Gauhati High Court
WP(C)/3619/2020 on 9 January, 2026
GAHC010121292020
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT
WP(C) No. 3619/2020
Maitrayee Chakravarty,
W/o Shri Damodar Sarma,
Resident of Bilasipara, PO & PS-Bilasipara,
Ward No.14, College Road,
Dist.-Dhubri, Assam, Pin-783348.
......Petitioner.
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Government of Assam, Education (Higher) Department,
Dispur, Guwahati-6.
2. The Director of Higher Education, Assam,
Kahilipara, Guwahati-19.
3. The Governing Body of Bilasipara College,
Represented by the Principal cum Secretary of
Bilasipara College, Bilasipara, Dhubri,
Assam, Pin-783348.
......Respondents.
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For the Petitioner : Ms. A. Talukdar. ......Advocate.
For the Respondents : Mr. S. Das, SC, Higher Edu. ......Advocate.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing :- 18.11.2025
Date on which judgment is :- 18.11.2025
reserved
Date of pronouncement of :- 09.01.2026
judgment
Whether the pronouncement is of :- N/A
the operative part of the
judgment?
Whether the full judgment has :- Yes
been pronounced?
JUDGMENT AND ORDER (CAV)
Heard Ms. A. Talukdar, learned counsel for the petitioner and
also heard Mr. S. Das, learned standing counsel for the respondents in
Higher Education Department.
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2. In this petition, under Article 226 of the Constitution of India, the
petitioner, namely, Smti. Maitrayee Chakravarty, has prayed for
issuing direction to the respondent authorities to provincialise the
services of the petitioner as Asstt. Professor in the department of
Zoology of Bilasipara College, either in the third post or in the fourth
post, in the UGC scaled pay.
Background Facts:-
3. The background facts, leading to the filing of the present petition
is briefly stated as under:-
"The petitioners has completed her M.Sc. (Zoology) from
the Cotton College under Gauhati University in the year 1995,
and pursuant to an advertisement, published by the Principal of
Bilasipara College, for filling up of a post of Lecturer in Zoology
department, she had applied for the same and appeared before
the Selection Committee for an interview held on 7.04.1999, at
10:00 A.M., and she fared well in the interview and as such the
Principal of the College appointed her as Lecturer in Zoology
Department of the Bilasipara College vide letter under Ref. No.
BC/APTT./99/261, dated 9.04.1999, in a non- sanctioned post
with a condition that she had to render 2 years honorary
services from the date of her joining. Accordingly, the petitioner
joined on 9.04.1999, and resumed her duties as Lecturer in
Zoology.
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The Director of Higher Education, Assam also vide his
letter issued under Memo No. B(2)H.56./2000/112, dated
06.03.2000, was pleased to convey permission/affiliation for
starting subject against the Science stream of the college
including the subject of Zoology. During continuation of her
services, she obtained her M. Phil Degree in Zoology from
Vinayak Mission University in December, 2009. While she has
been working as such, the Govt. of Assam, Higher Education
Department, vide letter no. AHE.186/2013/8, dated 6.04.2013,
was pleased to accord concurrence for TDC- Pt. II Major Course
in the Chemistry and Zoology Department. After the
appointment of the petitioner to the post of Lecturer in Zoology
another candidate, namely, Abdul Goffor Ahmed has been
appointed as Lecturer in the subject Zoology at the Bilasipara
College who joined in 21.09.2004. As such, there were 4
teachers in Zoology Department of Bilasipara College appointed
by the Governing Body (G.B.) of the College prior to
provincialisation and one Sri Anil Bhuyan and Ms. Anita Koery
has joined in the college in Zoology Department on 11.07.1991
and 1.03.1997 respectively and they were admitted senior than
the petitioner. However, Abdul Goffor Ahmed who joined in the
Zoology Department of the college on 21.09.2004 was junior
than the petitioner.
The science stream of the Bilasipara College was
provincialised by the Govt. of Assam, including the services of
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the teaching and non-teaching staff of science stream, by an
order issued under Memo No.
PC/HE/VEN.EDNL.(77)/1/2014/18, dated 20.01.2014, under the
provisions of Sec. 4 (1) of Assam Venture Educational
Institutions (Provincialisation of Services) Act, 2011 as amended
2012. The services of the said staff of the college were
provincialised w.e.f. 1.01.2013.
