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2015 DIGILAW 1438 (GAU)

Md. Basir Ali S/o Kasim Ali v. State of Assam

2015-11-19

A.K.GOSWAMI

body2015
JUDGMENT AND ORDER : A.K. Goswami, J. Heard Mr. K. Bhuiyan, learned counsel for the petitioner. Also heard Mr. A.K. Bhuyan, learned Standing Counsel, B.T.A.D. appearing for Respondent Nos.3,4,5 and 6; Mr. P. Saikia, learned Standing Counsel, Secondary Education appearing for Respondent Nos.1 and 2 and Mr. C.P. Sharma, learned counsel appearing for Respondent No. 8. None appears for Respondent No. 7 despite service of notice. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for provincialisation of his service as Grade-IV "Day Section" Chowkidar in Kumarikata High Madrassa in place of Respondent No. 8. List-A, which is referred to in the prayer portion of the writ petition, is annexed as Annexure-10 and the same contains names of some schools and employees found eligible for provincialisation under Section 4 of Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, "the Act of 2011"). All the schools mentioned therein are High School/High Madrassa having two classes. The name of Kumarikata High Madrassa appears at Sl. No. 34 in the said list and the name of the Respondent No. 8 appears against the lone post of Grade-IV in respect of the said school. Though not part of the writ petition, it appears from an order dated 23.08.2013 (Annexure-B of the affidavit-in-opposition of the respondent No. 8) that the Director of Secondary Education, Assam, allotted 11 posts in various categories to Kumarikata High Madrassa in the District of Baksa. It is recorded that services of the incumbents mentioned therein including that of Respondent No. 8 were provincialised w.e.f. 01.01.2013. By the said order, service of respondent No. 8 was provincialised as Grade-IV. 3. It is submitted by Mr. Bhuiyan that the petitioner was appointed by the Managing Committee in the 'first' Grade-IV post on 17.04.2001 and accordingly, he had joined on 19.04.2001. Such appointment was made in the post of Day Section Chowkidar consequent upon resignation of Md. Abdul Kader, who was working in the school from 05.02.1989. It is stated by Mr. Bhuiyan that the Respondent No. 8 was appointed on 29.08.1994 (Annexure-A to the affidavit-in-reply to the affidavit of Respondent Nos.3, 4 and 6) as Grade-IV "Night Section" Chowkidar. Such appointment was made in the post of Day Section Chowkidar consequent upon resignation of Md. Abdul Kader, who was working in the school from 05.02.1989. It is stated by Mr. Bhuiyan that the Respondent No. 8 was appointed on 29.08.1994 (Annexure-A to the affidavit-in-reply to the affidavit of Respondent Nos.3, 4 and 6) as Grade-IV "Night Section" Chowkidar. It is submitted by him that post of "Day Section" Chowkidar was created by the school in question earlier in point of time as is demonstrated by the appointment of Abdul Kader in such a post, and therefore, when the petitioner was appointed in the post created earlier, notwithstanding the fact that he had been appointed subsequent to the Respondent No. 8 in the school, by virtue of his holding the 'first' post of Grade-IV, he will be entitled to provincialisation ahead of the Respondent No. 8. He has also drawn the attention of the Court to Annexure-9 of the writ petition to contend that the list prepared for the purpose of provincialisation by the school did not even have the name of Respondent No. 8 against the post of Grade-IV and it only contained the name of the petitioner. Placing reliance on the affidavit-in-reply to the affidavit-in-opposition filed by the Respondent No. 8, and more particularly, to Annexure-A and Annexure-C thereof, he has contended that the petitioner was not upgraded to the post of "Day Section" Chowkidar and that the writ petitioner continued as "Day Section" Chowkidar from the date of his appointment continuously and therefore, he is entitled to provincialisation of his services. In support of his submissions, Mr. Bhuiyan has placed reliance upon a judgment of the Apex Court in State of Tamil Nadu and Ors. v. Amalaannai Higher Secondary School, reported in (2009) 9 SCC 386 . 4. Mr. Sharma, learned counsel appearing for Respondent No. 8 has submitted that there is no dispute that the Respondent No. 8 has been serving the school as a Chowkidar from earlier point of time than the writ petitioner. Drawing attention of the Court to Annexure-5 of the writ petition, it is submitted by him that appointment of both Abdul Kader (since resigned) and the Respondent No. 8 were provisionally approved by the Inspector of Schools, Nalbari District Circle in the category of Grade-IV vide order dated 18.01.1995. Drawing attention of the Court to Annexure-5 of the writ petition, it is submitted by him that appointment of both Abdul Kader (since resigned) and the Respondent No. 8 were provisionally approved by the Inspector of Schools, Nalbari District Circle in the category of Grade-IV vide order dated 18.01.1995. His submission is that nomenclature used by the Managing Committee in respect of posts held by various categories of persons is immaterial and as far as post of Chowkidar is concerned, it is not in dispute that the same is a Grade-IV post and that is what is reflected in the provisional approval order dated 18.01.1995. In the appointment order of the writ petitioner (Annexure-3 to the writ petition), there is no mention that it was the 'first' post in Grade-IV and the statement made by the petitioner in his joining letter dated 19.04.2001 (Annexure-4 to the writ petition) that he had joined in the 'first' Grade-IV post, is a self-serving statement, he submits. 