same is not a ground taken for review. No material has been placed before this Court that the authority concerned has found the composition of the District Level Scrutiny Committee to be defective. Therefore, review sought for on this ground as well cannot be accepted and accordingly the same is rejected.

[12.] With regard to the ground taken by the review petitioner that the Act of 2011 having been struck down by this Court, and therefore, the same is not justified, it may be seen that striking down of the Act of 2011 preceded passing of the order dated 28.10.2021 sought to be reviewed and therefore, having regard to the decision of the Apex Court in this regard as relied upon by the learned counsel for the petitioner i.e., State of Manipur and Ors Vs. Surjakumar Okram and Ors. reported in 2022 SCC OnLine SC 130, the same will have to be recalled. The Apex Court in the given facts and circumstances of that case held that a statute which is made by a competent legislature is valid till its declared unconstitutional by a Court of law. Further after declaration of statute as unconstitutional by Court of law it will be non est for all purpose. The aforesaid principle squarely applies to the instant case. Therefore insofar as the direction made for giving the petitioner the benefit of provincialisation w.e.f 01.01.2013 in terms of the Act 2011, the same requires to be recalled as it appears to be an order passed per incuriam.

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[13.] At this stage, the learned counsel for the respondent/writ petitioner submits that in a case of similar nature, this Court had given appropriate relief to the petitioner under the Act of 2011. The same was put to challenge before the Apex Court and the Apex Court upheld the same. However, as already stated, this Court is dealing with a review petition and having regard to the limited jurisdiction for entertaining a review petition it will not be permissible to adjudicate such a claim in a review petition. Accordingly, the matter is left open for appropriate decision by the Writ Court as permissible in law. The writ petition i.e., WP(C)/462/2020 is therefore revived for consideration on this limited point.

[14.] With the above observations and direction, the review petition stands disposed of.

JUDGE

Comparing Assistant