But, unfortunately, the name of the petitioner was
dropped from the said order, instead, the name of Abdul Goffor
Ahmed has been included in the said order and his service has
been provincialised as Assistant Professor (Zoology) in third
post, in place of the petitioner. It is pertinent to mention herein
that the position of the petitioner was 3rd, on the basis of
seniority and position of Abdul Goffor Ahmed was 4th, and as
such, being senior the services of the petitioner should have
been provincialised. Then, on enquiry, the petitioner came to
know that her name has been dropped out from the order of
provincialisation because she has completed her M. Phil Degree
on December, 2009 i.e. after the cutoff date 10.07.2009 and
Abdul Goffor Ahmed completed M. Phil on March, 2009 i.e. prior
to the cutoff date, hence the services of Abdul Goffor Ahmed
has been provincialised in her place.
Thus, inspite of being dropped out the petitioner
continued in rendering dedicated services for the interest of the
college and its students. While working as such she also
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completed her Doctors in Philosophy (Ph.D.) course in the
session 2013-2014 from the University of Science and
Technology, Meghalaya.
As she was not aware of the provisions of the rules and
regulations, under which she had possess the minimum
requisite qualification at the time of provincialisation of the
science stream of the College, she did not challenge the action
for non-provincialisation of her services in the 3rd post of Asstt.
Professor (earlier known as lecturer) at that point of time.
Thereafter, the Director of Higher Education, Assam,
had prepared a college wise statement of under qualified
teachers for provincialisation of their services. And the name of
the petitioner has been figured in Sl. No. 1, along with five
others of Bilasipara College. As such, the petitioner was under
the bona-fide believe that her services would be provincialised
as the initiative was taken from the end of the Directorate.
It is also stated that Abdul Goffor Ahmed, who was
junior to her and whose services has been provincialised as
third Asstt. Professor of Zoology Department in place of the
petitioner, had obtained M. Phil degree prior to 10.07.2009,
from the Global Open University, Nagaland by spending some
money and the said University had issued more than 30,000
(Thirty Thousand) fake degrees of various Graduate and Post-
Graduate courses, wit the prices ranging between Rs.9000/- to
Page 6 of 31
Rs.35,000/- each and the said University is not authorized to
run distance education or off campus centers.
It is also stated that as Abdul Goffor Ahmed has already
expired, the petitioner do not want to challenge his degree and
the action of provincialisation of his services. However, this
aspect of the matter has mentioned herein only to substantiate
the fact that the petitioner was entitled to get the benefit of
provincialisation in the third post of Zoology Department.
It is also stated that her name has been wrongly dropped
out from the order of provincialisation inspite of having the
requisite qualification at the time of her appointment and as per
the various notifications, guidelines and regulations issued by
the UGC as well as education department of the state, NET,
SLET, Ph. D, M. Phil Degrees, were not required for the
appointee appointed during the period 24.12.1998 to
13.01.2000. The name of the petitioner was dropped from the
order of provincialisation only because she obtained her M. Phil
degree in the month of December, 2009, i.e. after 10.07.2009.
As such, she was very much eligible and entitled to get the
benefit of provincialisation w.e.f. the date on which the science
stream of Bilasipara College has been provincialised.
It is further stated that the Govt. of Assam, Education
(Higher) Department had issued an O.M. under the Memo No.-
B(2)H/408/99/41-A, dated 13-01-2000, (ANNEXURE- K) by
which it was decided to implement the schemes/norms for
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recruitment of teachers in the State of Assam as recommended
by the UGC, vide notification, dated 24-12-1998. As per clause
1(e) of the said O.M., the qualification prescribed for the post of
Lecturer (Asstt. Professor) is as follows:-
"Good academic record with at least 55% of marks or an
equivalent grade at the master's degree level, or any equivalent
degree from any foreign university besides clearing of National
Eligibility Test (NET)."
Therefore, the NET qualification has become mandatory
only w.e.f. the date of the issuance of this O.M. only. The
petitioner was appointed prior to the issuance of the O.M. and
hence NET, Ph.D., M. Phil, etc. were not required for the
provincialisation of services.
The Gauhati University had also issued an Ordinance
(ANNEXURE-L) on recruitment, service conditions, work load &
leave rules for Professors, Principals, Readers, Lecturers & other
officers of Gauhati University by which the NET/SLET has been
made compulsory for recruitment to the post of Lecturer w.e.f.
20-05-2000, only, as per E.C. Resolution No. 2000/11/79, dated
20-05-2000. Therefore, the NET/SLET was not mandatory
requisite qualification for the post of Lecturer of Gauhati
University also prior to 20-05-2000. It is pertinent to mention
herein that till 20-05-2000, the Gauhati University & the
colleges under Gauhati University had recruited Lecturers,
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Asstt. Professors without NET/SLET/PhD. /M.Phil & they are
enjoying all the benefits.
The Govt. of Assam had also issued another O.M.