5. Highlighting the provisions of the Act of 2011 with particular reference to un-amended as well as amended Section 4 and the Schedule appended to the Act of 2011, it is sought to be articulated by him that emphasis is given on seniority of the incumbents serving a school in a particular category of post for the purpose of provincialisation of service and viewed in that perspective, there cannot be any manner of doubt that the writ petitioner is junior to the Respondent No. 8 in the category of Grade-IV, which position, he submits, is not even disputed by Mr. Bhuiyan. With reference to Annexure-A and C of the affidavit-in-reply of the writ petitioner to the affidavit-in-opposition of the Respondent No. 8, Mr. Sarma has submitted that the author of the documents in question, namely, the Superintendent of the School, has no authority under the scheme of the Act of 2011 to issue such letters. Even otherwise, the concept of up gradation as contained in Annexure-A is clearly misconceived as up gradation would, inevitably, having regard to the scheme of the Act of 2011, connote promotion of the incumbent holding the Grade-IV post to the post of Junior Assistant. Accordingly, he submits that there is no merit in this writ petition and the same deserves to be dismissed. 6. Mr. A.K. Bhuyan, while endorsing, in essence, the submissions of Mr. Accordingly, he submits that there is no merit in this writ petition and the same deserves to be dismissed. 6. Mr. A.K. Bhuyan, while endorsing, in essence, the submissions of Mr. Sharma, has also added another dimension to the case by submitting that the instant writ petition deserves to be dismissed for non-joinder of the Managing Committee of the school, who, according to him, is a necessary party in the facts and circumstances of the case. 7. Mr. Saikia has also adopted the arguments of Mr. Sharma. 8. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. Before I proceed to weigh the submissions of the learned counsel for the parties, it will be only appropriate to have a look at the statutory provisions governing provincialisation of the services of employees of a venture school, relating to which this litigation has been launched. 10. The Act of 2011 was enacted by the State of Assam, as the preamble of the Act goes to show, to provincialise the services of the employees of the Venture Educational Institutions in the State of Assam and to restrict further establishment of such Educational Institutions in the State. Venture High School means, in terms of Section 2(p), a High School including a High Madrassa imparting education up to Class-X and established by the people of the locality prior to 01.01.2006, which had received permission from the State Government and recognition from the Board of Secondary Education, Assam on or before 01.01.2006 and not provincialised under any Act enacted by the State Legislature till then. Provincialised school or provincialised college under Section 2(m) of the Act of 2011 means a Venture Educational Institution wherein the services of employees are provincialised under the Act. Once the service of an employee is provincialised, he will become an employee of the State Government with effect from the date of provincialisation. 11. The eligibility criteria for selection of Educational Institutions for provincialisation of services of the employees are laid down in Section 3. As the eligibility of Kumarikata High Madrassa to be provincialised is not an issue, it is not necessary to advert to the eligibility criteria laid down therein. 12. 11. The eligibility criteria for selection of Educational Institutions for provincialisation of services of the employees are laid down in Section 3. As the eligibility of Kumarikata High Madrassa to be provincialised is not an issue, it is not necessary to advert to the eligibility criteria laid down therein. 