Gauhati High Court
Page No.# 1/26 vs The State Of Assam And Anr on 6 March, 2025
Page No.# 1/26
GAHC010146032022
2025:GAU-AS:2384
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4894/2022
RANJIT KUMAR BORA AND 86 ORS.
S/O-LATE JIBAN CH. BORA,
R/O- WARD NO-2, HOWRAGHAT,
P.O AND P.S- HOWRAGHAT,
DIST- KARBI ANGLONG, ASSAM
2: SRI MAHENDRA BASUMATARY
SON OF SRI HIMA BASUMATARY
RESIDENT OF AMONIGAON
P.O.-AMONI
P.S.-HOWRAGHAT
DIST-KARBI ANGLONG
ASSAM.
3: SMT. GEETA BASUMATARY
DAUGHTER OF LATE JAPAN BASUMATARY
RESIDENT OF VILLAGE GORAIMARI
P.O.-LANGHINTINIALI
P.S.-DOKMOKA
DIST-KARBIANGLONG
ASSAM.
4: SRI NIREN RAVA
SON OF LATE BHABENRAVA
RESIDENT OF BAHONIGAON
P.O.-LORINTHEPI
P.S.-HOWRAGHAT
DIST-KARBIANGLONG
ASSAM.
5: SRI SIVA KUMAR GOWALA
SON OF LATE NAGINA GOWALA
RESIDENT OF MOLESHGAON
P.O.-SILPUTA TINIALI
Page No.# 2/26
P.S.-BAKALIAGHAT
DIST-KARBIANGLONG
ASSAM.
6: SRI NIRANJAN CHAUHAN
SON OF LATE RAMLAL CHAUHAN
RESIDENT OF VILLAGE SAMPATHAR
P.O.-SAMPATHAR
P.S.-BAKALIAGHAT
DIST-KARBIANGLONG
ASSAM.
7: SMT. GHANAMAI LASKAR
WIFE OF KAMSING BEY
RESIDENT OF KAKIJANDEKAGAON
P.O.-SILPUT TINALIA
P.S.-BAKALIAGHAT
DIST-KARBI ANGLONG
ASSAM.
8: SMT. JYOTI SAIKIA
WIFE OF SRI KAMAL CH. SAIKIA
RESIDENT OF HAWAIPURCHARIALI
P.O.-HAWAIPUR
P.S.-KHERONI
DIST-KARBI ANGLONG
ASSAM.
9: SMT. RINA BORAH
DAUGHTER OF KAMAL BORAH
RESIDENT OF VILLAGE NAPAM BOKAJAN
P.O.-NAPAM BOKAJAN
P.S.-GOURI SAGAR
DIST-SIVASAGAR
ASSAM
10: SMT. RUPALIMA BARUAH
WIFE OF JATIN BARUAH
RESIDENT OF VILLAGE NAPAMBOKAJAN
P.O.-NAPAMBOKAJAN
P.S.-GAURISAGAR
DIST-SIVASAGAR
ASSAM.
Page No.# 3/26
11: SRI SAGAR PATHAK
SON OF NAGEN PATHAK
RESIDENT OF VILLAGE-TENGACHAPORI
P.O.-FOLLANGARI
DIST-GOLAGHAT
ASSAM.
12: SRI NAGEN SARMA
SON OF PODMAKANTA SARMA
RESIDENT OF VILLAGE-CHANPUR
P.O.-DA-PATHER
P.S.-GOLAGHAT
DIST-GOLAGHAT
ASSAM.
13: SRI ARUN KURMI
SON OF LATE ATUA KURMI
RESIDENT OF VILLAGE-KAMALPUR
P.O.-TELISHAL
DIST-GOLAGHAT
ASSAM.
14: SRI DILIP DUTTA
SON OF LATE PHONIDHAR DUTTA
RESIDENT OF AMONIGAON
P.O.-AMONI
P.S.-HOWRAGHAT
DIST-KARBIANGLONG
ASSAM.
15: SRI BRITEN BORA
SON OF LATE THANESWAR BORA
RESIDENT OF MATIKHULA
P.O.-RAIDANGJURI
P.S.-BORHOLLA
DIST-JORHAT
ASSAM.
16: SRI REBAT CHANDRA MORANG
SON OF LATE TAPARAM MORANG
RESIDENT OF VILLAGE-DIKHOWMUKHIA
P.O.-KHANAJAN
P.S.-NORTH LAKHIMPUR
DIST-LAKHIMPUR
ASSAM.
Page No.# 4/26
17: SRI PREM NARAYAN UPADHAYA
SON OF LATE DHANA PATI UPADHAYA
RESIDENT OF VILLAGE-RAJGARHKACHARI
P.O.-RAMPUR DEURI
DIST-KARBIANGLONG
ASSAM.
