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2020 DIGILAW 717 (GAU)

Harbansh Ojha v. State of Assam

2020-10-15

M.R.PATHAK

body2020
ORDER : M.R. Pathak, J. 1. Heard Md. Mostafizur Rahman Khandakar, learned counsel for the petitioner and Ms. Papia Chakraborty, learned Standing Counsel, Secondary Education Department, Assam for respondent Nos. 1, 2 and 4. Also heard Mr. Bitupon Deuri, learned Government Advocate, Assam for respondent No. 3. 2. It is contended by the petitioner that the authorities in the Terelangchu High School, Terelangchu No. 1, Lumding, District-Hojai, (erstwhile Nagaon district), (herein after referred to as the said school) by order dated 14.11.1998 (Annexure-1) appointed him as an Assistant Hindi Teacher in that school. Pursuant to the same he joined his service in the said school on 18.11.1998 (Annexure-2) and since then he is serving in it as its Hindi Teacher. 3. Said Terelangchu High School, Lumding is a venture educational institution till date. Petitioner stated that while approving the appointment of the teachers of the said school the Inspector of Schools, Nagaon by his order dated 30.12.2003 also approved his name as an Assistant Teacher (Hindi) of that school since 26.04.1999 (Annexure-3). 4. The petitioner contended that the Headmaster of the school in his application while forwarding the names of the Teachers/Tutors of the said High School for provincialisation of their services under the provisions of the Assam Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2017, the same also contained the name of the petitioner as Assistant Teacher of the school along with the names of other Teachers/Tutors of that school (Annexure-4). 5. However, in the list of eligible teachers/tutors for provincialisation under the said 2017 Act, with regard to said Terelangchu High School, Lumding, published on 18.08.2020 in the website of the Directorate of Secondary Education, Assam (Annexure-4), name of the petitioner did not figure. 6. Petitioner submitted that said list of eligible teachers/tutors for provincialisation under the said 2017 Act pertaining to the Terelangchu High School, Lumding, as published in the website on 18.08.2020, noted above, contains the names of respondents Nos. 7 and 8, namely Baidya Nath Jha and Gopal Bhowmik, Hindi Teachers respectively, as Hindi Tutors of the School showing their dates of joining in the school as on 26.04.1999 and 01.08.2006. 7 and 8, namely Baidya Nath Jha and Gopal Bhowmik, Hindi Teachers respectively, as Hindi Tutors of the School showing their dates of joining in the school as on 26.04.1999 and 01.08.2006. It is also stated by him that respondent No. 8, Gopal Bhowmik, joined the said school only on 01.08.2006, whereas the petitioner joined the said school as Hindi teacher w.e.f. 26.04.1999, the date approved by the Inspector of Schools, Nagaon in his order dated 30.12.2003 (Annexure-3). Petitioner also brought to notice of the Court that the respondent No. 9, namely, Rahima Khatun, who is only a Madhyama Bishard, Hindi Teacher of Lachit Pathar High School of Nagaon District has been notified in the same web site on 18.08.2020 itself to be eligible for provincialisation as a Tutor under the said 2017 Act (Annexure-6). The petitioner stated that he and said respondent No. 9 are similarly placed. 7. The petitioner also stated that on 3.9.2020 he submitted a representation before the Director of Secondary Education, Assam through the Inspector of Schools, Nagaon to consider him as Hindi Teacher/Tutor in the said High School and to provincialise his service (Annexure-7). He submitted that his said representation is still pending for disposal. 8. As the respondents are now contemplating to provincialise the services of the respondent Nos. 7 and 8 as Tutors (Hindi) [Assistant Teachers (Hindi)] of the said school under the said 2017 Act with the Base School Chalana Bapuji High School, disregarding his seniority and better claim and as the respondents have not yet considered his said representation, the petitioner being aggrieved has preferred this writ petition, praying amongst others to provincialise his service under the said 2017 Act as Assistant Teacher/Tutor (Hindi) as has been done in the case of respondent No. 9. 9. To provincialise the services of the teachers of the Venture Educational Institutions as well as to reorganise and streamline the Educational Institutions up to Degree Level so as to conform to the prevailing statutory norms and standards with a further objective to restrict any further growth of such Venture Educational Institutions in the State of Assam, the State Government in the Education Department brought into force the Assam Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2017. The said Act was published in the Assam Gazette on 11.04.2017 and the same was given effect from 5.5.2017 vide Notification dated 6.5.2017, except Sections 4 and 8 of the said 2017 Act. Said Notification dated 06.05.2017 was published in the Assam Gazette on 05.06.2017. 