12. Section 4 assumes significance in the context of the present case and therefore, Section 4, as it was originally enacted, is reproduced herein below in its entirety: "(1) The services of the employees of all eligible Venture Educational Institutions under Section 3 and who have already completed ten years of services in such Educational Institution without any break from the date of affiliation, recognition, concurrence or permission as the case may be, of the concerned educational institutions as on the date of coming into force of this Act, shall be deemed to have been provincialised and they shall become employees of the State Government with effect from that date. (2) The services of all the teaching and non-teaching employees, who have not yet completed ten years of continuous services without break in that Venture Educational Institution a under sub-section (1) shall be provincialised with effect from the date on which they complete the required ten years of service as stipulated under sub-section (1): Provided that the numbers of employees in both teaching and non-teaching cadre in each of the institution, services of whom are provincialised or to be provincialised under this Act, shall not exceed as specified in the Schedule appended to this Act: Provided further that where the number of such employees serving in such Venture Educational Institutions exceeds the numbers as specified in the Schedule, the provincialisation of the services of the employees shall be on the basis of seniority in the respective category in the concerned educational institution. The State Government shall have no liability whatsoever in regard to such excess employees. (3) The services of a teaching or non-teaching employees in a Venture Educational Institution upto higher secondary level shall be considered for provincialisation, only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment. The State Government shall have no liability whatsoever in regard to such excess employees. (3) The services of a teaching or non-teaching employees in a Venture Educational Institution upto higher secondary level shall be considered for provincialisation, only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment. In case of employees of a Degree College, they must have acquired such requisite educational as well as professional qualification as may be determined by the University Grants Commission from time to time: Provided that if an employee is required to acquire any prescribed academic or professional qualifications, services of such employee may be considered for provincialisation if otherwise eligible, but in such case the provincialisation would be subject to acquisition of such prescribed qualifications within a period of five years from the date of coming into force of this Act, and during this intervening period, he may continue to work under the existing terms and conditions under which he was working, until his services are provincialised. In case of his failure to acquire the required academic or professional qualifications within the stipulated period, his services shall stand terminated with effect from the date of expiry of stipulated period of five years." 13. The Act of 2011 was amended by Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2012, (for short, the Amendment Act of 2012") whereby, amendments were effected, amongst others, in Section 4 of the Act of Section 2011. The Act of 2011 was amended by Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2012, (for short, the Amendment Act of 2012") whereby, amendments were effected, amongst others, in Section 4 of the Act of Section 2011. Section 4(1) was substituted with the following: "(1) The services of the employees of all eligible Venture Educational Institutions under section 3 shall be deemed to have been provincialised on the date of coming into force of this Act and they shall become employees of the State Government with effect from that date, provided such institutions have completed at least 10 years of imparting education from the date of affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act: Provided that the services of those employees of the Venture Educational Institutions eligible for provincialisation under section 3 which have not completed 10 years of their imparting education from the date of their affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act, shall be provincialised as and when the concerned educational institution completes 10 years of imparting education from the date of such affiliation, recognition, concurrence or permission, as the case may be." 14. Sub-section (2) of Section 4 was also amended as follows:- "(2) The numbers of employees in both teaching and non-teaching cadre in each of the Venture Educational Institutions, services of who are provincialised or to be provincialised under this Act, shall not exceed as specified in the Schedule appended to this Act: Provided that where the number of such employees serving in such Venture Educational Institutions exceeds the number as specified in the Schedule, the provincialisation of the services of the employees shall be on the basis of seniority in the respective category in the concerned educational institution. The State Government shall not have any liability whatsoever in regard to such excess employees: Provided further that the State Government shall have no liability whatsoever in respect of any past liability of the Venture Educational Institutions whose employees have been provincialised under this Act. 15. The State Government shall not have any liability whatsoever in regard to such excess employees: Provided further that the State Government shall have no liability whatsoever in respect of any past liability of the Venture Educational Institutions whose employees have been provincialised under this Act. 15. After Sub-section (3) of Section 4, the following Sub-section (4) was inserted: "(4) If any eligible Venture Educational Institution intends to remain outside the purview of provincialisation of services of their employees under this Act, such institution shall give their option in writing intimating their intention to remain outside the purview of this Act, before the District Scrutiny Committee within one year from the date of coming into force of this Act." 16. The Schedule appended to the Act of 2011 provides for the maximum number of employees per educational institution whose services shall be provincialised. In respect of High School/High Madrassa having two classes, apart from Head Master and teachers, one post of Junior Assistant and one post of Grade-IV have been earmarked and post of Grade-IV is the last post in the Schedule, placed after the post of Junior Assistant. In the Amendment Act of 2012, a note is appended in the Schedule to read "High School/High Madrassa (two classes)" as "High School/High Madrassa (three classes). 17. Under Section 4(1) as originally enacted, services of employees of all eligible Venture Educational Institutions and who have already completed ten years of service of such educational institutions without any break from the date of affiliation, recognition, concurrence or permission, as the case may be, of the concerned educational institutions as on the date of the coming into force of this Act, shall be deemed to have been provincialised. Sub-section (2) of Section 4, as was enacted, visualised provincialisation of services of employees, both teaching and non-teaching, who had not completed ten years of continuous services without any break, with effect from the date on which they complete the required ten years of service. 18. The first proviso to un-amended Section 4(2), however, puts a cap, stipulating that the number of employees of both teaching and non-teaching cadre in each of the institution to be provincialised shall not exceed the number of employees specified in the Schedule. 18. The first proviso to un-amended Section 4(2), however, puts a cap, stipulating that the number of employees of both teaching and non-teaching cadre in each of the institution to be provincialised shall not exceed the number of employees specified in the Schedule. The second proviso of un-amended Section 4(2) conceives of a situation where number of employees in a particular institution having ten years of qualifying service exceeds the numbers as specified in the Schedule. In such a scenario, in order to keep the number of employees within the limit as prescribed in the Schedule, provincialisation of the services of the employees is to be made on the basis of seniority in the respective category of post. It also provides that the State Government shall not have any liability in regard to such excess employees. 19. To illustrate the second proviso, a hypothetical situation can be visualized. Say, in the category of Junior Assistant, at the most, two persons can be provincialised in view of the Schedule and there are three persons holding the post of Junior Assistant. The second proviso provides that in such a situation, two employees, who are senior-most, would be provincialised and the State Government will have no liability whatsoever in respect of the third Junior Assistant. 20. By the Amendment Act of 2012, in Sub-section (1) of Section 4, both Sub-section (1) and Sub-section (2) of un-amended Section 4 have been broadly encapsulated with the Sub-section (2) of Section 4 figuring as proviso to Sub-section (1) in the amended version. The original first proviso of Sub-section (2) of un-amended Section 4, after the Amendment of Act of 2012, has become Sub-section (2) and the second proviso to Sub-section (2) of un-amended Section 4 is verbatim reproduced as the first proviso to the present Sub-section (2) of Section 4. An additional proviso is added providing that the State Government will have no liability whatsoever in respect of any past liability of the Venture Educational Institutions whose employees have been provincialised under this Act. 21. An additional proviso is added providing that the State Government will have no liability whatsoever in respect of any past liability of the Venture Educational Institutions whose employees have been provincialised under this Act. 21. The mechanism of the Act with regard to provincialisation of the services of an employee, which has been noted herein above, in unmistakable terms provides that provincialisation of the services of the employees shall be on the basis of seniority in the respective category in the concerned educational institution, should there be more employees in a particular category than the number specified in the Schedule in respect of that category. 