18: SRI HIREN LAHON
SON OF LATE MINARAM LAHON
RESIDENT OF LAHONGAON
P.O.-CHINTAMONI
P.S.-BHOGAMUKH
DIST-JORHAT
ASSAM.
19: SRI ASHOK DUTTA
SON OF ANDARAM DUTTA
RESIDENT OF VILLAGE-SUNDARPUKHURI
P.O.-BAULIMOIDAM
DIST-SIVASAGAR
ASSAM.
20: SRI MANUK KR. PHUKAN
SON OF PRADIP PHUKAN
RESIDENT OF VILLAGE-BELENGBARI
P.O.-JEUGA PUKHURI
DIST-SIVASAGAR
ASSAM.
21: SRI PABITRA GOGOI
SON OF JAGAT GOGOI
RESIDENT OF VILLAGE NO.1LAHON CHARAIHAJIA
P.O.-SINGIBILL
DIST-SIVASAGAR
ASSAM.
22: NAGAN KALITA
SON OF LATE PUNARAM KALITA
RESIDENT OF VILLAGE-RUPAHIMUKH
P.S.-GAURISAGAR
Page No.# 5/26
DIST-SIVSAGAR
ASSAM.
23: SRI SAILEN GOGOI
SON OF LATE NITYANANDA GOGOI
RESIDENT OF ANNAPURNA GAON
P.O.-MUKTINAGAR
P.S.-BORHOLLA
DIST-JORHAT
ASSAM.
24: SRI CHANDAN BORA
SON OF PRIYARAM BORA
RESIDENT OF VILLAGE NO.2
KAKADUNGA HABI GAON 11 NO. BLOCK
P.O.-URANGIAL
P.S.-BORHOLLA
DIST-JORHAT
ASSAM.
25: SRI PRANAB JYOTI BORA
SON OF LATE SAWBESWAR BORA
RESIDENT OF BAMUNGAON
P.O.-PULIKAITONI
P.S.-BORHOLLA
DIST-JORHAT
ASSAM.
26: SRI PABAN CHANDRA BORA
SON OF LATE MOHESWAR BORA
RESIDENT OF TAPAN NAGAR
P.O.-GOLAGHAT
P.S.-GOLAGHAT
DIST-GOLAGHAT
ASSAM.
27: SMT. PORESHMONI DAS
WIFE OF KAMALA DAS
RESIDENT OF BIJOY NAGAR
P.O.-URANGIAL
P.S.-BORHOLLA
DIST-JORHAT
ASSAM.
Page No.# 6/26
28: SRI PRODIP PHUKAN
SON OF LATE BILASH PHUKAN
RESIDENT OF KONWARPURIA MORAN GAON
P.O.-GOHAINBARI
P.S.-MARIANI
DIST-JORHAT
ASSAM.
29: SMT. RAHENA BEGUM
WIFE OF PRODIP PHUKAN
RESIDENT OF KONWAR PURIA MORAN GAON
P.O.-GOHAINBARI
P.S.-MARIANI
DIST-JORHAT
ASSAM.
30: SMT. LAKSYAHIRA LAHON
DAUGHTER OF LATE PRIYANATH LAHON
RESIDENT OF BOLIMORA GAON
P.O.-NAKACHARI
DIST-JORHAT
ASSAM.
31: SMT. JOYA DEURI
WIFE OF BICHITRA DEURI
RESIDENT OF UPPER DEURIGAON
P.O.-NAHATIA
P.S.-PULIBOR
DIST-JORHAT
ASSAM.
32: SMT. KRISHNALI KALITA
WIFE OF PRODUP BHUYAN
RESIDENT OF MELENG LAKHIPUR GAON
P.O.-MELENG
P.S.-MARIANI
DIST-JORHAT
ASSAM.
33: MISS MIRA DUTTA KALITA
WIFE OF NAKUL KALITA
RESIDENT OF GARMUR DULIA GAON
P.O.-JORHAT ENGINEERING COLLEGE
Page No.# 7/26
P.S.-JORHAT
DIST-JORHAT
ASSAM.
34: SMT. RAJASHREE DUTTA SAIKIA
WIFE OF BUBUL SAIKIA
RESIDENT OF TARAJAN TRP ROAD
P.O.-AND P.S-JORHAT
DIST-JORHAT
ASSAM.
35: SRI NARAYAN CHANDRA BORA
SON OF GOBIN CHANDRA BORA
RESIDENT OF UJANI BHAKAT PAMUA GAON
P.O.-SATRIA
P.S.-JORHAT
DIST-JORHAT
ASSAM.
36: SRI DHRUBA JYOTI BORAH
SON OF LATE THAGIRAM BORAH
RESIDENT OF BORBHETA MAJ GAON
P.O.-CINAMORA
P.S.-JORHAT
DIST-JORHAT
ASSAM.
