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2016 DIGILAW 210 (GAU)

Rumi Begum W/o Lt. Sahjahan Ali v. State of Assam

2016-03-22

A.K.GOSWAMI

body2016
JUDGMENT AND ORDER : A.K. Goswami, J. By this writ application under Article 226 of the Constitution of India, the petitioner, who is the wife of Late Shahjahan Ali, a Lecturer in Psychology in Uttar Pub-Kamrup College (Junior College), prays for a Writ of Certiorari to set aside the impugned list of Lecturer of the College uploaded on 31.1.2015 in the official website of the Government of Assam, namely, www.secondarymadhyamik.in so far it relates to the respondent No. 7, with further prayer for directing the respondent authorities to include the name of Late Shahjahan Ali in place of respondent No.7 for provincialisation, to grant financial assistance issued prior to provincialisation as well as other service benefits and to provide compassionate appointment to the family of Shahjahan Ali. 2. On 27.4.2015, while issuing notice of motion, an interim order was passed directing the respondent authorities not to fill up one post of Lecturer in Uttar Pub-Kamrup College (Junior College) until the returnable date, i.e., 12.6.2015. On 11.6.2015 the respondent No.7 had filed an application for vacation/modification of the interim order dated 27.4.2015. The said application was registered as I.A. No. 599/2015. On 12.6.2015, while directing listing of the case on 24.6.2015, interim order was directed to be continued in the meantime. On 18.6.2015, the petitioner filed an application for a fresh interim order, to be in continuation with the earlier order dated 27.4.2015. The said application was registered as I.A. No. 692/2015. 3. It appears from the records that for the first time orders were passed in I.A. No. 599/2015 and I.A. No. 692/2015 on 18.1.2016. Prior to 18.1.2016, it appears from the record that the case was listed on 20.11.2015 and on that day, while directing the Registry to list the case on 18.1.2016, interim order passed earlier was continued. A composite order passed on 18.1.2016 in WP(C) No. 2361/2015, I.A. No. 599/2015 and I.A. No. 692/2015 indicates that on that day submission was advanced by the learned standing counsel, Education (Secondary) Department as well as by Mr. B.D. Das, learned senior counsel appearing for the respondent No.7 that they do not intend to file any affidavit as the outcome of the case would depend on the legal aspects touching upon the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, "the Act"). B.D. Das, learned senior counsel appearing for the respondent No.7 that they do not intend to file any affidavit as the outcome of the case would depend on the legal aspects touching upon the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, "the Act"). A prayer was made to take up the writ application for disposal failing which they submitted that the Court may consider the interlocutory applications. It is on that basis thereof that the case was heard on 2.2.2016. 4. I have heard Mr. A.M. Buzarbaruah, learned senior counsel appearing for the petitioner. Also heard Mr. B.D. Das, learned senior counsel appearing for the respondent No.7, Mr. A.C. Buragohain, learned Advocate General, Assam along with Mr. S. Saikia, learned senior standing counsel as well as Mr. P. Saikia, learned standing counsel, Education (Secondary) Department appearing for the respondent Nos. 1, 2 & 4, Mr. B. Chetri, learned Senior Government Advocate, Assam as well as Ms. S. Bora, learned State counsel appearing for the respondent No.3. None has entered appearance for respondent Nos. 5 & 6, i.e. the Principal and the Governing Body, respectively, of Uttar Pub-Kamrup College (Junior College). 5. With the preface laid out, it will be appropriate now to take note of the pleaded case of the writ petitioner as projected in the writ petition. It is pleaded that the husband of the petitioner had passed M.A. in Psychology in the year 1993 from Gauhati University and pursuant to an order of appointment dated 22.12.1997, he joined as Lecturer in Psychology in Uttar Pub-Kamrup College (Junior College) on 25.12.1997. The respondent No. 7 was appointed on 1.8.2004 as Lecturer in History in the said College and accordingly, he had joined his services on 3.8.2004. Concurrence on recognition up to + 2 stage in Arts Stream was granted on 10.3.2005 with the subjects of English, MIL (Assamese), Education, Economics, Political Science, History, Logic and Philosophy, Advanced Assamese, Psychology and Geography. The petitioner's husband was at Serial No. 8 in order of seniority and he used to receive his share of financial assistance under the scheme of Sarba Siksha Abhijan (SSA) from the year 2007-08 onwards except the year 2010-11 when no financial assistance was paid to any teacher of the College. However, financial assistance of Rs. 30,000/- was paid for the year 2012. Thereafter, a sum of Rs. However, financial assistance of Rs. 30,000/- was paid for the year 2012. Thereafter, a sum of Rs. 65,000/- was paid by cheque as financial assistance in the name of the husband of the petitioner by the Principal of the College. A list of particulars of teaching and non-teaching staff of the College was submitted by the Principal for the purpose of provincialisation under the Act wherein the name of the husband of the petitioner was placed at Serial No.8 and that of the respondent No.7 at Serial No.9. However, on 13.1.2015, when the list of particulars of the employees of the College including that of Uttar Pub-Kamrup College was uploaded, the name of the husband of the petitioner was not included in the list but it included the name of respondent No.7. Petitioner's husband accordingly submitted a representation on 20.1.2015 before the Director of Secondary Education to include his name as respondent No.7 is junior to him. Subsequently, the husband of the petitioner become depressed for non-inclusion of his name in the list of teachers whose services are to be provincialised, committed suicide by hanging himself in the College premises on 28.1.2015. 