Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 479 (GAU)

Abutalha Samsuzzuha (Md. ) v. State of Assam

2019-04-11

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard by Mr. A. Ali, learned counsel for the appellant led by Mr. AM Mazumdar, learned senior counsel. Also heard Mr. MU Mahmud, learned counsel for respondent No. 8 and Mr. N. Sarma as well as Mr. J. Abedin, learned Standing Counsel, Education (Elementary) Department, Government of Assam for respondent Nos. 1, 2, 4 and 5. None appears for respondent Nos. 3, 6 and 7. 2. The challenge in this writ appeal is to the order dated 19.7.2018 whereby WP(C) No. 3996/2018 and WP(C) No. 4489/2016, filed by the appellant herein, were disposed of noting that if an application is made by the appellant for provincialisation of his service in Bechimari Girls' M.E. Madrassa, the same shall be considered on its own merit and in accordance with the provisions of the Assam Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2017 (for short, hereinafter referred to as 'the 2017 Act'). In essence, prayers made in the writ petitions were not acceded to. 3. Prior to coming into force of the 2017 Act, the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, hereinafter referred to as 'the 2011 Act') was holding the field for provincialisation of services of the employees of venture educational institutions in the State of Assam. The said Act was struck down by this Court by judgment and order dated 23.9.2016 in 2016(5) GLT 296 : WP(C) No. 3190/2012 (Chandan Kumar Neog & Ors. Vs. State of Assam & Ors.). Subsequently, by an order dated 2.1.2017 passed in Review Petition No. 167/2016, the aforesaid judgment and order dated 23.9.2016 was clarified. 4. Both the appellant and the respondent No. 8 are vying for provincialisation of their services and in between them there were several litigations beginning in the year 2013. First in point of time was a writ petition filed by the present respondent No. 8 which was registered as WP(C) No. 2980/2013. Subsequently, there was a writ petition filed by the appellant registered as WP(C) No. 1951/2015 and, thereafter, another writ petition was filed by the respondent No. 8 which was registered as WP(C) No. 6974/2015. 5. Consequent upon directions issued in WP(C) No. 2980/2013, cases of both the appellant and the respondent No. 8 were considered afresh by the District Scrutiny Committee constituted under Section 10 of the 2011 Act. 5. Consequent upon directions issued in WP(C) No. 2980/2013, cases of both the appellant and the respondent No. 8 were considered afresh by the District Scrutiny Committee constituted under Section 10 of the 2011 Act. It is relevant to note at this stage that the service of the appellant had come to be provincialised by an order dated 16.5.2013. WP(C) No. 1951/2015 was filed by the appellant praying for payment of salary and consequent upon the directions issued by this Court vide order dated 9.4.2015 for consideration of the case of the appellant for payment of salary, the respondent authorities passed order dated 30.10.2015 for payment of salary to the appellant. This prompted the respondent No. 8 to approach this Court by filing WP(C) No. 6974/2015. 6. The District Scrutiny Committee in terms of the order dated 15.5.2014 passed in WP(C) No. 2980/2013 had verified the list of teachers working in the school and had noted that the respondent No. 8, who was serving in the school from 3.1.94 was senior to the appellant, who was appointed in the school as an Assistant Teacher, on 30.7.2001. Accordingly, the verified list was forwarded to the Director of Elementary Education, Assam for consideration. WP(C) No. 6974/2015 was disposed of by judgment and order dated 20.11.2015 directing the Director of Elementary Education, Assam to act upon the minutes dated 28.4.2015 of the District Scrutiny Committee, Darrang which was forwarded to him by the District Elementary Education officer, Darrang on 29.9.2015. On due consideration, the Director of Elementary Education passed an order dated 18.7.2016 cancelling the order of provincialisation dated 16.5.2013 and by another order of the same date, had provincialised the services of the respondent No. 8 in place of the present appellant. These two orders were the subject matter of WP(C) No. 4489/2016. In WP(C) No. 3996/2018, challenge was mounted against the minutes dated 28.4.2015 of the District Scrutiny Committee. 7. On consideration of the materials on record and noting that the respondent No. 8 was senior to the appellant, the learned Single Judge had held that there is no infirmity in the orders put to challenge in WP(C) No. 4489/2016. In WP(C) No. 3996/2018, challenge was mounted against the minutes dated 28.4.2015 of the District Scrutiny Committee. 7. On consideration of the materials on record and noting that the respondent No. 8 was senior to the appellant, the learned Single Judge had held that there is no infirmity in the orders put to challenge in WP(C) No. 4489/2016. The learned Single Judge had also noted from a perusal of the minutes of the meeting of the District Scrutiny Committee held on 28.4.2015 that when the case of the present appellant was forwarded for consideration for provincialisation, the materials pertaining to respondent No. 8 were not placed before the District Scrutiny Committee, as a result of which, the case of the present respondent No. 8 was not considered. 8. Mr. A Ali, learned counsel for the appellant has submitted that the appellant was appointed as an Assistant Teacher while the respondent No. 8 was appointed as an Additional Assistant Teacher to teach Section B of Class VI and, therefore, respondent No. 8 cannot be considered to be an Assistant Teacher, which post is notified in the Schedule to the 2011 Act for the purpose of provincialisation. In that light, he contends that though as a matter of fact respondent No. 8 might have joined the school prior in point of time, that by itself is not sufficient to hold that the respondent No. 8 is entitled to provincialisation against the post of Assistant Teacher under the 2011 Act. He has further submitted that this aspect of the matter was not considered by the learned Single Judge and solely on the basis that respondent No. 8 was senior to the appellant, impugned order had come to be passed. It is also contended that no opportunity was granted to the appellant while the District Scrutiny Committee had deliberated upon the matter and, therefore, the recommendation made by the District Scrutiny Committee is also vitiated. 