37: SMT. BOBITA BORDOLOI
WIFE OF BHARAT DUTTA
RESIDENT OF POKAMURA SONARI GAON
P.O.-POKAMURA
DIST-JORHAT
ASSAM.
38: SMT. ANAMIKA BEZ
WIFE OF JITUL KOCH.
RESIDENT OF SEWJIPAR
P.O.-KALAKHUWA
DIST-JORHAT
ASSAM.
39: SMT. SEWALI CHUTIA
WIFE OF RIDIP BORGOHAIN
RESIDENT OF WARD NO.6 KACHARI LINE
Page No.# 8/26
AMGURI
P.O. AND P.S.-AMGURI
DIST-SIVASAGAR
ASSAM.
40: SMT. BINUMAI KALITA
WIFE OF BABUL KALITA
RESIDENT OF RUPAHIMUKH
P.O.-RUPAHIMUKH
DIST-SIVASAGAR
ASSAM.
41: SRI BHUPEN BARUAH
SON OF PHUKAN BARUAH
RESIDENT OF CHARIKURIAGAON
P.O.-MILI TINIALI
DIST-MAJULI
ASSAM.
42: SRI BANIJYA DOLEY
SON OF TULSHIRAM DOLEY
RESIDENT OF JENGRAI GAON
P.O.-JENGRAI MUKH
P.S.-JENGRAI MUKH
DIST-MAJULI
ASSAM.
43: SRI CHAKAR PANGING
SON OF TULSHI PANGING
RESIDENT OF VILLAGE LACHON GAON
P.O.-SONOWAL KACHARI
DIST-MAJULI
ASSAM.
44: SRI MANAYARAM DOLEY
SON OF DABIRAM DOLEY
RESIDENT OF JENGRAI GAON
P.O.-JENGRAI MUKH
DIST-MAJULI
ASSAM.
45: SRI SUNESWAR KONWAR
Page No.# 9/26
SON OF SANTIRAM KNOWAR
RESIDENT OF PUWA SAIKIA
P.O.-NARUATHAN
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM.
46: SRI MILAN KHANIKAR
SON OF KHETRADHAR KHANIKAR
RESIDENT OF CHAKALADOLANI
P.O.-NARUATHAN
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM.
47: SMT. JAYAMAI BURAGOHAIN
WIFE OF AJIT CHANGMAI
RESIDENT OF GOWAL GAON
P.O.-GOWAL CHAPARI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
48: SRI NUMAL CH. PAMEY
SON OF BORSING PAMEY
RESIDENT OF CHIMENTENGABARI
P.O.-CHIMENMUKH
P.S.-SILAPATHER
DIST-DHEMAJI
ASSAM
49: SRI LAKHINATH GOGOI
SON OF RABINATH GOGOI
RESIDENT OF MAJGAON
P.O.-GUTUNG
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
50: SRI DINANATH NARAH
SON OF ANIL NARAH
RESIDENT OF ADIKALIA
P.O.-JAMUGURI PANCHALI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
Page No.# 10/26
51: SRI GOPAL DEY
SON OF JATIN KR. DEY
RESIDENT OF LONGPATIA
P.O.-LONGPATIA
DIST-CHARAIDEO
ASSAM
52: SRI LABHIRAM SAIKIA
SON OF DHAMESWARSAIKIA
RESIDENT OF NO.2 BHARALI CHUCK
P.O.-DHEMAJI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
53: SRI KUSHAL PHUKAN
SON OF LATE HARENDA PHUKAN
RESIDENT OF BORAJUHA
P.O.-KALAKATA
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
54: SRI NABIN HAZARIKA
SON OF LATE MANAI HAZARIKA
RESIDENT OF MADERGURI KALITA GAON
P.O.-JAMUGURI PANCHALI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
55: SRI NABA KUMAR MILI
SON OF BHIMBAR MILI
RESIDENT OF LAIPULIA
P.O.-JAMUGURI PANCHALI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM.
56: SRI NABA JYOIT GOGOI
SON OF LATE BHURAM GOGOI
RESIDENT OF KAMARGAON
Page No.# 11/26
P.O.-MATIKHULLA
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
57: SMT. NIRUPAMA MAHANTA
DAUGHTER OF JUGENDRA NATH MAHANTA
RESIDENT OF WARD-A
CHABUATOWAN
P.O. AND P.S.-CHABUA
DIST-DIBRUGARH
ASSAM.