6. As the learned counsel for the parties had also referred to the pleadings in I.A. No. 599 of 2015, it will be appropriate to take note of the salient features of the said application. 7. It is admitted by the respondent No.7 that the husband of the petitioner was appointed prior to the appointment of respondent No.7 in the College. However, it is stated that permission for the first year, with subjects of History, English, MIL (Assamese), Education, Economics, Political Science, Logic and Advanced Assamese excepting the subject of Psychology was given by the Assam Higher Secondary Education Council vide letter dated 17.8.1990 and Government in the Education Department conveyed its concurrence to the permission/affiliation for starting the aforesaid subjects on 23.3.1992. Second year permission for the aforesaid subjects was granted by the Assam Higher Secondary Education Council by an order dated 4.5.1992. By an order dated 21.9.1993, the Assam Higher Secondary Education Council accorded temporary recognition in the +2 stage, amongst others, to Uttar Pub-Kamrup College with the subject of History and other subjects but not in Psychology in respect of which first year permission was given by the Assam Higher Secondary Education Council by an order dated 25.4.2000. By an order dated 21.9.1993, the Assam Higher Secondary Education Council accorded temporary recognition in the +2 stage, amongst others, to Uttar Pub-Kamrup College with the subject of History and other subjects but not in Psychology in respect of which first year permission was given by the Assam Higher Secondary Education Council by an order dated 25.4.2000. Vide letter dated 10.3.2005, Government had provided concurrence to the permission/affiliation for starting the subject of History, Psychology along with some other subjects. Though first year Government concurrence to the permission had not been given till date, second year permission for the subject of Psychology was granted by an order dated 9.2.2010 and thereafter, Government recognition for the subject of Psychology was given by an order dated 13.1.2011. 8. In the affidavit filed to the said application, it is stated that the service of the husband of the petitioner, in view of the provisions of the Act, is deemed to have been provincialised on the date of coming into force of the Act. It is further pleaded that enrolment of students for the subject of History does not meet the requirement of Section 3 of the Act for the purpose of provincialisation. It is also stated that +2 stage concurrence to the subject of Psychology was given by the Government on 10.3.2005, which is prior to 1.1.2006 and, therefore, subject of Psychology meets the requirement of the provisions of the Act. 9. Placing reliance on the provisions of the Act, and more particularly, on Section 4(1), the learned senior counsel for the petitioner submits that the Act having come into force on 1.1.2013, the husband of the petitioner is entitled to a consideration for the purpose of provincialisation of service. It is submitted by him that if on consideration, it is found that the husband of the petitioner was entitled to have his service provincialised, by virtue of the deeming provision as contained in Section 4(1) of the Act, services of the petitioner will stand provincialised with effect from 1.1.2013 and, therefore, it is immaterial as to whether the husband of the petitioner was alive on the date when such consideration had taken place. As the case of the petitioner was not at all considered either by the District Scrutiny Committee or by the Director of Secondary Education, Assam, it is submitted by Mr. As the case of the petitioner was not at all considered either by the District Scrutiny Committee or by the Director of Secondary Education, Assam, it is submitted by Mr. Buzarbaruah that it will be appropriate for this Court to refer the dispute as to who in between the husband of the petitioner and the respondent No.7 is entitled to provincialisation of service. It is to be noted that the learned senior counsel for the petitioner has not addressed any argument with regard to financial assistance though prayed for in the writ petition. 10. Mr. B.D. Das, learned senior counsel appearing for the respondent No. 7 has emphatically argued that in view of the provision of Section 4(1) read with the proviso thereto, number of employees in both teaching and non-teaching cadre in each of the venture educational institutions, services of whom are to be provincialised shall not exceed as specified in the schedule appended to the Act and when the number of such employees exceed 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 institutions. He has drawn the attention of the Court to Section 10 providing for constitution of District Scrutiny Committee to scrutinise the service records and other related issues of the serving teachers and staff of venture educational institutions pertaining to provincialisation of their services. Therefore, he submits that provincialisation of service is not automatic and to consider the case for provincialisation of services, a person concerned must be a living person. 