22. Going by the provisions of the Act and having regard to the arguments advanced, it is the post of Grade-IV in the school, in which both the writ petitioner and the Respondent No. 8 stake their claim for provincialisation. The order of provincialisation has been issued by the Government. Therefore, I am of the opinion that the writ petition will not fail because of non-joinder of the Managing Committee of the school. 23. As noted above, there is only one post of Grade-IV specified in the Schedule to the Act of 2011. There is no dispute and, in fact, graciously admitted by Mr. K. Bhuiyan that going by the length of service in the school, the Respondent No. 8 is senior to the petitioner. His contention is that the petitioner was in the 'first' post of Grade-IV, he being the "Day Section" Chowkidar, which post was created by the Managing Committee earlier in point of time wherein one Abdul Kader was appointed in the year 1989. 24. The Respondent No. 8 was appointed as Night Section Chowkidar on 29.08.1994. The order of provisional approval dated 18.01.1995 of Md. Abdul Kader, who is no longer in the service of this school, and the respondent No. 8, shows that they had been appointed in Grade-IV post. The petitioner and the Respondent No. 8 might have been appointed as "Day Section Chowkidar" and "Night Section Chowkidar", respectively, but there cannot be any dispute that the posts of "Day Section Chowkidar" and "Night Section Chowkidar" are Grade-IV posts. May be, the Managing Committee had appointed Abdul Kader first in point of time as "Day Chowkidar" and, in his place, in the year 2001 the petitioner was appointed as Day Chowkidar. May be, the Managing Committee had appointed Abdul Kader first in point of time as "Day Chowkidar" and, in his place, in the year 2001 the petitioner was appointed as Day Chowkidar. It is to be borne in mind that Abdul Kader is not in picture as he had left the school and the writ petitioner was appointed in his place. The argument of Mr. Bhuiyan that he was appointed in the 'first' post of Chowkidar, even if it is taken to be correct, will not take his case any further, when admittedly, the petitioner had joined the service after ten years of service of the Respondent No. 8. Annexure-A and Annexure-C do not in any way advance the case of the petitioner, as having regard to the scheme of the Act, in the Grade-IV category of post, Respondent No. 8 had been serving the school for more than ten years when the writ petitioner was also appointed in the post of Grade-IV and therefore, the writ petitioner cannot steal a march over the Respondent No. 8 on the purported claim that he was appointed to the 'first' post of Grade-IV. Annexure-9 to the writ petition, no doubt, does not contain the name of the Respondent No. 8. Author of Annexure-9 to the writ petition and Annexure-A and Annexure-C of the affidavit-in-reply to the affidavit-in-opposition of the Respondent No. 8 is the same person, i.e. the Superintendent. Annexure-9 of the writ petition has columns for signature of the Chairman and Member Secretary of the District Scrutiny Committee, which is constituted under Section 10 of the Act of 2011. There is no signature of the aforesaid functionaries in Annexure-9 and, therefore, merely because the Superintendent had chosen to omit the name of the Respondent No. 8 will not tilt the scales in favour of the writ petitioner. If there is a mistake that has to be corrected and, righty, the Respondent No. 8 was provincialised in view of his seniority in the category of Grade-IV post. 25. Reliance placed by Mr. K. Bhuyan in the case of State of Tamil Nadu (Supra) does not help the case of the writ petitioner. In the aforesaid case, the Apex Court had laid-down that creation and sanction of post is a prerogative of the executive and the courts cannot arrogate to themselves a purely executive power. 25. Reliance placed by Mr. K. Bhuyan in the case of State of Tamil Nadu (Supra) does not help the case of the writ petitioner. In the aforesaid case, the Apex Court had laid-down that creation and sanction of post is a prerogative of the executive and the courts cannot arrogate to themselves a purely executive power. The Apex Court had occasion to say so because the High Court had directed sanction of one post of Junior Assistant to accommodate the Respondent No. 1 therein. Facts of the aforesaid case can hardly be said to be applicable to the instant case. 26. Accordingly, I find no merit in this writ petition and therefore, the same is dismissed. No cost. 27. Interim order passed earlier stands vacated.