58: SRI DEBAJIT HAZARIKA
SON OF LATE KAMESWAR HAZARIKA
RESIDENT OF KACHAJULI
P.O.-GABHARUTUNIJAN
P.S.-LALUK
DIST-LAKHIMPUR
ASSAM
59: SRI SANJAY KUMAR CHETRY
SON OF NARAYAN PD. CHETRY
RESIDENT OF 1 NO. BAGIBIL
P.O.-RAMPUR DEURI
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
60: SRI EVRAJ CHETRY
SON OF MONHAN RAJ CHETRY
RESIDENT OF BHITORIPAM
P.O.-SAGARPUR
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
61: SRI PRASANTA DUTTA
SON OF PADMA DUTTA
RESIDENT OF JORITUP
P.O.-NORTH LAKHIMPUR
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
Page No.# 12/26
ASSAM
62: SRI DIMBESWAR BORUAH
SON OF LATE PUNYA BORUAH
RESIDENT OF MALABARI (DHAKUAKHANA)
P.O.-MOHEMERI
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
63: SRI ARUP CHETIA
SON OF LATE RUPESWAR CHETIA
RESIDENT OF BEBEJIA MAJ GAON
P.O.-MORNOI BEBEJIA
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
64: SRI SARAN SING PAGAG
SON OF LATE MEGH NATH PAGAG
RESIDENT OF ALIMUR BALI GAON
P.O.-MORNOIBEBEJIA
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
65: SRI KHIRESWAR CHUTIA
SON OF LATE TANKESWAR CHUTIA
RESIDENT OF KARANGA
P.O.-PATRICHUK
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
66: SRI MON MOHAN CHUTIA
SON OF LATE FULARAM CHUTIA
RESIDENT OF CHARIKARIYA
P.O.-KEKURI
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
67: SRI JIBAN SAIKIA
Page No.# 13/26
SON OF LATE ANANTA SAIKIA
RESIDENT OF MORNOI GAON
P.O.-MORNOI BEBEJIA
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
68: SRI DUSMANTA KUMBANG
SON OF TULARAM KUMBANG
RESIDENT OF LAMUCHUK SARIYANI
P.O.-BILMUKH
DIST-LAKHIMPUR
ASSAM
69: SRI TAPAN MORANG
SON OF SUNDAR MORANG
RESIDENT OF VILLAGE- POHUMARA
P.O.-POHUMARA
P.S.-LAKHIMPUR
DIST-LAKHIMPUR
ASSAM
70: SRI KHARANANDA DAHAL
SON OF LATE BHABANI PRASAD DAHAL
RESIDENT OF NO.2 BOKANALA
P.O.-NO.2 BOKANALA
P.S.-BOGINADI
DIST-LAKHIMPUR
ASSAM
71: SRI PADMANATH DOLEY
SON OF LATE MAHARI DOLEY
RESIDENT OF URIAMGURI AKEN
P.O.-PATHALIPAM
P.S.-BAGINADI
DIST-LAKHIMPUR
ASSAM
72: SRI POBITRA PAYANG
SON OF LATE ALICHAN PAYANG
RESIDENT OF DUGHARIA SELEK GAON
P.O.-KOMBONG
DIST-LAKHIMPUR
Page No.# 14/26
ASSAM
73: SRI DHANESWAR PADUN
SON OF LATE LOKNATH PADUN
RESIDENT OF DUGHARIA
P.O.-KAMBONG
DIST-LAKHIMPUR
ASSAM
74: SRI LASHIMAN PEGU
SON OF LATE TIBGIR PEGU
RESIDENT OF NO.1 RAJAKHANA
P.O.-JONEKARENG
P.S.-JONAI
DIST-DHEMAJI
ASSAM
75: SRI CHENIRAM DOLEY
SON OF LATE MACHIRAM DOLEY
RESIDENT OF NO.3 RAJAKHANA
P.O.-JONEKARENG
P.S.-JONAI
DIST-DHEMAJI
ASSAM
76: SRI KAMALESWAR DOLEY
SON OF NAKESWAR DOLEY
RESIDENT OF NO. GHUNA KHURA CHUK
P.O.-BILMUKH
P.S.-GHILAMARA
DIST-LAKHIMPUR
ASSAM
77: SRI LEKHAN CHUTIA
SON OF LATE SIVA CHUTIA
RESIDENT OF NO. BURHAKURI
P.O.-BORDOLONI
P.S.-BORDOLONI
DIST-DHEMAJI
ASSAM
78: SRI TANU DUTTA
SON OF LATE DIMBESWAR DUTTA
Page No.# 15/26
RESIDENT OF PADUMONI
P.O.-BORDOLONI
P.S.-BORDOLONI
DIST-DHEMAJI
ASSAM
79: SRI RABINDRA BORGOHAIN
SON OF LATE DIMBESWAR BORGOHAIN
RESIDENT OF BHAKAT GAON
P.O.-BORDOLONI
P.S.-BORDOLONI
DIST-DHEMAJI
ASSAM
80: SRI MADHAB GOGOI
SON OF LATE KHAGESWAR GOGOI
RESIDENT OF NO.1 GOBINDAPUR
P.O.-NALBARI KACHARI
P.S.-BORDOLONI
DIST-DHEMAJI
ASSAM
81: SRI DILIP KR. DAS
SON OF LATE GORGESWAR DAS
RESIDENT OF NO. AUNIATI
P.O.-BORDOLONI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
82: SRI JADU DAS
SON OF BHULANATH DAS
RESIDENT OF NO. AUNIATI
P.O.-BORDOLONI
P.S.-DHEMAJI
DIST-DHEMAJI
ASSAM
83: SRI RAJIB KR. PEGU
SON OF NANDA PEGU
RESIDENT OF 2 NO.CHELAJAN GAON
P.O.-GUGAMUKH
Page No.# 16/26
P.S.-GUGAMUKH
DIST-DHEMAJI
ASSAM
84: SRI PADMESWAR DOLEY
SON OF LATE DASHIRAM DOLEY
RESIDENT OF TAJIK GAON
P.O.-GUGAMUKH
P.S.-GUGAMUKH
DIST-DHEMAJI
ASSAM
85: SRI MULUK DOLEY
SON OF BUDURAM DOLEY
RESIDENT OF CHANANG GAON
P.O.-PHUL KATA
DIST-LAKHIMPUR
ASSAM
86: SRI DHARMA KT. DOLEY
SON OF LATE MOHAN PEGU
RESIDENT OF LIGIAMUKH CHANANG GAON
