Gauhati High Court
Page No.# 1/6 vs The State Of Assam And 5 Ors on 22 January, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010030662019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1152/2019
SAMSUDDIN BARBHUIYA AND 2 ORS.
S/O LATE RAHMAT ALI BARBHUIYA
R/O VILL- AMBIKAPUR PART-X, P.O. MEHERPUR,
P.S. SILCHAR, DIST. CACHAR, ASSAM.
2: SMT. SALMA BEGUM BARBHUIYA
D/O SAIF UDDIN AHMED BARBHUIYA
R/O VILL- RAMNAGAR
TARAPUR PART-V
P.O. RAMNAGAR
P.S. SILCHAR
DIST. CACHAR
ASSAM
3: SRI SABUL HUSSAIN SODIAL
S/O LATE BASARAT ALI SODIAL
R/O VILL- PECHADHAR
P.O. TARAPUR
P.S. SILCHAR
DIST. CACHAR
ASSA
VERSUS
THE STATE OF ASSAM AND 5 ORS.
TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
ASSAM, SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI -6.
2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM
SECONDARY EDUCATION DEPARTMENT
DISPUR
Page No.# 2/6
GUWAHATI -06.
3:THE DIRECTOR
SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI -6.
4:THE DEPUTY COMMISSINER
CACHAR
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN - 788001.
5:THE INSPECTOR OF SCHOOLS
CACHAR DISTRICT CIRCLE
P.O. AND P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN - 788001.
6:THE SUPERINTENDENT
SILCHAR SENIOR MADRASSA
VILL- PECHADAHAR
P.O. TARAPUR (KHELMA)
P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN - 788003
Advocate for the Petitioner : MR. M H LASKAR
Advocate for the Respondent : SC, SEC. EDU.
Page No.# 3/6 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 22/01/2021 Heard Mr. M H Laskar, learned counsel for the petitioners. Also heard Ms. P Chakraborty, learned Standing counsel, Secondary Education Department for the respondent Nos. 1 to 3 & 5 as well as Mr. B Deori, learned Government Advocate, Assam for the respondent No. 4.
It is contended by the petitioners that they are serving in Silchar Senior Madrassa since long and the Director of Madrassa Education (DME), Assam by an order under No. DME.730/Prov./Cachar/2013/18 dated 27.12.2013 provincialised their services under the provisions of the Assam Venture Madrassa Educational Institution (Provincialization of Services) Act, 2011 as amended w.e.f. 01.01.2013. However, in a writ petition preferred by one Md. Fakar Uddin Laskar and five others, the Court, by order dated 26.08.2016 passed in WP(C) No. 490/2013 quashed and set aside the said order of provincialisation dated 27.12.2013 passed by the Director of Madrassa Education, Assam, noted above and remanded the matter back to the Government in the Education Department for fresh examination in accordance with law regarding provincialization of services of teaching and non-teaching staff of the said Silchar Senior Madrassa.
In the said order dated 26.08.2016, it is also observed that such exercise shall be completed within a period of 4 (four) months from the date of receipt of a certified copy of the same and if, after such fresh exercise, any party is aggrieved, the concerned party could be at liberty to approach the Competent Educational Tribunal for redressal of his/her grievance in terms of the Full Bench decision of the Court in the case of Abdul Gaffur Mondal Vs. State of Assam, reported in 2015 (2) GLT 337.
As the respondents in the Secondary Education Department did not comply with the said order dated 26.08.2016 passed in WP(C) No. 490/2013, the present petitioners approached the Court in a contempt proceeding being Cont. Cas(C) No. 379/2017. However, the said contempt petition was later closed. In the meanwhile, the State Government in the Secondary Education Department by its communication dated 18.08.2018 wrote to the Deputy Commissioner, Cachar to examine the claim for provincialization of the teaching and non-teaching staff of the said Silchar Senior Madrassa.
In this writ petition, the petitioners amongst others are claiming for a direction to the Deputy Commissioner, Cachar to complete the verification process of Silchar Senior Madrassa afresh, and to consider their case for provincialisation of their services under the provisions of the Assam Venture Page No.# 4/6 Madrassa Educational Institution (Provincialization of Services) Act, 2011 which was in force at the relevant time when the said judgment and order dated 26.08.2016 was passed in WP(C) No. 490/2013.
The petitioners further prayed for a direction to the respondent Nos. 1 & 2, the State Government in the Secondary Education Department to release their salaries w.e.f. 01.01.2013 as being paid to the other employees of the said Madrassa.
Notice in this case was issued on 25.02.2019, but the departmental respondents as well as the Deputy Commissioner, Cachar did not file any affidavit in the matter till date.
In spite of service of notice on the respondent No. 6 by dasti service, the concerned Superintendent of said Silchar Senior Madrassa did not appear in the matter.