(ANNEXURE- M), under Memo No. AHE101/2013/pt./139, dated
07- 02-2014, holding the petitioners & other similar Lecturer/
Asstt. Professor, who were appointed between 24-12-1998 to
13-01-2000, as qualified and decided to provincialize their
services as Asstt. Professor in the degree colleges of Assam by
exempting M.Phil/NET/SLET/Ph.D. qualification if they were
otherwise qualified as per UGC norms. The said O.M. dated 13-
01-2000, by which the Govt. of Assam have implemented the
UGC guidelines describing NET/SLET, as requisite qualifications
for the post of Lecturer/Asstt. Professor.
And pursuant to the aforesaid decision of the Govt. for
provincialisation of the services of the qualified Asstt. Professor
who were wrongly categorized as 'Under- qualified' Asstt.
Professor due to not having NET/SLET/PhD./M.Phil. joined
between 24-12-1998 to 13-01-2000, the Director of Higher
Education, Assam vide his letter No. PC/HE/Col.16/2014/340,
dated 11- 02-2014 (ANNEXURE- N), submitted the proposal for
creation of 232 numbers of posts of Asstt Professors, in venture
colleges with a request to accord necessary approval/sanction
from the Govt. of Assam, Education department wherein the
name of the petitioner has also been listed as qualified person
eligible for provincialisation of services as Asstt. Professor,
Page 9 of 31
Zoology of Bilasipara College. Thereafter, the matter relates to
the provincialisation of wrongly categorized 'Under qualified'
employees, appointed during the period from 25-12-1998 to 20-
02-2003 without NET/SLET/Ph.D./M.Phil., was placed before
the Judicial Department to obtain the few. Accordingly, the
Judicial Department expressed its opinion (ANNEXURE-„O‟)
dated 27-01-2015, to the effect that the requirement of
NET/SLET cannot be insisted upon those appointees appointed
prior to implementation of the UGC regulations.
The petitioner came to know about the aforesaid opinion
of the Judicial Department & obtain the copy of the same when
the same has been placed before the State Assembly during its
session when a question was put by Sri Keshav Mahanta, an
MLA. The Judicial Department also had expressed its opinion
and advised to provincialise the services of those employees
with full UGC scale, to avoid litigation.
It is also stated that all the provincialised/Govt. Colleges
& Universities in the state of Assam, the Asstt.
Professor/Lecturers were recruited without insisting
NET/SLET/PhD./M.Phil during the period 24-12-1998 to 13-01-
2000. As such, the petitioner, who was also appointed during
the said period in the venture college, cannot be discriminated
by treating differently.
It is also stated that during the process, the Assam
Venture Educational Institutions (Provincialisation of services)
Page 10 of 31
Act 2011, has been repealed & the Assam Education
(Provincialisation of Services of Teachers & Reorganization of
Educational Institutions) Act, 2017 has been brought.
Thereafter, some process has been initiated to provincialize the
services of the petitioner along with other similarly situated
Asstt. Professor, under the provisions of the new Act. As such,
the petitioner was under the legitimate expectation that her
services would be provincialised, more so she has obtained the
M.Phil. & Ph.D. degree during the year on which the colleges
has been provincialised. And when the Govt. of Assam,
Education Department published the approved list of
incumbents, comprising of 690 numbers of Principal/ Tutor
Principal/ Asstt. Professor/ Tutor Asstt. Professor in respect of
134 nos. of provincialised colleges for provincialisation of their
services vide order (ANNEXURE- P) issued under Memo No.
1010/2019/Pt.8-A, dated 18.08.2020, her name has not been
enlisted in the said list. The services of the said 690 number of
staff have been provincialised under the provision of the Assam
Education (Provincialisation of Services of Teachers and
Reorganization of Educational institution) Act, 2017 wherein 3
numbers of Asstt. Professor of Bilasipara College has been
figured but the name of the petitioner finds no mention in the
said list. It is also stated that her name must have been figured
in the aforesaid list of the provincialisation since she was not
only eligible under the newly enacted Act of 2017, but also she
Page 11 of 31
was eligible under the old Act of 2011, but her name has been
wrongly dropped from the list of provincialisation in the year
2014, inspite of having requisite qualification."
4. The respondent No.2, i.e. the Director of Higher Education, has
filed its affidavit-in-opposition, wherein it has taken a stand that
provincialisation of science stream of Bilasipara College was governed
by the provision of the Assam Venture Educational Institutions
(Provincialisation of Services) Act, 2011 which has been struck down
by this Court, vide Order dated 22-09-2016, in WP(C) No. 3190/2012.