P.O.-DABALAKATA
DIST-LAKHIMPUR
ASSAM
87: SRI BABUL PEGU
SON OF KULAGUTI PEGU
RESIDENT OF MAJOR CHAPORI
P.O.-ACHERAKATA BALIJAN
P.S.-PANIGAON
DIST-LAKHIMPUR
ASSA
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION
(ELEMENTARY) DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM, PIN-
781006
2:THE DIRECTOR ELEMENTARY EDUCATION
ASSAM
Page No.# 17/26
KAHILIPARA
GUWAHAT
Advocate for the Petitioner : MR S BORTHAKUR, MR P H KONWAR
Advocate for the Respondent : SC, ELEM. EDU,
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT & ORDER (ORAL)
Date : 06-03-2025
1. Heard Mr. S. Borthakur, learned counsel for the petitioners and Mr. B. Kaushik, learned Standing counsel, Elementary Education Department, Assam for the respondent Nos. 1 & 2.
2. The services of the petitioners herein were provincialised as 'Tutors' under the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Education Institution) Act, 2017 (hereinafter referred to as the Act, 2017).The grievance of the petitioners is that their services could not have been provincialised as 'Tutors' rather their services ought to have been provincialised as 'Teachers.'
3. It is not disputed by Mr. Borthakur, learned counsel for the petitioners that in terms of Section 4 of the Act 2017, the services of any teacher/tutor etc., provincialised under the aforesaid Act 2017, will take effect from the publication of order of the provincialisation in the Official Gazette.
4. It is also not disputed that on the date of publication of such Notification of provincialization of services of the petitioners as Tutors, the petitioners, though were having all other qualifications but were not having the TET qualification and for this reason, the services of the petitioners were provincialised as Tutors instead of Teachers.
5. It is the argument of Mr. Borthakur, learned counsel for the petitioners that such action on the part of the respondent authorities is not legally sustainable, in view of certain prescriptions made under the National Council for Teachers Education Act, 1993 (as Page No.# 18/26 amended) (hereinafter referred to as the NCTE Act, 1993) as well as the Rules and Regulations and the Notification framed thereunder.
6. Referring to Section 12 A of the NCTE Act 1993, Mr. Borthakur, learned counsel for the petitioners contends that the National Council For Teacher Education (hereinafter referred to as NCTE) is empowered to frame regulation, determine qualification for persons being recruited as teachers in any Primary, Upper Primary, Pre-Primary Secondary, Senior Secondary schools and all the intermediate Schools or Colleges (by whatever name it is called). It is the contention of Mr. Borthakur that in terms of Section 2 (ka) of the NCTE Act, 1993 (as amended), a school which is not receiving any aid or grant to meet whole or part of its expenses from the State Government, Central Government or a local authority, also comes under definition of a school and therefore, the venture schools of the petitioners shall also come under the definition of schools as well as shall be governed by the NCTE Act and Rules framed thereunder.
7. According to Mr. Borthakur, the requirement of the TET certificate is exempted for those teachers, who entered into service of a school prior to 03.09.2001 in terms of the Notification dated 23.08.2010, which prescribes the minimum qualification for being appointed as teachers in classes I-VIII, to which category the petitioners belong. As the petitioners' schools are under the purview of the NCTE Act'1993 and the petitioners entered into service at the venture stage prior to the aforesaid cutoff date, when TET was not made mandatory, the petitioners are entitled for provincialization as Teachers and not as Tutors inasmuch as such teachers are protected.