10. Section 2(h) of said 2017 act defines the District Scrutiny Committee and reads as - "District Scrutiny Committee" means the District Scrutiny Committee under Section 12 for each District to recommend names of Venture Educational Institutions along with the names of teachers and tutors whose services are considered eligible for provincialisation under this Act. 11. Section 2(s) of said 2017 act defines the State Level Scrutiny Committee and reads as - "State Level Scrutiny Committee" means the State Level Scrutiny Committee constituted under Section 12(10) to cause physical verification of the institutions as recommended by the District Scrutiny Committee for final recommendation in the matter of provincialisation. 12. Section 13 of said 2017 act relates to District Scrutiny Committee and State Level Scrutiny Committee. Sub-section (1) of said Section 13 provides that - There shall be District Scrutiny Committees in each district separately for Elementary, Secondary and for Higher Education to scrutinise service records and other related issues of serving teachers of Venture Educational Institutions pertaining to provincialisation of their services. Constitution of the District Scrutiny Committees, each for Higher Education, Secondary Education and Elementary Education, have been provided in the Sub-sections (3), (4) and (5) of Section 13 of said 2017 Act, respectively. Functions and duties of such District Scrutiny Committees have been specified in Sub-sections (6), (7) and (8) of Section 13 of the said Act. 13. Sub-section (2) of Section 13 of said 2017 Act provides that - the Deputy Commissioner of the District, by an order, shall constitute the District Scrutiny Committee for the respective district under the Sub-sections (3), (4) and (5) of said Section 13, provided that in case of newly created districts, the Deputy Commissioner of the erstwhile district with the help of Deputy Commissioner of the newly created district shall scrutinise all cases of entire erstwhile district. However, Sub-section (9) of said Section 13 provides that - the State Government may, for reasons to be recorded in writing, by an order re-constitute the District Scrutiny Committee or may change in its composition, if the circumstances warrant, from time to time. 14. However, Sub-section (9) of said Section 13 provides that - the State Government may, for reasons to be recorded in writing, by an order re-constitute the District Scrutiny Committee or may change in its composition, if the circumstances warrant, from time to time. 14. Sub-section (10) of Section 13 of said 2017 Act prescribes the structure of the State Level Scrutiny Committee, which reads as: "there shall be one State Level Scrutiny Committee at State level for verification of recommendation received from the District Scrutiny Committee with following members, namely:- 1 Director of concerned Department of education Chairman. 2 Joint Director/Deputy Director of the concerned Director Member Secretary 3 One representative nominated by the concerned Administrative Department Member. 15. Section 14 of said 2017 Act relates to "Appellate Authority" which reads as - The State Level Scrutiny Committee shall be the appellate authority against any recommendation of the District Scrutiny Committee and the State Government in the concerned administrative department shall be the Appellate Authority against any recommendation of the State Level Scrutiny Committee. 16. Section 2(r) of said 2017 Act defines the 'State Government' which reads as - "State Government" means the State Government of Assam in the concerned Education Department i.e. Elementary Education Department in case of Primary and Upper Primary Schools; Secondary Education Department in case of Secondary, Higher Secondary Schools and Junior Colleges; Higher Education Department in case of Degree Colleges. 17. It is to be noted herein that a Full Bench of this Court by its Judgment and Order dated 11.11.2014 passed in WP(C) No. 2272/2013 (Abdul Gofur Mondal Vs. State of Assam & Ors.), reported in 2015 (2) GLT 337 by issuing a Writ of Mandamus directed the State Government of Assam to establish Educational Tribunals at the districts to adjudicate disputes relating to the teaching and non-teaching staff of the 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. 18. 18. In pursuance of said direction the State Government in the Education Department by Notifications No. ELC/W.P.(C)2272/2013/403/194 dated 03.12.2015 and No. ELC/W.P.