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2016 DIGILAW 811 (GAU)

Chiranjib Kumar v. State of Assam

2016-08-29

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Ms. N.S. Thakuria, learned counsel for the petitioner, Mr. N. Sharma, learned Standing Counsel, Education Department for respondent Nos.1 to 3 and Mr. J. Roy, learned counsel for respondent Nos.5 and 6. None has appeared on behalf of respondent No.4. 2. Case was heard on 03.08.2016 and today is fixed for delivery of judgment. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of provincialisation order dated 05.03.2013 in respect of Titkuchi High School in the district of Kamrup (Rural) and further seeks a direction to the respondents to provincialise his service. 4. Case of the petitioner is that he joined as Assistant Teacher in the Titkuchi High School (School) on 01.01.1991 following his appointment by the Managing Committee of the School on the said date. At that stage, the School was a venture educational institution. It is also stated that petitioner's father had donated land for establishment of the School. 5. According to the petitioner, though he had joined the School on 01.01.1991, Managing Committee of the School issued appointment letters to the teaching and non-teaching staff of the School including the petitioner on 17.04.1994. At the time of appointment, petitioner was Higher Secondary pass. But subsequently in the year 2014, he obtained graduation from Gauhati University. 6. Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (Provincialisation Act) was enacted to provincialise the services of the employees of venture educational institutions in the State of Assam and to restrict further establishment of such educational institutions in the State. The effect of provincialisation as provided under Section 4 of the Provincialisation Act is that services of the employees of the eligible venture educational institutions brought under the purview of provincialisation would be deemed to be employees of the State Government with effect from the date of coming into force of the Provincialisation Act. Thus, the employees of such institutions would acquire the status of State Government employees. 7. In terms of the Provincialisation Act, the School was also taken up for consideration for provincialisation. In this connection, the School authorities had submitted list of teaching and non-teaching staff of the School to the Inspector of Schools, Kamrup District Circle. Ultimately, Director of Secondary Education, Assam, provincialised the School vide Annexure-6 order dated 05.03.2013. 7. In terms of the Provincialisation Act, the School was also taken up for consideration for provincialisation. In this connection, the School authorities had submitted list of teaching and non-teaching staff of the School to the Inspector of Schools, Kamrup District Circle. Ultimately, Director of Secondary Education, Assam, provincialised the School vide Annexure-6 order dated 05.03.2013. While service of respondent No.5 was provincialised as Assistant Headmaster, that of respondent No.6 was provincialised as Assistant Teacher (Arts). In the process, service of the petitioner was not provincialised. Petitioner contends that both respondent Nos.5 and 6 had joined the School after him which is particularly true in the case of respondent No.6, respondent No.6 having joined the School on 07.01.2002. The Provincialisation Act provides for provincialisation of the services of the employees on the basis of 'seniority' in the respective category. Admittedly, petitioner is senior to respondent Nos.5 and 6. Therefore, non-provincialisation of the service of the petitioner is not justified. In this connection, petitioner submitted several representations before the higher authorities for provincialisation of his service but without any success. 8. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 9. This Court by order dated 03.06.2013 had issued notice and passed an interim order to the effect that provincialisation benefits for one post of Assistant Teacher in the School should not be granted. 10. By a subsequent order dated 05.03.2014, this Court formulated the following issue for consideration:- "Whether date of entry into the service while the School was a venture School or the date of acquiring the minimum qualification, i.e., graduation is relevant for the purpose of provincialisation of service of Assistant Graduate Teacher, i.e., Assistant Teacher (Arts)". 11. Respondent No.2, i.e., Director of Secondary Education, Assam, in his affidavit has stated that initially petitioner was appointed verbally on 01.01.1991 but later on appointment letter was issued by the School authority on 17.04.1994. Educational qualification of the petitioner on the date of joining the School was only Higher Secondary pass. He passed the BA examination subsequently in the year 2004. It is stated that as per the Provincialisation Act, services of the employees working in venture educational institutions which were recognised on or before 01.01.2006 were provincialised by following the staff pattern as per Schedule to the Provincialisation Act. He passed the BA examination subsequently in the year 2004. It is stated that as per the Provincialisation Act, services of the employees working in venture educational institutions which were recognised on or before 01.01.2006 were provincialised by following the staff pattern as per Schedule to the Provincialisation Act. It is stated that services of 15 teaching and non-teaching staff of the School were provincialised vide order dated 26.07.2013 keeping one post of Assistant Teacher (Arts) vacant in terms of the interim order dated 03.06.2013. It is further stated that though petitioner had joined the School on 01.01.1991, he passed the BA examination in the year 2004. Therefore, he is junior to other three Assistant Teachers (Arts) of the School as the requisite qualification for the post of Assistant Teacher (Arts) is BA/B.Com. In so far respondent No.5 is concerned, it is stated that he had joined the School on 10.10.1993 while the educational qualification was pre-university pass but he passed the BA examination in the year 1997. Though the date of joining the School of respondent No.6 is 07.01.2002, i.e., later than the petitioner, on the date of joining, respondent No.6 had the requisite qualification, i.e., BA degree which she obtained in the year 2001. But petitioner passed the BA examination in the year 2004. There are only four posts of Assistant Teacher (Arts) in a five class High School/High Madrassa like the School as per the Schedule to the Provincialisation Act. Petitioner having passed the BA examination in the year 2004 was, therefore, junior to the other qualified Assistant Teacher (Arts) and as such, his service was not provincialised. 