8. Referring to Section 2 (t) of the Act, 2017, which deals with the definition of 'Teacher', Mr. Borthakur, contends that a person is treated to be a teacher, when said teacher enters into the service at the venture stage having required qualification under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE, Act, 2009) and NCTE Act, 1993 etc. and the relevant rules and regulation framed thereunder, a harmonious construction of these Acts, i.e., RTE Act, 2009 NCTE Act and the Act, 2017 is necessary. According to him, it is not in dispute that the petitioners did have required qualification at the relevant point of time, when they entered into service at the venture stage of their respective Page No.# 19/26 schools under the aforesaid provisions of law and therefore, the petitioners could not be treated as Tutors, more particularly, for the reasons that they were having required qualification on the date of entry in their schools at venture stage in terms of the provision of Section 2 (t) of the Act 2017.
9. According to Mr. Borthakur, learned counsel for the petitioners that a harmonious construction of the provisions prescribed under the Act, 2009, the Act, 1993 as well as the rules and regulations framed thereunder with the ACT, 2017 is required so that the object of the Act 2017 to provincialise the services of those teachers, who have been serving in venture schools imparting education in primary/upper primary level and has been playing a role to achieve the goal of right to education, which is now a fundamental right recognized under the Constitution. According to the learned Counsel for the petitioners, if it is harmoniously constructed that the educational qualification required under Section 2 (t) of the Act 2017 is relatable to the date on which the petitioners entered into service at venture stage taking note of the statutory notification dated 23.08.2010, the same shall suppress the mischief that has been meted out to the petitioners and shall advance remedy as mandated under all these Acts. In this regard Mr. Borthakur, learned counsel places reliance on the judgment of the Hon'ble Apex Court passed in the case of Reserve Bank of Indiain & others Vs. Peerless General Finance and Investment Co.Ltd. and others reported in (1987) 1 SCC 424
10. Par contra, Mr. Kaushik, learned Standing counsel, Elementary Education Department contends that in the backdrop of an admitted fact that the petitioners were not having the required TET qualification on the date of issuance of the notification for provincialisation under Section 4 of the Act 2017, the respondent authority has rightly provincialised their services as Tutors in strict adherence of the Act, 2017.
11. In this context, referring to the provision of Section 2 (t) of the Act, 2017, which defines 'Teacher,' Mr. Kaushik, learned Standing counsel, Elementary Education Department contends that there is no un-ambiguity in Section 2 (t) of the Act, 2017 that a teacher must have the required qualification on the date of provincialisation and therefore, the arguments of Mr. Borthakur, that Section 2 (t) of the Act, 2017 prescribes acquisition of the required Page No.# 20/26 qualification on the date of entry into the school at venture stage, is not sustainable on the face of the definition of the Teacher under Sections 2 (t) & Tutor under Section 2 (u) of the Act, 2017.
12. It is also contended by Mr. Kaushik, learned Standing counsel, Elementary Education Department that legislature in its wisdom intentionally created a separate class of teachers as Tutors and definition of Tutors under Section 2 (u) of the Act, 2017 clearly shows that these teachers are those teachers who are lacking educational and professional qualification on the date of provincialisation inasmuch as the object of the Act, 2017 is to provincialise the services of qualified teachers on the date of provincialisation as teachers and those not having the required qualification are to be provincialised as Tutors. According to him, under Section 8 (3) of the Act, 2017, a time period of 5 (five) years is given to such Tutors for acquiring such qualification and get upgraded to the post of teacher. Therefore, according to Mr. Kaushik, learned Standing counsel, Elementary Education Department, even if it is accepted that NCTE Act, 1993 and the relevant rules are applicable in case of teacher, then also the principle Act under which provincialisation is made is the Act of 2017 and the prescription made is required to be adhered. Therefore, this writ petition should be dismissed.
13. Referring to the object to the Act, 2017, Mr. Kaushik, learned Standing counsel further argues that from the object, it is clear that intention of the legislature is not only to provincialise the services of the teachers but to provincialise the services of teachers those who are having required qualification as prescribed under law.
14. This Court has given anxious consideration to the argument advanced by the learned counsel for the parties. Perused the provision of the Acts cited at the bar. In the backdrop of arguments, lets this Court first consider the relevant provisions of the NCTE Act'1993, the RTE Act' 2009 and the Act' 2017.
15. The parliament enacted the RTE Act, 2009 on 04.08.2009. The object of the said Act'2009 is to fix the procedure and modalities for implementation of free and compulsory education for children aged between 6 to 16 years as mandated under Article 21 (A) of the Constitution of India. This Act was given effect on 1st April, 2010.
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16. Section 23(1) of the RTE Act, 2009 provides that any person possessing any such minimum qualification, as laid down by an academic authority, authorized by the Central Government, by Notification, shall be eligible for appointment as teachers.
17. The NCTE Act, 1993 was enacted to provide for establishment of NCTE with a view to achieve planned and coordinated development of teachers' education system throughout the country. The further object was to regulate and maintain the norms and standards in the teacher's education system and for matters connected therewith.