Now Science Stream of Bilasipara College is governed by the provision
of The Assam Education (Provincialisation of Services of Teachers and
Re-Organisation of Education Institutions) Act, 2017. The petitioner
was appointed by the College authority as a Lecturer in Zoology
Department against the non-sanctioned post in the Science Stream of
Bilasipara College. The Science Stream of the Bilasipara College is an
additional stream and that stream is a venture degree college under
the definition of Section 2(0) of the Assam Venture Educational
Institutions (Provincialisation of Services) Act, 2011, which have been
struck down by the Court and replaced by Section 2(w) of The Assam
Education (Provincialisation of Services of Teachers and Re-
Organization of Educational Institutions) Act, 2017. It is also stated
that the matter of provincialisation of service of the petitioner is
related to the additional Science Stream of Bilasipara College. The
provincialisation of services of the employees of the Science Stream of
Bilasipara College is governed by the statutory provisions of The
Page 12 of 31
Assam Education (Provincialisation of Services of Teachers and Re-
Organization of Educational Institutions) Act, 2017. The relevant
provisions which are required to be fulfilled for provincialisation of
services of the petitioner under the Act of 2017 are as follows:-
"Section 3 of The Assam Education (Provincialisation of
Services of Teachers and Re-Organisation of Educational
Institutions) Act, 2017 deals with eligibility criteria for
selection of educational institution for provincialisation of
services of teachers/tutors.
3 (1)(i):- The Venture Educational Institutions which have
been established and had obtained the required permission,
recognition, affiliation, concurrence, as the case may be, up
to the last and highest class required for the concerned
institution from the respective competent Authority or
Authorities on or before 01.01.2006:
Provided that the order for such permission,
recognition, affiliation, concurrence etc. shall have to be
issued on or before 01-01-2006 and any order issued
thereafter with any retrospective effect, shall not be
considered for the purpose of provincialisation of services of
any teacher and tutor, as the case may be, of the Institution;
...................................................................................................
................................................................................................... ...
Page 13 of 31(v) The Venture Educational Institute has a minimum total enrolment of 25 students in Class-X, if it is a Venture High School; 25 students in Class-XII if it is a Venture Higher Secondary School or Venture Junior College; 30 students in the final year of three years Degree College; if it is a venture Degree College, as on the date of coming into force of this Act:
................................................................................................... ................................................................................................... ...
(vii) In addition to the provision under Clause (v) above, at least 10 students must have appeared in the last final examination in any subject in case of Venture High School, Venture High Madrassa or Venture Higher Secondary School of Venture Junior College. At least 15 students in any subject must have appeared in case of Venture Degree College in the last final examination.
..................................................................................................
(ix) There shall be additional post in the same subject in venture High School, High Madrassa, Venture Higher Secondary School, Venture Junior College and Venture Degree College, if the minimum students appearing in the last final examination of the highest class for that subject Page 14 of 31 exceeds eighty in each class for the second post and exceeds 150 in each class for the third post;
3(2):- In case of a Venture College and a Venture Higher Secondary School or a Venture Junior College the eligibility criteria specified in sub-section (1) above regarding date of recognition, affiliation or concurrence, minimum enrolment and performance would mean in respect of each of subject with or without 'Major' as the case may be, and the services of the teachers appointed and engaged in connection with such subject and subject shall be considered for provincialisation under the provision of this Act, only if the specified eligibility criteria as per University Grants Commission Act 1956, National Council for Teachers Education Act, 1993 and relevant rules and regulations framed there under, as the case may be, as applicable on the date of provincialisation are satisfied and having sufficient enrolment in the concerned School or College including in the concerned subject."
It is also stated that, the Director of Higher Education had published a final list of incumbents for consideration of provincialisation of services as per the provision of the Assam Education (Provincialisation of Services of Teachers and Re- Organization of Educational Institutions) Act, 2017 and as amended in 2018. In the final list of incumbents for consideration of provincialisation of services, as per provision of the Act of 2017, the Page 15 of 31 petitioner's name was not figured/published due to non-fulfillment of required mandatory criteria as per provision of Act of 2017 and Amended 2018.
It is also stated that, the petitioner has been working in the 4th post of Zoology Department at Science Stream of Bilasipara College. The minimum required students in Zoology Department in the College did not appear in the last final examination, as per the provision of the 2017 Act at the time of consideration. Therefore, the petitioner is not eligible for consideration for provincialization of services under the statutory provision of Section 3(1)(vii)(ix) of the Assam Education (Provincialization of Services of Teachers and Re- Organization of Educational Institutions) Act, 2017 and Amendment Act 2018, for non fulfillment of mandatory conditions, stipulated therein. It is also stated that at no point of time the respondent No. 2 has acted discriminatorily, unfairly, injudiciously, arbitrarily and unreasonably towards the petitioner.
