Gauhati High Court
Abu Khayer Sk vs The State Of Assam And 5 Ors on 9 May, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/9
GAHC010028262022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5702/2021
ABU KHAYER SK
S/O LT. FULBAR ALI SK.
VILL. BISANDAI PT-I
P.O. BISANDAI
P.S. GOLAKGANJ
DIST. DHUBRI
ASSAM
PIN 783334
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
ELEMENTARY EDUCATION DEPTT.
DISPUR
GUWAHATI 06
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM CUM CHAIRMAN OF STATE LEVEL SCRUTINY COMMITTEE
ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI 19
3:THE DEPUTY COMMISSIONER CUM CHAIRMAN OF DIST. SCRUTINY
COMMITTEE
(ELE. EDUCATION)
DHUBRI
P.O. AND P.S. DHUBRI
DIST. DHUBRI
ASSAM
Page No.# 2/9
PIN 783301
4:THE DIST. ELEMENTARY EDUCATION OFFICER
DHUBRI
P.O. DHUBRI
DIST. DHUBRI
ASSAM
PIN 783301
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
GOLAKGANJ
P.O. GOLAKGANJ
DIST. DHUBRI
ASSAM
PIN 783334
6:BIKRAMJIT ROY
ASSTT. TEACHER/TUTOR OF DAKHIN BISANDAI M.E. SCHOOL
S/O BIKASH CH. ROY
VILL. BISANDAI PT-II
P.O. BISANDI
P.S. GOLAKGANJ
DIST. DHUBRI
ASSAM
PIN 783334
------------
Advocate for : MR. M R KHANDAKAR
Advocate for : SC
ELEM. EDU appearing for THE STATE OF ASSAM AND 5 ORS
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT
1. Heard Mr. M.R. Khandakar, the learned counsel for the petitioner and Mr. U. Sharma, the learned counsel for the Respondent Nos.1, 2, 4 and 5. Also heard Mr. A.K. Dutta, the learned counsel appearing on behalf of Respondent No.6.
2. The instant writ petition has been filed challenging the recommendation of the District Scrutiny Committee, Dhubri, the select list dated 04.02.2021 insofar as the private respondent No.6 has been recommended and his service has Page No.# 3/9 been provincialized as a Language Tutor of Dakhin Bisandai M.E. School and for a writ of mandamus for directing the respondents to appoint and provincialize the service of the petitioner as Language Teacher/Tutor of Dakhin Bisandai M.E. School on the basis of seniority under the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (in short "The Act of 2017").
3. The case of the petitioner in brief is that he was appointed on 12.12.1985 as an Assistant Teacher in Dakhin Bisandai M.E. School by the School Managing Committee in the District of Dhubri, Assam and he joined the service on 01.01.1986 as Assistant Teacher in the said School. Thereafter, the petitioner was appointed on 27.10.1997 as Head Master of the said School by the School Managing Committee and till date the petitioner has been serving as the Head Master of the said School without any break. The further case of the petitioner is that the respondent No.6 was appointed on 28.03.2010 as an Assistant Teacher in Dakhin Bisandai M.E. School by the School Managing Committee and he joined his service on 01.04.2010. At this stage, before further proceeding on the adjudication of the disputes, it would be relevant to refer to Section 2(za) of the Act of 2017 which defines "Venture M.E. School". As the said definition is relevant for the purpose of instant dispute, the said definition is reproduced herein below:
"2(za). Venture ME School" including "Venture ME Madrassa" means an Upper-Primary School imparting education from class VI up to class VIII and established by the people of the locality prior to 1.1.2006 which has received recognition from the competent authority on or before 01.01.2006 and captured in the DISE Code up to 2009-10 and whereof the services of the teachers have not been provincialised under any Act enacted by the State legislature so far:
Page No.# 4/9 Provided that the DISE Code shall have to be issued on or before 2009-10 and DISE Code issued thereafter shall not be considered for the purpose of provincialisation of services of any employee of the institution;"
4. A reading of the said definition would show that the "Venture M.E. School"
including "Venture M.E. Madrassa" means an Upper Primary School imparting education from Class VI up to Class VIII and established by the people of the locality prior to 01.01.2006 which has received recognition from the competent authority on or before 01.01.2006 and captured in the DISE Code up to 2009-10 and whereof the services of the teachers have not been provincialized under any Act enacted by the State legislature so far. The proviso to the said definition stipulates that the DISE Code shall have to be issued on or before 2009-10 and the DISE Code issued thereafter shall not be considered for the purpose of provincialisation of services of any employee of the institution. The proviso therefore, specifically limits the provincialization of service of any employee of any institution in respect to Venture M.E. School which pertains to the DISE Code issued on or before 2009-10 and any DISE Code issued thereafter cannot be considered for the purpose of provincialisation of services of any employee of the said institution.