18. Pursuant to the enactment of RTE Act, 2009, the NCTE Act, 1993 was amended and a Section namely 12 A was inserted empowering NCTE to determine minimum standards of education of school teachers. Thus, NCTE is recognized as the authority under Section 23 (1) of the RTE Act, 2009.
19. Accordingly, NCTE issued the Notification dated 23.08.2010 prescribing the minimum qualification for being appointed as Teachers including teachers for classes I-VIII to which category the petitioners belong. In terms of said Notification, amongst other, a candidate must pass Teacher Eligibility Test (TET) conducted by the appropriate government to be appointed as a primary school teacher. Clause 4(C) of the aforesaid notification dated 23.08.2010 clarifies that such qualification does not apply to a teacher appointed prior to 03.09.2001 following the prevalent Recruitment Rules.
20. Mr. Borthakur, learned counsel for the petitioners is correct in saying that under Clause 4 (C) of the Notification dated 23.08.2010, the acquisition of qualification of TET is waived for those teachers appointed in accordance with prevalent Recruitment Rules before 03.09.2001. However, to consider the arguments of the learned counsel for the petitioners that in view of such provision, the petitioners are not required to obtain TET for being provincialised as teachers, this Court is to look into the provisions of the Act'2017, under which the petitioners are claiming/granted benefit of provincialisation.
21. Now coming to the provisions of the Act 2017, the object of Act'2017, as declared, amongst others, firstly, is to provincialise the services of teachers of venture educational institutes subject to certain conditions prescribed under the Act'2017 and secondly, to re-
Page No.# 22/26 organize and streamline the venture educational institutions upto degree level in Assam to confirm to the prevailing statutory norms and standards. Thus, from the aforesaid, it is clear that one of the objects is to maintain the standard of education in terms of prevailing statutory norms. As recorded herein above, the prevailing statutory norms in the present litigation shall be the norms under RTE Act, 2009 as well as NCTE Act, 1993, the Assam Secondary Education Provincialisation Act, 2012 and the Rules and the Notifications framed thereunder as on the date of provincialisation.
22. The definition of 'teacher' under Section 2 (t) of the Act, 2017, so far the same relates to a teacher of upper primary school, such teacher is required to have qualification prescribed under the RTE Act, 2009 as well as the NCTE, 1993 and the relevant rules and regulation framed thereunder as applicable on the day of provincialisation. Therefore, there is no ambiguity under Section 2 (t) of the Act 2017 that required qualification to come under the definition of teacher, the persons must have the required qualification prescribed under the Acts and Rules as enumerated in Section 2 (t) of the Act 2017 itself on the date of provincialisation, not on the date of entering into the service as a teacher into the school at its venture stage. The object of the Act, 2017 as recorded hereinabove also emphasizes on the standard of education prevailing on the date of the enactment of the Act, 2017.
23. Section 4 of the Act, 2017 clarifies that subject to fulfillment of other provisions prescribed under the Act 2017, the Tutor/Teacher shall become an employee of the State with effect from the date of publication of the Notification of provincialisation in the Official Gazette.
24. A bare reading of Section 6 (1) of the Act' 2017 further clarifies that the service of a teacher in a venture school shall be considered for provincialisation subject to fulfillment of eligibility criteria relating to educational and professional qualification as laid down under the RTE, 2009 and the rules framed thereunder, the NCTE Act, 1993 and the rules framed thereunder and the Assam Secondary Education (Provincialised) Service Rules, 2003 as amended in 2012 etc.
25. Section 6(2) of the Act'2017 also clarifies that when a teacher does not have the Page No.# 23/26 requisite academic and professional qualifications, prescribed under the relevant Acts, as enumerated under Section 6(1) of the Act'2017, services of such teachers will not be provincialised as teachers, though their services shall be provincialised as Tutors.
26. The aforesaid provision is also relatable to the definition of Tutor given under Section 2 (u) of the Act'2017, which creates a new class of Teachers, (Assistant Teacher, Classical Teacher etc.), whose services could not be provincialised as teachers for want of the educational and professional qualifications as prescribed.
27. Thus, the intention of the legislature is very clear and loud that it intends to create two sets of teachers, one who are having required educational & professional qualification in terms of the provisions prescribed under the Act' 2017 as on the date of provincialisation and as enumerated and recorded hereinabove, and those teachers, who are not having required educational and professional qualification but shall be provincialised as Tutors.
28. The intention of the legislature that educational and professional qualification is required on the date of provincialisation is further clarified from Sections 7 & 8 of the Act, 2017, which grants an opportunity to the Tutors to obtain required educational and professional qualification within a period of 5 years and in the event, such a Tutor acquires such educational and professional qualification, which he/she lacked at the time of provincialisation, the services of such Tutor shall be provincialised as Teacher.