From the order dated 26.08.2016 passed in WP(C) No. 490/2013 (Annexure-IV to this writ petition), it can be seen that the present petitioner Nos. 1, 2 & 3 were the respondent Nos. 7, 11 and 9 respectively in said WP(C) No. 490/2013 that was preferred by one Md. Fakar Uddin Laskar and 5 others, who claimed to be the teachers of the said Silchar Senior Madrassa and were deprived from provincialization of their services.
The Court, while deliberating the matter in its order dated 26.08.2016 passed in said WP(C) No. 490/2013 observed that :
"27. The Assam Venture Madrassa Educational Institutions (Provincialization of Services) Act, 2012 is pari material to the provisions of Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 (Act) has been enacted to provincialise the services of the employees of venture Madrassa Educational Institutions in the State of Assam and to restrict further establishment of such educational institutions in the State. The cut-off date for provincialisation of the employees, both teaching and non-teaching, is 01.01.2011."
At Paragraph-31 of the said order dated 26.08.2016, the Court specifically observed that - the provincialisation order dated 27.12.2013 has been issued by the Director of Madrassa Education, Assam, whereas under Section 11(4) of the Act, power, to issue notification for provincialisation vests with the State Government and not with the Director. Therefore, on the face of it, such provincialisation order appears to be without jurisdiction.
Moreover, the Court in the said order dated 26.08.2016, also observed that - said WP(C) No. Page No.# 5/6 490/2013 was filed on 21.01.2013, whereas the provincialisation order of the petitioners was issued by the Director of Madrassa Education, Assam on 27.12.2013. The Court took notice of the said action of the Director of Madrassa Education, Assam and observed that - when the Court is deliberating on the matter, there was no need for the Director of Madrassa Education to pass the provincialisation order dated 27.12.2013, more so, when he had no competence to issue such a Notification, making a remark in the Remarks column that provincialisation would be subject to outcome of the said WP(C) No. 490/2013 which does not make any sense as it does not amount to provincialization in the eye of law.
The Court in the said WP(C) No. 490/2013 further observed that - there should not be any haste and hurry in provincialising a venture educational institution as it amounts to conferring of status of Government servant on the employees and public money is involved. A venture educational institution which is mired in controversy entangled in litigation/Court cases or where police/criminal investigation is pending or is subjected to police/criminal investigation should not be considered for provincialisation unless such institution is cleared of such controversy, litigation or investigation. Corollary to the above, it goes without saying that there cannot be provincialization of service of a charge-sheeted accused.
Accordingly, the Court by the order dated 26.08.2016 passed in said WP(C) No. 490/2013 held that - the order dated 27.12.2013 regarding provincialization of services of teaching and non-teaching staff of said Silchar Senior Madrassa issued by the Director of Madrassa Education, Assam was held to be of no legal consequence and accordingly, remanded back the matter to the Government in the Education Department, noted above.
It is seen from the said order dated 26.08.2016 passed in WP(C) No. 490/2013 that there were criminal matters pending against the petitioners of said writ petition as well as the respondents therein.
It is to be noted herein that the said 2011 Act is no longer in force as a Division Bench of this Court by judgment and order dated 23.09.2016 passed in WP(C) No. 3190/2012 ( Chandan Kumar Neog Vs. State of Assam and others ) have already held the said 2011 Act to be unconstitutional and ultra-vires.
Further, the present petitioners, who were respondents in said WP(C) No. 490/2013 did not approach any higher forum against the said order dated 26.08.2016 passed in said WP(C) No. 490/2013 nor prayed for review of the same. Therefore, by afflux of time the said order of the Court Page No.# 6/6 dated 26.08.2016 passed in said WP(C) No. 490/2013 has become absolute and reached finality. As such, the said order of provincialization dated 27.12.2013 issued by the Director of Madrassa Education, Assam being held to be of no legal consequence, is no longer in force.
Since, the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 has already been declared as ultra vires and unconstitutional, the question of provincialization of services of the petitioners under the said 2011 Act, (amended in 2012) cannot be considered at this stage and the prayer of the petitioners is legally not tenable for provincialization of their services under the said 2011 Act, the same being not in force. However, in terms of the said order dated 26.08.2016 passed in WP(C) No. 490/2013, the respondents in the Secondary Education Department of the State shall consider the case of the petitioners as well as that of the petitioners of WP(C) No. 490/2013 in terms of the order dated 26.08.2016 afresh in accordance with law.
Needless to say that the respondents in the Secondary Education Department shall complete the exercise at the earliest.
As the order No. DME.730/Prov./Cachar/2013/18 dated 27.12.2013 passed by the Director of Madrassa Education (DME), Assam has already been set aside and quashed by the Court in the order dated 26.08.2016 passed in said WP(C) No. 490/2013, as Court observed above, therefore, the prayer made by the petitioners for provincialization of their services under the said 2011 Act and for payment of their salaries, does not have any legal force and are not tenable in law.
With the aforesaid observation and direction, this writ petition stands disposed of.
JUDGE Comparing Assistant