5. In the backdrop of the above, it is relevant to take note that the petitioner in his writ petition had further stated that Dakhin Bisandai M.E. School has a DISE Code for the year 2009-10 and the School Code Number is 18020102 and the petitioner's name appeared in the DISE data of the said School for the year 2009-10 but the name of the private respondent No.6 had not appeared in the DISE Code of 2009-10.
6. The petitioner's further case is that the District Scrutiny Committee, Dhubri Page No.# 5/9 in 2017 had verified and scrutinized the relevant service records of the petitioner alongwith respondent No.6 and others for the purpose of provincialization of their services as tutors of the said School under the Act of 2007 but the District Scrutiny Committee, Dhubri had illegally recommended the name of the private respondent No.6 at Serial No.3 against language subjects for provincialization of his service under the Act of 2017 without considering the seniority position of the petitioner being a Language Teacher of the said School. The recommendation so enclosed as Annexure-5 to the writ petition further shows that the District Scrutiny Committee, Dhubri had also considered and recommended the name of the petitioner at Serial No.4 against language subjects for the status of the 1st post but shown not eligible due to non- availability of the required enrollment and recommended the name of private Respondent No.6 in place of the petitioner against the language subjects for the status of 3rd post showing eligible. In doing so the District Scrutiny Committee did not consider the seniority position of the petitioner. Thereupon vide the select list dated 04.02.2021, the respondents appointed and provincialized the services of (1) Samir Ch. Karmakar against Social Science subject, (2) Saifur Ali Sk. Against Mathematics & Science subject and (3) Respondent No.6 against Language Subjects vide Serial No.104, 105 and 106 respectively as Tutors of Dakhin Bisandai M.E. School under the Act of 2017.
7. Further to that, the respondent No.4 on 09.02.2021 had prepared a list of Tutors/Teachers who had been left out from the benefit of provincialisation of their services under the Act of 2017, under the Block Elementary Education Officer, Golakganj and submitted the same to the Respondent No.2 on 09.02.2021 for provincialisation of their services including the services of petitioner. But till date, the service of the petitioner has not been provincialised Page No.# 6/9 by the respondents despite of letter and the list dated 09.02.2021. The petitioner thereupon submitted a detail representation on 23.02.2021 to the Respondent No.1 praying for provincialisation of his service as Tutor/Teacher of Dakhin Bisandai M.E. School under the Act of 2017. As nothing was done, the petitioner thereafter had submitted an appeal petition dated 28.09.2021 under Section 14 of the Act of 2017, to the Respondent No. 2 through registered post but the respondent authorities have not taken any action on the said appeal also.
8. Being aggrieved by the said actions, the petitioner is before this Court under Article 226 of the Constitution of India. This Court vide an order dated 29.10.2021 issued notice and in the interim order directed that the effect of provincialization in respect to the respondent No.6 may not be given until further orders.
9. Pursuant thereto, the respondent No.6 had filed the Interlocutory Application seeking vacation/modification/alteration of the order dated 29.10.2021. The said application was registered and numbered as I.A (Civil) No.643/2022.