12. Separate counter affidavits have been filed by respondent Nos.5 and 6. 13. Respondent No.5 in his affidavit has stated that petitioner was initially appointed on 22.01.1991 as under-graduate Teacher (Arts) but in view of failure of the petitioner to possess the requisite qualification i.e., B.A., he was released from service by the Managing Committee of the School on 28.08.2000. Claim of the petitioner that his father had donated land for the School has been denied. Appointment letter of the petitioner dated 17.04.1994 has also been denied. Claim of the petitioner that his father had donated land for the School has been denied. Appointment letter of the petitioner dated 17.04.1994 has also been denied. It is stated that after petitioner passed the BA examination in the year 2004, he submitted application before the Managing Committee of the School where after petitioner was appointed as Assistant Teacher (Arts) on 20.03.2005 against additional section of Class-V. Petitioner's claim has no substance. Therefore, respondent No.5 seeks dismissal of the writ petition. 14. Similar stand has been taken by respondent No.6 in her counter affidavit. Additionally, it is stated that she was initially appointed as Hindi Teacher on 07.05.1996. Subsequently, on her obtaining BA degree, she was appointed as Assistant Teacher (Arts) in the School on 06.01.2002 where after she joined the School on 07.01.2002. 15. Submissions made by learned counsel for the parties have received the due consideration of the Court. 16. As already noticed above, by order dated 03.06.2013, one post of Assistant Teacher in the School was directed not to be provincialised. Affidavit of the Director also states that while services of 15 teaching and non-teaching staff of the School were provincialised vide order dated 26.07.2013, one post of Assistant Teacher (Arts) has been kept vacant in view of the aforesaid interim order. 17. The core issue which has fallen for consideration has been aptly summarised by the Court in the order dated 05.03.2014 which has been extracted above. The issue is whether the date of entry into the service in the venture educational institution is relevant or the date of acquiring the eligibility criteria is relevant for the purpose of provincialisation. 18. Sub-Section (1) of Section 4 of the Provincialisation Act provides that services of teaching and non-teaching staff of eligible venture educational institutions would be provincialised and on such provincialisation, they would be deemed to be employees of the State Government with all attending benefits and protections. As per Sub-Section (2) of Section 4, number of employees, both teaching and non-teaching, to be provincialised in each of the venture educational institution should not exceed the number specified in the Schedule appended to the Provincialisation Act. As per Sub-Section (2) of Section 4, number of employees, both teaching and non-teaching, to be provincialised in each of the venture educational institution should not exceed the number specified in the Schedule appended to the Provincialisation Act. However, as per the first proviso to Sub-Section (2), where the number of employees serving in such venture educational institution exceeds the number specified in the Schedule, provincialisation of the services of the employees, both teaching and non-teaching, shall be on the basis of 'seniority' in the respective category in the concerned educational institution. Sub-Section (3) of Section 4 provides that services of teaching or non-teaching employee in a venture educational institution up-to Higher Secondary level shall be considered for provincialisation only if they have the requisite academic and professional qualification prescribed by the relevant Rules at the time of their initial appointment. However, as per the proviso, if an employee is required to acquire any prescribed academic or professional qualification, service of such employees may be considered for provincialisation if otherwise eligible. In such a case, provincialisation would be subject to acquisition of such prescribed qualifications within a period of five years from the date of coming into force of the Provincialisation Act. During this intervening period, such employee may continue to work under the existing terms and conditions under which he was working till his services are provincialised. In case of failure to acquire the required qualification within the stipulated period, service of such employee shall stand terminated with effect from the date of expiry of the stipulated period of five years. 19. Proceeding to the Schedule appended to the Provincialisation Act, it is seen that in a High School having five sections, four posts of Assistant Teacher (Arts) are allotted. In the context of the first proviso to Sub-Section (2) of Section 4, the post of Assistant Teacher (Arts) would form one category. 20. On a careful analysis of the relevant provisions of the Provincialisation Act as noticed above, for a High School having five Sections like the School in question, four posts of Assistant Teacher (Arts) are allotted. In the context of the first proviso to Sub-Section (2) of Section 4, the post of Assistant Teacher (Arts) would form one category. 