11. Mr. A.C. Buragohain, learned Advocate General, Assam has also submitted that the case of a person who is no more cannot be considered for the purpose of provincialisation under the scheme of the Act. Referring to the affidavit, which was filed with the permission of the Court by the respondent No.2 after the order dated 18.1.2016 was passed, it is submitted by Mr. Buragohain that the staff pattern annexed with the writ petition which included the name of the husband of the petitioner differs from the staff pattern that was submitted to the District Scrutiny Committee. He has submitted that the subjects of English, MIL (Assamese), Education, Economics, Political Science, History, Logic and Philosophy, Advanced Assamese, Psychology and Geography got +2 stage final Government concurrence on 10.2.2005. He has submitted that the subjects of English, MIL (Assamese), Education, Economics, Political Science, History, Logic and Philosophy, Advanced Assamese, Psychology and Geography got +2 stage final Government concurrence on 10.2.2005. Based on the affidavit filed, it is submitted by Mr. Buragohain that initially a post was kept vacant by the District Scrutiny Committee and after clarification was received from the Government, District Scrutiny Committee subsequently recommended the name of one Bijoy Kumar Nath, a Lecturer in Geography in the 8th post. It is submitted that as Bijoy Kumar Nath had joined on 21.7.1995, even prior to the date of joining of the husband of the petitioner, the post that is kept vacant today is meant for the respondent No.7. Mr. Buragohain has also drawn the attention of the Court to the judgment of this Court dated 16.6.2015 in the case of Md. Amjad Ali Sheikh v. State of Assam & Ors. (WP(C) No.5010/2013) disposed of on 16.6.2015, wherein this Court had held that an employee of a venture educational institution, whose service is to be regularized, has to have his seniority counted from the date concurrence was given by the State Government to the subject he was teaching. 12. I have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 13. Relevant portion of Section 4(1) of the Act reads as follows: "4. Employees to be Government servant.- (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 the date, provided such institutions have completed at least 7 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: xxxx xxxx xxxx 14. The word "employee" is defined under Section 2(h) of the 2011 Act to mean and include all serving employees both teaching and non-teaching staff of venture educational institutions who have been appointed by the concerned venture educational institutions before 1st of January, 2011 and whose services are being or would be provincialised under the Act. 15. The word "employee" is defined under Section 2(h) of the 2011 Act to mean and include all serving employees both teaching and non-teaching staff of venture educational institutions who have been appointed by the concerned venture educational institutions before 1st of January, 2011 and whose services are being or would be provincialised under the Act. 15. The expression in Section 4(1) of the Act that "services of the employees of all eligible venture educational institutions under Section 3 of the Act shall be deemed to have been provincialised on the date of coming into force of the Act" cannot be considered de hors the related provisions dealing with provincialisation of services of employees. Section 4(2) makes it clear that there is a specified number prescribed under each of the venture educational institutions regarding maximum number of employees, whose services can be provincialised. If Section 4(2) of the Act is not taken into consideration and the expression "services of the employees of all eligible venture educational institutions under Section 3 of the Act shall be deemed to have been provincialised on the date of coming into force of the Act"" is considered in isolation, all employees of all eligible venture educational institutions shall be deemed to have been provincialised. A harmonious interpretation is to be given to effectuate the purpose of legislation. Section 4(1) and Section 4(2) of the Act cannot be said to be mutually destructive of each other. Mechanism is provided in Section 10 of the Act to determine whose services are required to be provincialised so as to bring the number of employees within the limit prescribed in the schedule appended to the Act. Once the exercise is carried out and the order of provincialisation is issued in respect of the teachers and non-teaching staff, by virtue of the deeming clause in Section 4(1) of the Act, provincialisation order will relate back to the date of coming into force of the Act. In other words, irrespective of the fact when the order of provincialisation is issued, such provincialisation will have retrospective effect from the date of coming into force of the Act. 16. It is not in dispute that in respect of a junior college, the schedule to the Act provides that services of maximum of 8(eight) Lecturers for Arts can be provincialised. 