Gauhati High Court
Nipa Kalita Deka vs Rajib Bori And 6 Ors on 22 December, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/7
GAHC010216272021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/2214/2021
NIPA KALITA DEKA
W/O LATE AJIT DEKA, TUTOR, KAZIRANGA RHINO LAND M.E. SCHOOL,
VILL. BELAGURI, P.O. BOKAKHAT, P.S. BOKAKHAT, DIST. GOLAGHAT,
ASSAM.
VERSUS
RAJIB BORI AND 6 ORS
S/O MONIDHAR BORI, R/O MONIDHAR BORI, VILL. SUMONITIKA VILL.,
P.O. BOKAKHAT, P.S. BOKAKHAT, DIST. GOLAGHAT, ASSAM.
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY.
DEPTT. OF ELEMENTARY EDUCATION
GOVT. OF ASSAM
DISPUR
GHY 6
3:THE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GHY 19
KAMRUP (M)
ASSAM.
4:THE DIST. SCRUTINY COMMITTEE
GOLAGHAT DIST.
REPRESENTED BY THE DEPUTY COMMISSIONER
GOLAGHAT DIST.
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5:THE DIST. ELEMENTARY EDUCATION OFFICER
GOLAGHAT DIST.
6:THE BLOCK ELEMENTARY EDUCATION OFFICER
GOLAGHAT WEST EDUCATION BLOCK
BOKAKHAT
7:SONESWAR KARDONG
TUTOR
KAZIRANGA RHINO LAND M.E.SCHOOL
VILL. BALAGURI
P.O. BOKAKHAT
P.S. BOKAKHAT
DIST. GOLAGHAT
ASSAM
Advocate for the Petitioner : MR. P J SAIKIA
Advocate for the Respondent : MD S HAQUE
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 22.12.2021 Heard Mr. P.J. Saikia, learned counsel for the applicant. Also heard Mr. S. Hoque, the learned counsel for the opposite party no. 1, Ms. M. Saikia, learned standing counsel for the Elementary Education Department, representing opposite party nos. 2, 3, 5 and 6, and Mr. S.R. Baruah, learned Government advocate appearing for the opposite party no. 4.
2) The status of the parties to this interlocutory application is as follows in the writ petition, viz., the opposite party is the writ petitioner, the opposite party nos. 2 to 5 are the respondent nos. 2 to 5, the opposite party no.
Page No.# 3/7 7 is arrayed as respondent no. 6 and the applicant is arrayed as respondent no.
7. Therefore, in this order the parties are referred as per their respective status in the writ petition, which is for the sake of convenience.
3) By virtue of this interlocutory application filed under Article 226(3) of the Constitution of India, the respondent no. 7 has prayed for vacation/ alteration/ modification of order dated 01.09.2021, passed in the connected W.P.(C) 3782/2021. The operative part of the said order is extracted herein below:-
"The petitioner is a language teacher in the subject English in the Kaziranga Rhino Land M.E. School having been appointed on 01.01.2000 and the respondent No.7 Nipa Kalita Deka is also a language teacher in the school being a teacher in the subject Hindi and was appointed on 09.06.2001. Apparently from the respective dates of appointment, the petitioner Rajib Bori would be senior to respondent No.7, Nipa Kalita Deka as a language teacher in the school. In view of the prima facie case being made out by the petitioner and considering the balance of convenience and irreparable loss that the petitioner may suffer, further effect of provincialisation be not given to the respondent No.7 Nipa Kalita Deka until further order(s)."
4) Having heard the submissions of the learned counsel for the appearing parties, perused the writ petition, interlocutory application as well as objection filed by the petitioner in the interlocutory application. Also perused the relevant provisions of the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as "2017 Act") and the provisions of the Assam Elementary Education (Provincialisation) Rules, 1977.
5) From Annexure-J to the interlocutory application, it is seen that the District Scrutiny Committee, Golaghat (respondent no. 3), vide resolution Page No.# 4/7 no. 4 adopted in the minutes of meeting held on 21.12.2017, had decided to select three teachers of recognized Upper Primary Schools as one Science teacher, one Hindi Teacher and name of one Headmaster/ senior-most teacher is included as one of the teacher of Social Science as per the 2017 Act. There appears to be no challenge to the said decision. Hence, the Court is of the opinion that the respondent no. 7 has been able to make out a prima facie case for vacating the interim order dated 01.09.2021.
6) There is also no dispute at the Bar that the concerned School, i.e. Kaziranga Rhino Land M.E. School is an Upper Primary School. There is also no dispute at the Bar that the 2017 Act does not prescribe the requisite qualification essential for provincialisation of service of a teacher in the Upper Primary School. Therefore, under such circumstances, coupled with the fact that no Rules has been framed under the 2017 Act, the Court is inclined to accept the contention of the learned counsel for the respondent no. 7 that the qualification of teachers as prescribed in the Assam Elementary Education (Provincialisation) Rules, 1977 (hereinafter referred to as the "1977 Rules), would become applicable.