9. Mr. MU Mahmud, learned counsel for respondent No. 8, on the other hand, has submitted that an Additional Assistant Teacher and an Assistant Teacher is one and the same and, therefore, mere nomenclature of the post held by the respondent No. 8 would not disentitle him for consideration for the purpose of provincialisation against the post of Assistant Teacher. 9. Mr. MU Mahmud, learned counsel for respondent No. 8, on the other hand, has submitted that an Additional Assistant Teacher and an Assistant Teacher is one and the same and, therefore, mere nomenclature of the post held by the respondent No. 8 would not disentitle him for consideration for the purpose of provincialisation against the post of Assistant Teacher. In this regard, he has drawn the attention of the Court to the proviso to Section 4(2) of the 2011 Act to contend that provincialisation of services of the employees shall be on the basis of seniority in the respective category in the concerned educational institution. He has tried to impress upon the Court that because of the partisan role played by the Headmaster of the school, the particulars of respondent No. 8 were not forwarded and, therefore, his case had not fallen for consideration and, as a result thereof, the services of the appellant had come to be provincialised. 10. The learned Standing Counsel for the Education (Elementary) Department have supported the impugned order and have contended that because of the fact that the respondent No. 8 was continuing in service in the school much prior in point of time than the appellant, his service was provincialised against the post of Assistant Teacher. They pointed out that under the Schedule to the 2011 Act against the Upper Primary School, there is no category of teacher indicated as Additional Assistant Teacher and therefore, all the teachers other than the teachers teaching Science. Mathematics. Hindi. Arabic and Assamese language have to be treated as falling in the category of Assistant Teacher. 11. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 12. That the respondent No. 8 had joined the school about 8 years prior to the appellant is not in dispute. The argument of Mr. Ali that the respondent No. 8 was not an Assistant Teacher is misconceived. The respondent No. 8, as the appointment order goes to show. was appointed as an Additional Assistant Teacher to teach Class VI Section (B). The Schedule appended to the 2011 Act indicates the maximum number of employees per educational institution whose services shall be provincialized. Ali that the respondent No. 8 was not an Assistant Teacher is misconceived. The respondent No. 8, as the appointment order goes to show. was appointed as an Additional Assistant Teacher to teach Class VI Section (B). The Schedule appended to the 2011 Act indicates the maximum number of employees per educational institution whose services shall be provincialized. In respect of Upper Primary Schools, under the heading 'Category of Staff, the following are indicated: Headmaster, Assistant Teacher, Graduate/Intermediate Teacher (Science & Mathematics), Hindi Teacher in the rank of Assistant Teacher, Arabic Teacher (for M.E.M), Assamese Language Teacher (for non- Assamese Medium school), Grade IV staff. The maximum number of posts for each of the categories are 1, 2, 1, 1, 1, 1, 1 respectively. For mixed school, the maximum number of posts is also indicated. We are, however, not concerned with a mixed school. Thus, services of maximum two Assistant Teachers can be provincialised. 13. The order of provincialisation dated 16.5.2013 indicates that apart from the services of two Assistant Teachers including the present appellant, the Headmaster, Science Teacher, Hindi Teacher and Arabic Teacher were provinciallised. It is an admitted fact that the respondent No. 8 was not appointed by the Managing Committee of the school as a Science or Mathematics Teacher or Hindi Teacher or Arabic Teacher. Had he been appointed in any of the above categories, the case of the respondent No. 8 would have been required to be considered as against the category for which he was appointed. In the category of staff as depicted in the Schedule, the case of the respondent No. 8 fits in only against the category of Assistant Teacher. We agree with the submission of the learned counsel for the respondents that fundamentally there is no difference between an Assistant Teacher and an Additional Assistant Teacher. As the 2011 Act itself had professed to provincialise services of teachers who had been serving in venture schools for at least 7 years, it cannot be countenanced that a teacher serving in the school for more than 20 years would get excluded from the purview of consideration for provincialisation merely because of the fact that the appointment order does not show him/her to have been appointed with a nomenclature as reflected in the Schedule. Any other view or interpretation will frustrate the very purpose for which the 2011 Act was enacted. 14. Any other view or interpretation will frustrate the very purpose for which the 2011 Act was enacted. 14. Section 10 of the 2011 Act does not visualize granting of any opportunity to the persons whose cases are being considered by the District Scrutiny Committee. There was also no direction in the earlier cases directing grant of such opportunity. Therefore, the submission advanced by Mr. Ali regarding violation of the principles of natural justice is without any substance. 15. In that view of the matter, we are of the considered opinion that no interference is called for with the impugned judgment and order. The appeal being devoid of merit, stands dismissed. 16. However, it is reiterated that the case of the appellant may be considered for provincialisation under the 2017 Act if an application is filed as indicated by the learned Single Judge.