5. The petitioner has filed her reply to the affidavit-in-reply filed by the respondent No. 2, wherein she has reiterated and reaffirmed the statements and averments made in paragraph 15, 17, 18, 19, 20 & 21 of the writ petition. It is stated that by virtue of the O.Μ. dated 13.01.2000; the NET qualification has become mandatory only w.e.f. the date of issuance of the said O.M. and the petitioner was appointed prior to the issuance of the O.M. Further, the O.Μ. dated 07.02.2014, holds the petitioner and other similarly situated Lecturer/Assistant Professors, who were appointed between 24.12.1998 to 13.01.2000, Page 16 of 31 as qualified and decided to provincialize their services as Assistant Professor in the degree colleges of Assam by exempting M.Phil/NET/SLET/Ph.D. qualification, if they were otherwise qualified as per UGC qualifications required at that point of time. It is also stated that the amended provision i.e. Section 2(w) of the Assam Education (Provincialisation of Services of Teachers and Re- Organisation of Educational Institutions) Act, 2017 is not applicable in the case of the petitioner. It is pertinent to mention herein that the petitioner is very much eligible and entitled to get the benefit of provincialisation w.e.f. the date on which the science stream of Bilasipara College has been provincialised. The name of the petitioner has been wrongly dropped out from the order of provincialisation, in spite of having the requisite qualification at the time of her appointment and as per the various notifications, O.M., guidelines and regulations issued by the Education Department of the State. It is also stated that the NET, SLET, Ph.D., M. Phil degrees, were not required for the period 24.12.1998 to 13.01.2000. And further it is reiterated that the provisions of 2017 Act is not applicable in the case of the petitioner and even if it is assumed that her case is required to be considered under the new Act of 2017, as amended in the year 2018, then also she is eligible to be considered as she fulfills all the requirements as per provisions of the said Act. Further, it is stated that there were sufficient numbers of students in the Zoology Department (Hons. & General) in B.Sc. Course and H.S Course (Final Year Science and as such non- consideration/rejection of the case of the Petitioner Page 17 of 31 for provincialisation of her services under the provision of Section 3 (1)(VII)(IX) of the Assam Education (Provincialisation) of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 and Amendment Act, 2018 is illegal and arbitrary. The Year wise Enrollment in Zoology subject with effect from 2010-2020 issued by the Principal of the College (Annexure - C) clearly established that the petitioner is duly eligible to get the benefit of provincialisation of her services, but, that has not been done.
6. The respondent No.2 has filed an additional affidavit in compliance of the order dated 23/11/2023 and 12/03/2024 passed by this Court, to bring on record the number of students in the subject Zoology of Bilasipara College of the relevant period of time, and the list containing the names of Colleges and the subject wise numbers of students appeared in each final semesters, is enclosed as ANNEXURE-A, which is provided by the Registrar of Gauhati University to the Directorate of Higher Education pursuant to its Office Letter No. PC/HE/Prov.29/2018/1146, dated 28th May, 2020.
Submission of learned counsel for the petitioner:-
7. Ms. Talukdar, the learned counsel for the petitioner submits that the petitioner is M.Sc. with Second class, obtaining 58.20% marks in the year 1995. She was appointed as lecturer of Zoology in Bilasipara College in the year 1999. Thereafter, she has completed her M.Phil degree in December, 2009 and she was third in the seniority list of the Page 18 of 31 teachers in Zoology department of the said college. She also submits that the science stream of the Bilasipara College has been provincialised in the year 2014 w.e.f. 1.01.2013, but, despite being third in seniority list, her name has been dropped out and in her place one Abdul Goffor Ahmed, who was working as a lecturer of Zoology in the fourth post, has been provincialised. The reason cited for declaration of the petitioner as under qualified was that she obtained her M.Phil degree after 10.07.2009. Ms. Talukdar also submits that there was a Notification, dated 24.12.1998, issued by the UGC regarding qualification of Lecturers that has been implemented by the Govt. of Assam, by issuing O.M. dated 13.01.2000, for the first time and on the basis of which the Gauhati University also issued ordinance on recruitment w.e.f. 20.05.2000. Further submission of Ms. Talukdar is that the requisite qualification for being appointed to the post of Asstt. Professor/ Lecturer prior to 13.01.2000/20.05.2000, was Master degree with 55% only and there was no requirement of NET/SLET/M. Phil/ Ph.D., and as such, the name of the petitioner and other like Lecturers had erroneously been dropped out from the order of provincialisation and declared as under qualified. Further submission of Ms. Talukdar is that subsequently, realizing the mistake, the Govt. has issued the O.M. dated 7.02.2014 exempting M. Phil/ NET/SLET/Ph.D. for those who were appointed as Asstt. Professor, between 20.04.1998 to 13.01.2000. She further submits that thereafter, the proposal for creation of post for provincialisation of those Asstt. Professor/ Lecturers has also been submitted by obtaining views from Judicial, Page 19 of 31 Personnel, Finance department and the name of the petitioner also figured in the said list supposed to be provincialised. But, in the mean time, the 2011 Act has been repealed and 2017 Act has been brought. As per knowledge of the petitioner the process of provincialisation of their services was going on under the new Act and she was legitimately expecting that her services would be provincialised. But, on publication of the approval list, vide order dated 18.02.2020, comprising 690 numbers of employees, whose services has been provincialised, her name finds no mention therein and she was dropped again without any reason, despite being eligible and she is entitled to get the benefits of provincialisation in the year 2013 itself and inspite of having the requisite qualification, she has been deprived from getting the benefits of provincialisation again and again. Therefore she has contended to allow this petition. 7.1. Ms. Talukdar has referred to following decisions in support of her submission:-
(i) WP(C) No. 6804/2017 (Dilip Das vs. State of Assam and 2 others);
(ii) WP(C) No. 3499/2014 (Sailendra Nath Sharma vs. State of Assam and 4 others).