7) It is the specific stand of the petitioner in the writ petition that he is a language teacher in English subject in Kaziranga Rhino Land M.E. School and that the respondent no. 7 is a Hindi teacher in the said School. As per the documents appended to the interlocutory application, the respondent no. 7 projects that she has earned Rashtrabhasha Ratna. In this regard, the learned counsel for the respondent no. 7 as well as the learned standing counsel for the Elementary Education Department are ad idem on the point that the degree of Page No.# 5/7 Rashtrabhasha Ratna conferred by Rashtrabhasha Prachar Samity, Wardha is a graduate degree. Therefore, when the respondent no. 3 had taken a decision to appoint Hindi Teacher and the respondent no. 7 otherwise appears to be holding the requisite qualification to be appointed as Hindi Teacher, the Court is of the opinion that the respondent no. 7 has been able to make out a prima facie case for vacating the interim order dated 01.09.2021.
8) One of the submissions of the learned counsel for the petitioner is that although in the Schedule appended to the 2017 Act, for Upper Primary Schools, ME Schools and M.E. Madrassa, provincialisation is envisaged for Hindi Teacher/ Arabic Teacher/ Language Teacher, but as per the provisions of Section 3(1)(xi) of the said 2017 Act, provincialisation of teacher of languages is envisaged and not of a Hindi subject teacher. In this regard, it is seen that in the provisions of Section 3(1)(xi) of the 2017 Act, the legislature has referred to the word "languages", which is a plural term and indicates more than one language. However, the singular of "languages" is "language". Thus, it is examined as to what would the use of "Hindi Teacher/ Arabic Teacher/ Language Teacher" in Schedule appended to the 2017 Act implies.
9) In the case of Ratul Deka v. State of Assam & 3 others, W.P.(C) 929/ 2017, decided on 15.06.2021, this Court had an occasion to delve upon the use of symbol (/), which is termed as the slash, the stroke, the virgule, the oblique, the solidus. The relevant paragraph thereof is quoted below:-
"8. On the point as to whether the petitioner and the respondent no.4 had the requisite qualification of having worked in "Judicial Court/office", the learned senior counsel for the petitioner and respondent no.4 had made their respective erudite submissions, which led the Court to search the internet on use of symbol Page No.# 6/7 (/), which is termed as the slash, the stroke, the virgule, the oblique, the solidus. It appears from the materials available in the internet that one of the uses of the said symbol is to depict relationship like one appearing in the following sentence -
"They were in love/hate relationship". The symbol of slashes are also commonly used to signify alternatives as in "and/or" and "his/her/they". The said symbol is also has usage to replace and, per, or or. Slashes can also appear in place of the word and, as in "She's a writer/ producer/actor," or the word or, as in "You can post on your favorite social media platform: Twitter/ Instagram/ Facebook." In the State of Assam, the police and the judiciary use the said symbol in lieu of a comma, for example, "The accused has committed offence punishable under Sections 302/323/ 325/326/149/34 IPC." In job advertisements, it is found to be used as suggesting alternatives, for example "Each candidate shall carry his/her proof of identity". The said symbol is also used to show a period time, for example "The 1989/90 football season was marred by frequent scandals.", "This office is open Tuesday/ Saturday each week." Thus, it is seen that the symbol (/) appears to have a varied/ variety of usage. Accordingly, the Court is of the considered opinion that in the present case in hand the words "Judicial Court/office" cannot be given a limited use to mean that the word "office" must be one attached to "judicial Court", as sought to be projected by the learned senior counsel for the petitioner."
10) Therefore, in the context of the contents of the Schedule appended to the 2017 Act, the use of symbol (/), which is termed as the slash, the stroke, the virgule, the oblique, the solidus would signify "alternative" or "replace" as morefully explained in the paragraph quoted from the case of Ratul Deka (supra). Accordingly, in view of the discussions above, as the respondent no. 3 had resolved to provincialise the service of Hindi Teacher and the Schedule appended to the 2017 Act indicates that any one of the Hindi Teacher/ Arabic Teacher/ Language Teacher can be provincialised, read with the use of the word "languages" in Section 3(1)(xi) of the 2017 Act, the Court is of the opinion that the respondent no. 7 has been able to make out a prima facie case for vacating the interim order dated 01.09.2021.
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11) Therefore, for the reasons discussed above, the Court is of the considered opinion that the respondent no. 7 has been able to demonstrate a better claim than the petitioner for having his service provincialised as a Hindi subject teacher. Accordingly, the Court is inclined to vacate the ad interim order dated 01.09.2021 passed in the connected W.P.(C) 3782/2021 in so far as it relates to direction that "... further effect of provincialisation be not given effect to the respondent no. 7 Nipa Kalita Deka ...". Resultantly, there shall be no embargo for the authorities in the Elementary Education Department to give effect to the order of provincialisation of the service of the respondent no. 7 (Annexure-5 of the writ petition).
12) However, it is clarified that the discussions as made herein before in this order is only confined to the present interlocutory application, and nothing contained herein is intended to be construed as an opinion of the Court on the merit of the claim of the parties to the writ petition, as such, this order shall not prejudice the parties when the connected writ petition is heard on merit.
13) This interlocutory application stands allowed.
JUDGE
Comparing Assistant