29. Therefore, this Court is of the considered opinion that as per mandate of the Act' 2017, to get the service provinicalised, the petitioners must have the required educational & professional qualifications on the date of provincialisation. In the case in hand, admittedly, on the date of issuance of the Notification under Section 4 of the Act, 2017, the petitioners were not having the TET qualification, which is a prescribed qualification prevailing on such date. Therefore, from this point of view, this Court cannot find fault with the authorities in provincialising the services of the petitioners as Tutors.
30. Now let this Court deal with the arguments of Mr. Borthakur, learned counsel for the petitioners as regards harmonious construction.
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31. This Court has no doubt in its mind that 'interpretation' must depend on the text and the context and that the interpretation which makes the textual interpretation matches the context, is the best interpretation.
32. A statute is best interpreted when it is clear why it was enacted. In the present case, this Court had already concluded clearly as regards the object of the Act,2017, which includes that to be provincialised as teacher, the incumbent must have the educational and professional qualifications prescribed and prevailing as on the date of issuance of the Notification under Section 4 of the Act, 2017.
33. Though the context is provincialisation of service but from the unambiguous text of Sections 2 (t), 2 (u), 4, 6,7 and 8 of the Act, 2017, it is clear that another object and context is to have qualified teacher as per the Act and the rules enumerated in the Act'2017 and as on the date of provincialisation. Now, if this Court looks into the NCTE Act' 1993, one of the objects is to create an institution which can look into the standard of imparting education inasmuch as such authority is statutorily empowered to prescribe the qualification for being appointed as teacher, which has accordingly been prescribed under the Notification dated 23.08.2010 and in that notification, TET is made a mandatory qualification, though an exemption is given to those teachers who entered into the services in terms of the relevant rules prior to 03.09.2001.
34. Such exemption granted under Clause 4 (C) of the Notification is for a teacher who had already entered into the service of a school and who continues to be so. Thus, object of such exemption is to protect the services of the existing teachers who entered into service prior to 03.09.2001 in the respective schools as defined under Section 2 (ka) of the Act, 1993 including governed or managed by local authorities or private schools. However, such exemption shall not be available to a teacher of a venture school, who wants to have the benefit of becoming a teacher of a provincialised school, more particularly, for the reason that on being provincialised, such teacher shall enter into Govt. fold. Therefore, it cannot be said that the provincialisation shall mean continuation of service under Government. Further, as recorded hereinabove, the intention of the legislature in enacting the Act, 2017 is loud and clear that a teacher having required qualification as on the date of provincialisation shall only Page No.# 25/26 be provincialised as Teachers and otherwise as Tutors. Such proposition advanced by Mr. Borthakur, shall be applicable to a teacher of venture/private schools, who entered into service prior to 03.09.2001, and continued to be so and is sought to be deprive of this right by the management for not having required qualification in terms of the Notification dated 23.08.2010. In the case in hand, there is a change of status of the petitioners from being a venture school teacher to a Government School teacher (Tutor) by virtue of the Act, 2017 and therefore, the prescription made under such Act, 2017 as regards the date of acquisition of qualification shall prevail. If the argument of Mr. Borthakur is accepted, the same shall lead to an interpretation of Clause 4(C) of the Notification dated 23.08.2010, that such clause is meant to protect the previous service in venture schools for the purpose of grant of benefit under the Act'2017, which in the considered opinion shall defeat the very objects of both the Act'2017 and Clause 4(c) of the Notification dated 23.08.2010 issued by the NCTE.
35. Therefore, for the reasons recorded herein above, this Court is of the unhesitant view that there is no illegality in treating the petitioners as Tutors instead of Teachers. However, this order shall not be a bar to regularizing them as Teachers, if they acquire the requisite qualification within the prescribed period of 5 (five) years. Accordingly, the writ petitions stand dismissed.
36. At this stage, Mr. Borthakur learned counsel for the petitioners submits that though the petitioners are given time to obtain the qualification of TET, however, the petitioners are having no control over holding of such TET inasmuch as it is the State who is to conduct a special TET for the Tutors, who lacks the qualification. According to him, Special TETs for different categories of teachers had already been held by the State and therefore, a direction may be issued to the State to hold a special TET for the Tutors, who lack such qualification, but otherwise have the required educational and professional qualifications.
37. This Court cannot issue such a direction in the present petition inasmuch as there is no pleading or alternative prayer in the petition to that effect. However, the petitioners shall always be at liberty to raise their grievances before the Competent Authority, if they so desire. This Court will not further proceed or comment in this regard in the present petition and the same may be considered at an appropriate time in appropriate proceedings, if such Page No.# 26/26 issues are raised or agitated or necessity arises.
38. Needless to say that this order shall not also be a bar for the petitioners to obtain any benefit in terms of the determination made by the Division Bench, in Mohor Ali Sheikh & Ors. vs State of Assam & Anr. reported in 2024 5 GLT 689.
JUDGE Comparing Assistant