10. The said Interlocutory Application came up in the stay vacating column and taking into consideration that any decision in the said matter would have the effect of deciding the writ petition on merits, the matter was taken for final disposal.
11. I have heard the learned counsel for the parties and perused the materials on record. From the definition of the term "Venture M.E. School" as contained in Section 2(za) and more particularly the proviso, it would show that the DISE Code shall have to be issued on or before 2009-10 and DISE Code issued thereafter shall not be considered for the purpose of provincialization of services Page No.# 7/9 of any employees of the institution. In the instant case for the year 2009-10, Dakhin Bisandai M.E. School have been duly captured in the DISE Code of 2009- 10 and the petitioner's name was included in the said DISE Code. However, the respondent No.6's name was not included in the said DISE Code of 2009-10 and as such on the basis of the proviso to Section 2(za), the question of considering the case of the respondent No.6 for the purpose of provincialization did not arise at all.
12. This Court further would like to deal as regards the entitlement of the petitioner vis-à-vis the respondent No.6. It is an admitted fact even from materials which have been placed by the Respondent No.6 that the petitioner joined his service on 01.01.1986 and taught English Language whereas the Respondent No.6 joined on 01.04.2010 and taught Assamese Language. In terms with Section 19 of the Right of Children to Free and Compulsory Education Act, 2009, no school shall be established, or recognized, under Section 18 unless it fulfils the norms and standards specified in the Schedule. A perusal of the said Schedule to the said Act of 2009 would show that for Class VI to Class VIII, there should be at least one teacher per class so that there shall be at least 1 (one) teacher each for (i) Science and Mathematics, (ii) Social Studies and (iii) Languages. From the definition of Section 2(za) which is Venture M.E. School and Section 2(zc) which defines Venture Upper Primary School, these schools impart education from Class VI to Class VIII and would come within the ambit of 1(b) of the Schedule to the Act of 2009.
13. Section 3(1)(xi) of the Act of 2017, stipulates 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. The proviso to Section 3(1)(xi) stipulates that for additional Page No.# 8/9 post, which shall be considered in accordance with the norms and standards stipulated in the Schedule under Sections 19 and 25 of the Act of 2009. At this stage, a further look of Serial No.1(b) of the Schedule to the Act of 2009, it would transpire from Clause (3) of Serial No.1(b) that when the number of children for admission is above 100, there shall be a full time Head Teacher as well as part time instructors for (A) Art Education; (B) Health and Physical Education and (C) Work Education.
14. This Court is therefore posed with the question whether the Petitioner who is otherwise a Senior Language Teacher can be denied the benefit on the ground that the Petitioner is the Head Master of the School as there is no requirement of a Head Teacher on account of the enrollment being less than 100 in the School in question. This Court is of the opinion that the Petitioner is first a Language Teacher and by virtue of his seniority his services ought to have been provincialized. Being the Head Master of the School, the same would not disentitle the petitioner for his services from being provincialized. This opinion is based on a perusal of the provisions of the Act of 2017 as there is no embargo in a Head Master who is also a teacher and eligible to be provincialized.
15. Therefore, taking into consideration that the petitioner is the senior Language Teacher, the action of not recommending the petitioner by the District Scrutiny Committee which was approved by the State Level Scrutiny Committee on the ground that the petitioner was Head Master and as such not eligible for provincialization due to non-availability of required enrollment is on the face of illegal and arbitrary. Consequently, this Court therefore, interferes with the order of provincialization dated 05.02.2021 made in favour of the Respondent No.6 thereby setting aside the same and further directs the respondent authorities to consider the case of the petitioner for provincialization as a Language Teacher in Page No.# 9/9 Dakhin Bisandai M.E. School. The said exercise may be completed at the earliest and not later than 45 days from the date of certified copy of this order is served upon the Respondent No.2.
16. With above observations, the instant writ petition stands disposed of. No costs.
JUDGE Comparing Assistant