Submission of learned counsel for the respondents:-
Page 20 of 318. Per contra, Mr. S. Das, learned standing counsel for the Higher Education Department has vehemently opposed the petition. Apart from his oral argument, he has filed written argument raising following points for consideration of this Court:-
(i) The petitioner has prayed for provincialisation of her service as Assistant Professor in the Department of Zoology of Bilasipara College either in the 3rd post or in the 4th post, whereas, the 3rd post of the said College was already been provincialised in the name of Abdul Goffar Ahmed, vide order dated 20-01-2014 (Annexure H, page 29 of the writ petition).
The petitioner has not challenged the said provincialisation though it was her categorical contention that she was wrongly dropped. She has approached this Court only in the year 2020 i.e. after a long period of 6 years that too without challenging the said provincialisation order, dated 20-01- 2014, and as such there is delay and laches on the part of the petitioner for which she is not entitled to any relief.
(ii) Though she has claimed provincialisation of her service in the 3rd post she has not arraigned the legal heirs of late Abdul Goffar Ahmed as party respondent here in this writ petition, who were the beneficiary of the pensionary benefit of Late Abdul Goffar Ahmed, and necessary party herein. On this count also the prayer of the petitioner to provincialise her service in the 3rd post is not maintainable.
Page 21 of 31(iii) The service of the 3rd post was provincialised under the Act, of 2011 which has been struck down by this Court, vide order dated 22-09-2016, in WP (C) No. 3190/2012. Now, the case of the petitioner cannot be considered under the said Act of 2011, but it has to be considered under the new Act of 2017, as because it is a settled proposition of law that after declaration of a statute as unconstitutional by a Court of law, it is non-est for all purposes. The saving clause i.e. Section 24 of the Act of 2017, will not be applicable here because the said Section protect the rights of those persons who had already been given service benefits under the Act of 2011. But, here in this case, the petitioner did not get any benefit under the Act of 2011. In support of such contention, Mr. Das has referred following decision:-
(i) MANU/SC/0126/2022 (State of Manipur -Vs Surjakumar Okram & Ors), Para-15(24), 18, 23;
(ii) WA No.283/2019 (Purnabati Brahma -Vs-
State of Assam & 6 Ors).
(iv) That since the maximum limit of 3 numbers of teachers against the particular Subject Zoology [as provided under Section 3 (1) (vii) of 2017 Act] has already been provincialised under the Act of 2011, vide order dated 20-01-
2014, therefore the relevant provisions which is required to be fulfilled by the petitioner for the purpose of Page 22 of 31 provincialisation of her service against the 4th post i.e. for the additional post, under the Act of 2017 is Section 3 (1) (ix) of 2017 Act. However, the minimum required student in Zoology department in the College did not appear in the last final examination i.e. in the year of 2017 and as such the petitioner is not eligible for consideration for provincialisation for the 4th post, under the 2017 Act for non fulfillment of mandatory condition stipulated in the Act.
8.1. In support of this contention, Mr. Das has referred following decisions:-
(i) WP(C) No.141/2022 (Anjarul Azam Fakir -Vs-
State of Assam & Ors);
(ii) WP(C) No.730/2023 (Jachimuddin Chowdhury -
Vs- State of Assam).
Discussion and Analysis:-
9. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the order dated 20.01.2014 (Annexure-H), passed by the Director of Secondary Education, Assam whereby the Science Stream of Bilasipara College has been provincialised. Also, gone through the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 and as amended in 2018.
