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2018 DIGILAW 1484 (GAU)

Dilip Das v. State of Assam

2018-10-03

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. SK Goswami, learned counsel for the petitioner and Mr. NJ Khataniar, learned Standing Counsel for Higher Education Department, Government of Assam. 2. The petitioner was appointed on 11.11.1999 as a Grade-IV employee in the Pachim Guwahati Mahavidyalaya after due selection. Upon such appointment, he continued to serve in the institute without any break. 3. The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011) was enacted, which was notified on 05.09.2011. Section 4(1) of the Act of 2011 provides as under:- "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 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. Provided that the services of those employees of the Venture Educational Institutions eligible for provincialisation under Section 3 which have not completed 7 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 completed 7 years of imparting education from the date of such affiliation, recognition, concurrence or permission, as the case may be." 4. Section 4(1) of the Act of 2011 provided that the services of the employees of all eligible venture educational institutions u/s. 3 of the Act shall be deemed to have been provincialised on the date of coming into force of the Act and they shall become employees of the State Government with effect from that date. Section 4(1) of the Act of 2011 provided that the services of the employees of all eligible venture educational institutions u/s. 3 of the Act shall be deemed to have been provincialised on the date of coming into force of the Act and they shall become employees of the State Government with effect from that date. Section 3 of the Act of 2011 provided, amongst others, that the venture educational institutions, which were established and had obtained the required permission or recognition or affiliation or concurrence as the case may be from the respective competent authority on or before 01.01.2006 and had a minimum enrolment of 25 students in the final year of the three years degree course, if it is a degree college, would be eligible for the provincialisation as provided in Section 4(1) of the Act of 2011. Section 3(2) of the Act of 2011 further provided that in case of a degree college, the eligibility criteria specified in sub-section-1 would also have to be satisfied in respect of each of the subjects with or without major as the case may be. Section 3 provided for some further eligibility criteria, which the respective institutions must fulfil in order to avail the benefit of Section 4(1) of the Act. 5. It is stated that the degree college, where the petitioner was appointed and serving, fulfils all the required eligibility criteria prescribed u/s. 3 of the Act of 2011. 6. As already noticed, Section 4(1) of the Act of 2011 provided that the services of the employees of the eligible venture educational institutions shall be deemed to have been provincialised from the date on which the Act came into force and from such date, they become employees of the State Government. The only requirement to be satisfied for such deemed provincialisation is provided under the proviso to Section 4(2) i.e. the number of such employees serving in the venture educational institutions should not exceed the number specified in the schedule to the Act. In other words, a conjoint reading of Section-4(1) and the proviso to Section 4(2) would lead to a conclusion that in the event, an employee of an eligible venture educational institution is within the permissible numbers prescribed in the schedule to the Act, the service of such employees stood provincialised u/s. 4(1) of the Act of 2011 from the given date by operation of law. 7. 7. Section 10(2) of the Act of 2011 further provided that in order to arrive at a conclusion as to whether an employee is within the permissible numbers prescribed in the schedule to the Act of 2011, the District Scrutiny Committee shall forward the verified list of eligible teachers in accordance with the number of posts specified in the schedule to the concerned Director, who shall after making further scrutiny, forward it to the Department of the State Government for consideration for issuing notification in respect of the eligible institutions and employees eligible for getting their services provincialised. Section 10(2) merely provided for the procedure to be adopted by the authorities in determining whether a given employee comes within the purview of the number of posts specified in the schedule and such process does not in any manner requires the State Government authorities to take an administrative decision as to whether the given employee is to be provincialised or not. 8. As already noticed earlier, the service of the concerned employee stood provincialised by operation of law u/s. 4(1) of the Act of 2011 itself and there is no requirement of the authorities in the administrative side to further provincialise the service of the given employee. Provision of Section 10(4) is merely for providing a procedure to be followed by the authorities in arriving at its conclusion as to whether the given employee is within the permissible numbers as provided in the schedule. In the event, the authorities pursuant to such process arrived at a conclusion that the concerned employee is within the permissible number as provided in the schedule, there is no further requirement of issuing any administrative order for provincialising the service of the concerned employee inasmuch as his service already stood provincialised by operation of law u/s. 4(1) of the Act of 2011. Any such order that the authorities may pass, would be only in the nature of an order recognizing the provincialisation of the concerned employee which had already taken place by operation of law and such order of recognition cannot be construed to be an order provincialising his service. 