20. On a careful analysis of the relevant provisions of the Provincialisation Act as noticed above, for a High School having five Sections like the School in question, four posts of Assistant Teacher (Arts) are allotted. As per the first proviso to Section 4(2) of the Provincialisation Act, in case number of employees serving in venture educational institution taken up for provincialisation exceeds the number as specified in the Schedule, provincialisation of the services of the employees shall be on the basis of 'seniority' in the respective category in the concerned educational institution. Thus, from the above, what is discernible is that if there are more employees in a particular category than the allotted strength as per the Schedule, provincialisation will be made on the basis of 'seniority'. 21. If the proviso to Sub-Section (3) of Section 4 is considered, what is evident is that as per Sub-Section (3), possession of requisite qualification is condition precedent for provincialisation. However, an exception is carved out in the proviso thereto. As per the proviso, if an employee does not possess the requisite qualification, his case can still be considered for provincialisation but on the condition that he would have to acquire the prescribed qualification within a period of five years from the date of coming into force of the Provincialisation Act. The Provincialisation Act came into force on publication in the Assam Gazette (Extra-ordinary) on 05.09.2011. Therefore, as per the proviso, those employees who are otherwise eligible for provincialisation but lack the eligibility criteria, they are provided a window of opportunity to acquire such qualification within five years of coming into force of the Provincialisation Act, i.e., by 04.09.2016. 22. On a conjoint reading of the aforesaid provisions, what emerges is that seniority in service is the sine qua non for provincialisation of service. The Provincialisation Act is silent regarding determination of 'seniority' in a venture educational institution. However, in the absence of any provision to determine seniority in a venture educational institution, it may be safe to hold that 'seniority' of an employee of venture educational institution would be reckoned from the date of joining the institution. The Provincialisation Act is silent regarding determination of 'seniority' in a venture educational institution. However, in the absence of any provision to determine seniority in a venture educational institution, it may be safe to hold that 'seniority' of an employee of venture educational institution would be reckoned from the date of joining the institution. Proviso to Sub-Section (3) of Section 4 enables provincialisation of service of an employee who lacks eligibility on the date of provincialisation by providing a grace period of five years to acquire the eligibility. 23. From the above, it is therefore clear that for the purpose of provincialisation, 'seniority' is to be reckoned from the date of entry into the school service and not the date of acquiring the requisite minimum qualification. 24. Having said that, from the affidavit filed by the Director, particularly from the averments made in paragraphs 5, 8, 9 and 10, it is seen that petitioner had joined the School on 01.01.1991 and passed the BA examination in the year 2004 which is prior to coming into force of the Provincialisation Act. 25. On the other hand, respondent No. 5 had joined the School on 10.10.1993 and obtained the BA degree in the year 1997. Likewise, respondent No.6 had joined the School on 07.01.2002 though she had passed the BA examination earlier in the year 2001. Affidavit of the Director is silent regarding contention of respondent Nos.5 and 6 that service of the petitioner was terminated and that he was re-appointed after he had obtained the BA degree. Either way, if the petitioner's date of entry into service of the School is taken as 01.01.1991 or 17.04.1994, he would stand senior to all the four Assistant Teachers (Arts) whose services were sent for provincialisation. As per statement of the Director, one post of Assistant Teacher (Arts) has been kept vacant in terms of the interim order of this Court. 26. In the light of the discussions made above, case of the petitioner for provincialisation is required to be considered afresh by the Commissioner and Secretary to the Govt. of Assam, Elementary Education Department. If in the process of provincialisaiton of the service of the petitioner, service of an incumbent is affected, before passing appropriate order, departmental Commissioner and Secretary shall put such incumbent on notice and thereafter pass appropriate order in accordance with law. of Assam, Elementary Education Department. If in the process of provincialisaiton of the service of the petitioner, service of an incumbent is affected, before passing appropriate order, departmental Commissioner and Secretary shall put such incumbent on notice and thereafter pass appropriate order in accordance with law. This shall be done within a period of two months from the date of receipt of a certified copy of this order. 27. Before parting with the record, it may be noticed that a Full Bench of this Court in Abdul Gafur Mondal v. State of Assam, (2015) 2 GLT 337, had issued a writ of mandamus to the State Government to establish Educational Tribunals at the districts to adjudicate disputes relating to teaching and non-teaching staff of non-Government educational institutions as well as disputes concerning disciplinary action and claim for provincialisation in respect of teaching and non-teaching staff of venture educational institutions. 28. In terms of the aforesaid order, Govt. of Assam in the Education (Elementary) Department had issued notification dated 03.12.2015 designating the Courts of District Judge and Additional District Judge of each district to function as Educational Tribunal to adjudicate the disputes on the above issues within their respective territorial jurisdiction from the date of issue of the said notification. By clarification issued on 02.06.2016, Govt. of Assam has clarified that the aforesaid notification dated 03.12.2015 would be applicable in the case of Secondary and Higher Secondary Education Departments as well. 29. In the light of the above, if any person is aggrieved by such order that may be passed by the departmental Commissioner and Secretary, he/she would be at liberty to approach the appropriate forum as indicated above. 30. Writ petition is allowed to the extent as indicated above.