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2017 DIGILAW 460 (GAU)

Mahmuda Begum v. State of Assam

2017-04-19

A.K.GOSWAMI

body2017
JUDGMENT : Arup Kumar Goswami, J. (Oral) Heard Ms. D. Borgohain, learned counsel for the petitioners. Also heard Mr. N. Sarma, learned Standing counsel, Education (Elementary) Department, appearing for respondent Nos. 1 to 4 as well as Mr. B. Gogoi, learned Standing counsel, Department of Finance, appearing for respondent No. 5. 2. The case of the petitioners is that the petitioners were appointed as Third Assistant Teachers in various Lower Primary Schools under Batadrava Education Block, in the District of Nagaon, Assam, and the schools, in which the petitioners are working, had been provincialised under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (hereinafter referred to as "Act of 2011"). 3. The petitioners had challenged the validity of Section 4(2) of the Act of 2011, read with the Schedule to the Act, by filing a writ petition under Article 226 of the Constitution of India, which was registered as WP(C) 6861/2014. By a judgment and order dated 23.09.2016, a Division Bench of this Court had declared the Act of 2011 as unconstitutional by allowing the writ petition filed by the present petitioners along with a bunch of other similar writ petitions. After the aforesaid judgment had been delivered, the petitioner submitted a representation dated 20.10.2016 to the respondent authorities praying for release of their salary for the services rendered by them, which, however, was not attended to. 4. It appears that on the basis of the aforesaid judgment of this Court, whereby the Act of 2011 was struck down that the petitioners are, now, claiming salary from the Government of Assam. 5. Ms. Borgohain has drawn the attention of the Court to paragraph 35 of the aforesaid judgment to contend that the petitioners are entitled to salary from the Government on the touchstone of Article 23 of the Constitution of India. Paragraph 35 of the judgment reads as under: "35. The venture schools which were set up bona fide on need basis, in our perception, do serve the students in remote places and it may not be wrong to say that due to the inability of the State to discharge its constitutional obligations, the venture educational institutions were allowed to function. We may also say that the State has been discharging its constitutional obligation through these venture educational institutions. We may also say that the State has been discharging its constitutional obligation through these venture educational institutions. In this backdrop, when the venture schools are taken over, the government in a sense is taking steps towards discharging is constitutional obligations. However the action of the State in taking over such schools with only a given number of teachers, when the number is not commensurate with the prescribed requirements of the RTE Act (the law framed for implementation of Article 21A), the relevant prescription is absolutely arbitrary. The spirit of Article 21A stands defeated in our perception if the mechanism prescribed under the RTE Act is not conformed to encourage those bona fide elements who have aided the State in discharging its constitutional obligation." 6. A perusal of the aforesaid judgment, particularly the discussion and conclusion part thereof, goes to show that as unconstitutionality was noticed in the major provisions of the Act of 2011 starting from the Preamble to the Schedule to the Act of 2011, the Division Bench observed that striking down of the offending portion would practically de-capacitate the Act of 2011, or, in other words, the statute itself would become inoperable although the ultra vires declaration was limited to some segments of the Act of 2011. In the aforesaid context, the Court had also the occasion to observe that appointment of teachers in the venture institutions is not competition based and is opaque and, therefore, the quality of education is bound to suffer, which would also negatively impact the next generation of our State. It was also noticed that the norms and qualification prescribed by the competent authorities like, UGC, NCTE, SEBA, etc. is major casualty in application of the Act of 2011. In paragraph 39 of the aforesaid judgment, the Court had observed as follows: "39. Therefore, we feel that a piecemeal exercise will not serve the purpose. But at the same time, to suggest how the Provincialisation Act should be re-shaped would be intruding into the domain of the legislature. Moreover amendment exercise might have to be preceded by a consultative process with all the stakeholders and this is surely the responsibility of the State. That apart it is certainly difficult to separate the bad from the good portion of the Provincialisation Act. Moreover amendment exercise might have to be preceded by a consultative process with all the stakeholders and this is surely the responsibility of the State. That apart it is certainly difficult to separate the bad from the good portion of the Provincialisation Act. Under these compulsions, being convinced with the arguments of the petitioners, we declare that the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 is constitutionally invalid. As the State has decided to bring in a fresh legislation, considering the likely time needed for the process, we direct the State to do their exercise as committed in the additional affidavit, expeditiously and preferably in the next 6(six) months. It is ordered accordingly." 7. Mr. N. Sarma, learned Standing counsel, Education (Secondary) Department, has submitted that a fresh Act has been passed by the Assam Legislative Assembly on 10.03.2017 and the same is awaiting assent of the Governor of Assam. 8. I am of the considered opinion that an observation of the Court in the context of striking down of a statue does not afford a cause of action to the petitioners to launch a fresh litigation to claim salary from the State Government when the petitioners were admittedly appointed by the Managing Committees of the venture schools and it was the Managing Committee, who was paying salary to the petitioners. There was no such direction for payment of salary to such persons whose services were not provincialised under the Act of 2011 and the Division Bench in the aforesaid judgment had also directed for bringing in a fresh legislation expeditiously. Any direction to the State, at this moment, for payment of salary to the petitioners at par with other provincialised teachers would, in effect, nullify the order of the Division Bench passed in the aforesaid case as, in that event, there will be no requirement to bring in any fresh legislation in respect of provincialisation of services of the teachers in venture educational institutions. 9. Taking that view, I find no merit in this writ petition and, accordingly, the same is dismissed.