9. Any such order that the authorities may pass, would be only in the nature of an order recognizing the provincialisation of the concerned employee which had already taken place by operation of law and such order of recognition cannot be construed to be an order provincialising his service. 9. It is an admitted position that upon verification of the numbers of the employees of the Pachim Guwahati Mahavidyalaya, the authorities arrived at a conclusion as per Annexure-5 page 16 statement that the petitioner is within the permissible number as provided in the Schedule to the Act of 2011. Once this conclusion is arrived at by the authorities, there is no further requirement of issuing any order to provincialise the service of the petitioner inasmuch as, his service stood provincialised by operation of law u/s. 4(1) of the Act of 2011. 10. In the present case, some other dissatisfied employees of the college had assailed the statement showing the inclusion of the petitioner within the numbers provided in the Schedule, which upon being assailed, was initially stayed by this Court by the order dated 27.05.2013 in WP(C) No. 2908/2013. But, subsequently by the order dated 01.09.2016, the interim order so passed, stood vacated, meaning thereby that the statement including the name of the petitioner within the numbers specified in the Schedule stood as it was. 11. A stand had been taken by the authorities in the Higher Education Department that by the judgment and order dated 23.09.2016 in WP(C) No. 5825/2012, the Act of 2011 was declared to be ultra-vires. According to the learned Standing Counsel for Higher Education Department, it is the view of the Department that as the Act had already been declared ultra-vires, therefore, no further order for provincialisation of the petitioner can be effected by the Department. 12. According to the learned Standing Counsel for Higher Education Department, it is the view of the Department that as the Act had already been declared ultra-vires, therefore, no further order for provincialisation of the petitioner can be effected by the Department. 12. It is taken note of that although by the judgment and order dated 23.09.2016 in WP(C) No. 5825/2012, the Act of 2011 was declared to be ultra-vires, but by a subsequent decision dated 02.01.2017 in Review Petition No. 167/2016, it had been provided that the rights of the employees, who have been benefited under the struck down statute can be taken care of by giving retrospective effect to the proposed legislation, if the legislature so decides and till then, the services of the provincialised category and their status as Government employees shall not be disturbed and they will continue to receive all the benefits which they are getting under the Provincialisation Act of 2011. 13. In the instant case, as already concluded hereinabove, the petitioner being included within the numbers specified in the Schedule and there being no other impediment, his service stood provincialised by operation of law u/s. 4(1) of the act of 2011. Therefore, the case of the petitioner would also be covered by the provision of paragraph-19 of the decision of the Division Bench of this Court dated 02.01.2017 in Review Petition No. 167/2017 and the benefits of provincialisation that accrued to him by operation of law shall remain. 14. In view of the above, as the service of the petitioner stood provincialised u/s. 4(1) of the Act of 2011, the Court is of the view that there is no requirement of any further administrative order by the Department to provincialise his service and all that is required is to recognize that his service already stood provincialised u/s. 4(1) of the Act of 2011 in the facts and circumstance of the present case. 15. 15. It is clarified that this order has been passed upon an interpretation of the provisions of Section 4(1) read with Section 10(4) and the Schedule to the Act of 2011 and has been passed only upon the circumstance that prior to the Act of 2011 being declared ultra-vires, the authorities had already arrived at a conclusion that the petitioner is included within the number of posts under the Schedule to the Act of 2011 and therefore, it being so, his service stood provincialised by operation of law u/s. 4(1) of the Act of 2011. It is also provided that as even the Government had accorded their approval to the aspect that the petitioner came within the number of posts provided in the Schedule before the Act was declared ultra-vires, the provisions of this order be not construed to provide that provincialisation can still go on under the Act of 2011 even in the absence of the situation based upon which this order is passed. 16. With the above observation, this writ petition stands allowed and the petitioner be provided with the benefits of provincialisation from the date on which the Act of 2011 came into force, which is 01.01.2013.