16. It is not in dispute that in respect of a junior college, the schedule to the Act provides that services of maximum of 8(eight) Lecturers for Arts can be provincialised. Though the petitioner has annexed at Annexure-9 a list of particulars with the signature of the Principal, which includes the name of the husband of the petitioner, the particulars of eligible employees which was submitted by the Principal to the District Scrutiny Committee does not contain the name of Shahjahan Ali, husband of the petitioner. The 8th Post therein was kept vacant. The name of Bijoy Kumar Nath, which appears at Annexure-9 of the writ petition, is also not included in the said list annexed as Annexure-1 to the affidavit of respondent No.2. It is already noted that, subsequently, Bijoy Kumar Nath was recommended by District Scrutiny Committee for the vacant 8th post. 17. That the husband of the petitioner was working in the College is not in dispute. It is also not in dispute that when the list of particulars of the employees for provincialisation was published in the website on 13.1.2015, the husband of the petitioner was alive. That necessarily pre-supposes that the husband of the petitioner was also alive at the time when the District Scrutiny Committee had scrutinised the particulars sent by the Principal of the College. 18. Section 10(3) of the Act provides that the District Scrutiny Committee shall first scrutinise and prepare a list of all venture educational institutions within a district, which are eligible in terms of the provisions of the Act and shall thereafter proceed to scrutinise and verify the service records of all the serving employees, who are eligible or would become eligible for being considered for provincialisation of their services. The District Scrutiny Committee under Section 10(5) is empowered to also call for further records and documents as may be required for the purpose of causing verifications and scrutiny. It is also vested with the power to examine witnesses, if necessary, and while doing so, it has the powers of a civil court for the purpose of compelling attendance of persons and production of documents. It is also vested with the power to examine witnesses, if necessary, and while doing so, it has the powers of a civil court for the purpose of compelling attendance of persons and production of documents. Admittedly, at the relevant time when the husband of the petitioner was a serving employee, his case was not considered due to non-submission of particulars by the Principal of the College and District Scrutiny Committee had also not called for any further materials for the purpose of causing verifications and scrutiny. It appears the District Scrutiny Committee had merely endorsed whatever was sent by the Principal. Certainly much more is expected of a District Scrutiny Committee than merely dittoing the particulars sent by the Principal. The case of the husband of the petitioner, thus, was not considered though he was, admittedly, a serving employee. The fact that he is no more is of no consequence in as much as if it is found that the husband of the petitioner was entitled to have his services provincialised, irrespective of the date on which finally the order of provincialisation is passed, by virtue of the deeming provision in Section 4(1) of Act, his services would be provincialised with effect from the date of coming into force of the Act. 19. I am unable to accept the submission advanced on behalf of the respondents that a person has to be alive when the order of provincialisation is passed. It is quite uncertain the time that will be taken by the District Scrutiny Committee to scrutinise the service particulars. Even in the instant case, list of teachers eligible to have their services provincialised was uploaded only in the year 2015. The Act is a beneficial piece of legislation. By the time, the eventual order of provincialisation is passed, events like death of serving employees may occur. Law demands certainty and the acceptance of the proposition advanced by the respondents would lead to uncertainty. 20. For the purpose of application of the Act, what is relevant, amongst others, is that an employee must be in service and working on the date when the Act come into force. It will be wholly inconsequential as to whether an employee is alive when the consideration at various stages regarding provincialisation of service is taking place. 21. 20. For the purpose of application of the Act, what is relevant, amongst others, is that an employee must be in service and working on the date when the Act come into force. It will be wholly inconsequential as to whether an employee is alive when the consideration at various stages regarding provincialisation of service is taking place. 21. In that view of the matter, this Court is of the considered opinion that the case of the husband of the petitioner is required to be considered. No opinion is expressed by this Court with regard to who in between the husband of the petitioner and the respondent No.7 would be entitled to the 8th post. Though the District Scrutiny Committee is otherwise the first committee to scrutinise the service particulars, in the facts of this case, I am of the considered opinion that it will be just and proper to direct the Director of Secondary Education, Assam to examine the case of the husband of the petitioner and that of the respondent No. 7 and decide whose services are required to be provincialised having regard to the principles relating to provincialisation of service under the Act and thereafter, forward his recommendation to the State Government in terms of Section 10(4) of the Act for issuing the notification. 22. The writ petition stands disposed of in terms of the above. No cost.