(C)2272/2013/403/196 dated 2.6.2016 have constituted Educational Tribunals in the districts of Assam, with the approval of the High Court, designating the Courts of District Judges and Additional District Judges of each district of the State to function as Educational Tribunals so as to adjudicate disputes relating to the teaching and non-teaching staff of the non-government educational institution as well as disputes concerning disciplinary action and claim for provincialisation in respect of teaching and non-teaching staff of venture educational institutions within their respective territorial jurisdiction from the date of issuance of those notifications. 19. From Annexure-5 to this petition, it is seen that it is the State Scrutiny Committee who recommended/approved the names of the Assistant Teachers (Science and Arts) and Hindi Teachers of said Terelangchu High School, Lumding eligible to be the Tutors under the said 2017 Act as published in the web site. Petitioner has also not placed anything before the Court to establish that the concerned District Scrutiny Committee recommended his name to the State Level Scrutiny Committee as eligible for provincialisation as Assistant Teacher/Tutor (Hindi) in the said school under the provisions of the said 2017 Act. 20. It is also to be noted herein that said Terelangchu High School, Lumding has not yet been provincialised and it is still a venture educational institution. But the petitioner neither approached the concerned Educational Tribunal regarding his claim for provincialisation of his service as Assistant Teacher/Tutor (Hindi) in said Terelangchu High School, Lumding, nor preferred any appeal before the State Level Scrutiny Committee against the decision of the concerned District Scrutiny Committee and/or before the State Government of Assam in the Secondary Education Department against the decision of the State Level Scrutiny Committee as provided in Section 14 of the said 2017 Act in not recommending/approving his name as eligible for provincialisation as Assistant Teacher/Tutor (Hindi) in the said school. Further, petitioner's representation dated 03.09.2020 as alleged to have been submitted before the Director of Secondary Education, Assam (Annexure-7) is also not in conformity with the provisions of Section 14 of said 2017 Act. 21. Further, petitioner's representation dated 03.09.2020 as alleged to have been submitted before the Director of Secondary Education, Assam (Annexure-7) is also not in conformity with the provisions of Section 14 of said 2017 Act. 21. As such, without exhausting the remedies he have, including the statutory remedy, i.e., without approaching the concerned Educational Tribunal and without preferring any appeal before the State Government against the decision of the State Level Scrutiny Committee, as provided by the 2017 Act, noted above, the petitioner has approached the Court in this writ petition for redressal of his grievances, praying amongst others for issuance of Writ of Mandamus to the State respondents to provincialise his service by exercising the power under Writ jurisdiction. 22. Hon'ble Supreme Court in the case of L.L. Sudhakar Reddy Vs. State of A.P., reported in (2001) 6 SCC 634 have held that - Certain Courts or Tribunals have exclusive jurisdiction on some specific matters. So, remedy before such Courts or Tribunals must be exhausted before approaching the Writ jurisdiction of High Court for remedy on those matters. 23. In the case of Seth Ratan Chand Vs. Pandit Durga Prasad, reported in (2003) 5 SCC 399 , the Hon'ble Supreme Court have held that - Where the concerned Act provides for remedy against the order passed by the concerned authority by an appeal before the authority concerned, there would be no scope to agitate that matter in Writ jurisdiction. The Hon'ble Apex Court have also held that - When the adequate remedy is available under the Act, Writ petition not to be entertained. [CIT Vs. U.P. Forest Corporation, reported in (1998) 3 SCC 530 ] 24. It is seen that adequate alternate remedies are available to the petitioner, both statutory remedy under the said 2017 Act as well as the concerned Educational Tribunal having exclusive jurisdiction to adjudicate disputes claiming for provincialisation in respect of teaching and non-teaching staff of venture educational institutions, in terms of the law laid down by the Full Bench of this Court in the case of Abdul Gofur (supra). 25. When alternate remedies, laid down by the Court as well as the statutory remedies, noted above, are available with him, the petitioner in this petition did not show any exceptional circumstances in approaching the Writ Court at the first instance for redressal of his grievances. 26. 25. When alternate remedies, laid down by the Court as well as the statutory remedies, noted above, are available with him, the petitioner in this petition did not show any exceptional circumstances in approaching the Writ Court at the first instance for redressal of his grievances. 26. After considering the entire aspects of the matter and for the reasons above, this writ petition is dismissed being not maintainable.