Page 23 of 3110. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:-
(i) The petitioner has possessed M.Sc. degree in Zoology with 58.20% marks and she was appointed as lecturer of Zoology in Bilasipara College in the year 1999.
(ii) She has completed her M. Phil. degree in December, 2009.
(iii) She was third in the seniority list of the teachers in Zoology department of the said college.
(iv) The science stream of the Bilasipara College has been provincialised vide order dated 20.01.2014, w.e.f. 1.01.2013.
(v) But, despite being third in seniority list, her name has been dropped and in her place one Abdul Goffor Ahmed, who was working as a lecturer of Zoology in the fourth post has been provincialised.
(vi) Said Abdul Goffor Ahmed has already suffered demise. This is an undisputed fact and also fait accompli from the written submission of Mr. Das, the learned standing Counsel for the Higher Education Department.
(vii) The petitioner was declared as under qualified as she obtained her M.Phil degree after 10.07.2009.
(viii) There was a notification, dated 24.12.1998, issued by the UGC regarding qualification of Lecturers that has been implemented by the Govt.Page 24 of 31
of Assam by issuing O.M. dated 13.01.2000 for the first time.
(ix) On the basis of said O.M. the Gauhati University also issued as ordinance on recruitment w.e.f.
20.05.2000.
(x) The requisite qualification for being appointed to the post of Asstt. Professor/ Lecturer prior to 13.01.2000 /20.05.2000 was Master degree with 55% only and there was no requirement of NET/SLET/M. Phil/ Ph.D.
(xi) The Govt. has issued one O.M. dated 7.02.2014, exempting M. Phil/ NET/SLET/Ph.D. for those who have been appointed as Asstt. Professor between 20.04.1998 to 13.01.2000.
(xii) The Govt. has prepared a proposal for creation of post for provincialisation of those Asstt.
Professor/ Lecturers has also been submitted by obtaining views from Judicial, Personnel, Finance department and the name of the petitioner also figured in the said list supposed to be provincialised.
(xiii) But, in the mean time, the 2011 Act has been repealed and 2017 Act has been brought. And the process of provincialisation of their services, was proceeded under the new Act, and she was expecting that her services would be provincialised.
(xiv) However, on publication of the approval list vide order dated 18.08.2020, comprising of 690 numbers of employees, the name of the petitioner was dropped again without any reason, despite being Page 25 of 31 eligible and entitled to get the benefits of provincialisation in the year 2013 itself.
10.1. It is to be noted here that above facts and circumstances are not disputed by the state respondents in their affidavit in opposition. Almost all the averments made by the petitioner in her petition and reply to the affidavit in opposition remained un-traversed. The uncontroverted contentions being made by the petitioner as well as submissions goes a long way to establish that the petitioner was third in seniority list of the teachers of Zoology Department of Bilasipara College at the time of provincialisation of the Science stream of the said College.
10.2. Further it appears that prior to 13.01.2000 /20.05.2000, the requisite qualification for being appointed as Lecturer was Master degree with 55% only and there was no requirement of NET/SLET/M. Phil/ Ph.D. And to that effect the Govt. has issued one O.M. dated 7.02.2014 exempting M. Phil/ NET/SLET/Ph.D. for those who have appointed as Asstt. Professor between 20.04.1998 to 13.01.2000. The petitioner herein was appointed as lecturer in Zoology department in Bilasipara College in the year 1999. That being so her case is squarely covered by the O.M. dated 7.02.2014, issued by the Govt. of Assam. This fact is not disputed by the respondent authorities.
10.3. This being the factual as well as legal position, there is reasonable ground to believe that the petitioner was erroneously deprived of provincialisation of her service at the time of Page 26 of 31 provincialisation of Science Stream of Bilasipara College vide order dated 20.01.2014 (Annexure-H) and in her place the service of Abdul Goffor Ahmed has been provincialised erroneously.
10.4. However, said Abdul Goffor Ahmed has already suffered demise and on such count, the petitioner has not arraigned him or his legal heirs as party in this proceeding. Since said Abdul Goffor Ahmed has suffered demise, the said post is lying vacant and nothing is placed on record to show that the said post is filled up by the respondent authority.
10.5. It also appears that thereafter, the Govt. has prepared a proposal for creation of post for provincialisation of those Asstt. Professor/Lecturers and the same has also been submitted by obtaining views from Judicial, Personnel, Finance department and the name of the petitioner also figured in the said list of candidates, which were supposed to be provincialised. But, in the meantime, the Act of 2011 was repealed and the Act of 2017 came into force.
10.6. It is the categorical contention of Mr. Das that since the Act of 2011 was repealed now the case of the petitioner cannot be considered under the repealed Act. The submissions so advanced seems to be not so unreasonable and the decision relied upon by him in Surjakumar Okram(supra) also supported such contention. According to him, the case of the petitioner has to be considered under the Act of 2017 and the same has been considered, but her service could not be provincialised due to non fulfillment of the criteria of minimum number of students, who had appeared in the last final Page 27 of 31 examination, as per provision of the 2017 Act. Referring to the additional affidavit of the respondent No. 2 and the statement of students, who had appeared in the Zoology department from Bilasipara College, as furnished by the Registrar of Gauhati University, (Annexure - A) for the year 2016, 2017 and 2018 as extended below, Mr. Das submits that the number of students are not sufficient to satisfy the requisite criteria-
Name of Subject 2016 2017 2018
the
College
Bilasipara Zoology 70 43 36 28 26 46 36 115
College (Major)
Zoology 130 54 113 91 62 89 61 26
10.7. However, the list furnished by the Gauhati University appears to be contradictory to the list furnished by the Principal of the College which is being enclosed by the petitioner in her affidavit in reply as Annexure-„C‟, and the relevant data for the year 2016, 2017 and 2018 are shown below:-
year B.Sc. (1st, 2nd and 3rd year H.S. Final Year Grand (science) Total Major General Total 2016 68 159 227 45 272 2017 90 153 243 44 287 2018 75 192 267 75 342 10.8. Notably, as per Section 3(1) (vii) of the Act of 2017, the requirement is at least 15 students in any subject must have appeared Page 28 of 31 in case of Venture Degree College in the last final examination. And as per Section 3(1) (ix) there shall be additional post in the same subject in venture High School, High Madrassa, Venture Higher Secondary School, Venture Junior College and Venture Degree College, if the minimum students appearing in the last final examination of the highest class for that subject exceeds eighty in each class for the second post and exceeds 150 in each class for the third post. If we go by the list of students furnished by the principal of the College as on 14.05.2022 (Annexure-C) of the affidavit in reply of the petitioner, then this Court left unimpressed by the submissions of Mr. Das, the learned standing counsel for the respondent.
10.9. If the requirement is minimum 150 students in each class, then the required criteria of more than 150 students seems to be satisfied with by the petitioner. Notably, the list of students so furnished by the Principal of Bilasipara College (Annexure-„C‟) is not disputed by the state respondent. And said list, Annexure-„C‟ appears to be more convincing in view the same bears the seal and signature of the Principal. On the other hand, the list furnished by the Registrar, Gauhati University bears no seal, signature and date. Further, it is not understood as to why the respondent No.2 had chosen to call for the list of students from the Registrar, Gauhati University, instead of the Principal of the College.
10.10. Thus, denial of benefit of provincialisation of service of the petitioner, on the basis of unverified data of students, so furnished by the Registrar, Gauhati University, by the respondent No. 2, to the Page 29 of 31 considered opinion of this Court, is arbitrary and illegal and the same violates the right of the petitioner, as guaranteed Article 14 and 16(1) of the Constitution of India, and consequently, the same failed to withstand the legal scrutiny and on this count, the same is liable to be interfered with.
11. I have gone through the decisions referred by Mr. Das, learned counsel for the respondent. But, it appears that the said cases proceed on their own fact and the same are not applicable in all force to the given facts and circumstances of the case in hand. Therefore, detailed discussion of the same are found to be not here in this case. It is, however, a fact that there is some delay in approaching this Court, by the petitioner. But, in the given factual background and in the chronology of the events, as narrated in her pleadings, by the petitioner, the delay appears to be explained and the same remained uncontroverted by the respondent No.2 in its pleadings.
Conclusion of this Court:-
12. In the result, this Court finds sufficient merit in this petition. And accordingly, the same stands allowed. By a mandamus of this Court, the respondent No. 2 is directed to provincialise the service of the petitioner, in the 3rd post of the Department of Zoology of Bilasipara College, under the Act of 2017, with effect from the date of publication of approved list of incumbents, comprising of 690 numbers of Principal/ Tutor Principal/ Asstt. Professor/ Tutor Asstt. Professor in respect of 134 numbers of provincialised colleges for provincialisation of their services, vide order (ANNEXURE- P), issued under Memo No. Page 30 of 31 1010/2019/Pt.8-A, dated 18.08.2020, by the Govt. of Assam, Education Department.
13. The exercise, mentioned herein above, has to be carried out within a period of three months, from today. The petitioner shall obtain a certified copy of this order and place the same before the respondent No.2, within a period of one week from today.
14. In terms of above, this petition stands disposed of leaving the parties to bear their own costs.
JUDGE JUDGE Comparing Assistant Page 31 of 31