Ayesha Begum v. The State of Assam and 3 Ors

ORDER Date : 03.10.2024

¶1Heard Mr. P.K. Deka, learned counsel for the petitioner.

¶2Also heard Mr. P.K. Bora, learned standing counsel, Elementary Education Department, for the respondent Nos. 1, 2 & 4 and Mr. P. Saikia, learned Government Advocate for the respondent No. 3.

¶3By this writ petition, the petitioner is challenging the Order, dated 24th August, 2022, issued by the Director of Elementary Education Department, Government of Assam, whereby the claim of the petitioner for provincialization of her service under the Assam Education (Provincialization of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (the Act of 2017 in short), has been rejected on the ground that the petitioner, at the time of her initial appointment in Barkhala VLP School, did not have the required minimum qualification of Higher Secondary or equivalent pass.

¶4The petitioner was appointed as Assistant Teacher in Barkhala VLP School, to which post she joined on the same date. During the relevant point of time, the school in question was in the venture stage. After the enactment of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 (the Act of 2011 in short), the case of the eligible serving teachers of the said school was taken up for consideration for provincialization of their services and accordingly, the case of the petitioner was also forwarded for provincialization of Page No.# 3/7 her service.

¶5It is the case of the petitioner that on a consideration being made by the Director of Elementary Education Department, Government of Assam with regard to the proposal submitted in respect of the petitioner for provincialization of her service, the name of the petitioner was also notified in the Website of the respondents and she was found to be eligible for provincialization of her service. However, when the provincialization of services of the serving teachers in various primary schools were affected, the name of the petitioner was dropped from the list and only the service of the Headmaster of the school in question was provincialized. In the meantime, the Act of 2011 was set aside and thereafter, the Act of 2017 was enacted.

¶6As the case of the petitioner was not considered for provincialization of her service in terms of the Act of 2017, the petitioner approached this Court by filing WP(C) No. 5459/2021, which was disposed of by Order dated 07.10.2021 and the relevant portion reads as under : "2. The petitioner was appointed as an Assistant Teacher in the Barkhala VLP School on 01.01.2009. Although some other teachers of the school have been provincialized under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 but at that time, the claim of the petitioner was not given its consideration. Subsequently, the claim of the petitioner for provincialization was considered under the Assam Education (Provincialization of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 resulting in the recommendation made by the District Scrutiny Committee of Karimganj district which is forwarded by the District Elementary Education Officer, Karimganj to the Director of Elementary Education, Assam by the communication dated 14.06.2019. In the list of teachers enclosed therein, the name of the petitioner finds place in the Serial No. 5.

¶3As the District Scrutiny Committee had made recommendation in favour of the Page No.# 4/7 petitioner, we are of the view that the interest of justice will be served on a direction if issued to the Director of Elementary Education to bring the recommendation to its logical end.

¶4The requirement be done within a period of two months from the date of receipt of the certified copy of the order."

¶7Thereafter, the Director of Elementary Education Department, Government of Assam, passed the Order dated 24th August, 2022, which is being impugned in the present writ petition.

¶8A perusal of the Order, dated 24th August, 2024, issued by the Director of Elementary Education Department, Government of Assam/Respondent No. 2, would indicate that the only ground, on which the case of the petitioner was rejected, was that the petitioner did not possess the required qualification of Higher Secondary or equivalent pass at the time of her initial appointment in the said venture educational institution.

¶9As the case of the petitioner is now required to be considered for provincialisation of her service under the Act of 2017. The relevant provisions of the said Act of 2017 will have to be considered.

¶10Section 2(u) of the Act of 2017, defines a "tutor" to mean and include a teacher whose services cannot be provincialized as a teacher under the Act due to lack of his/her educational and professional qualification required as per the Right of Children to Free and Compulsory Education Act, 2009, as well as the National Council for Teachers Education Act, 1993 and the relevant rules and regulations framed thereunder.

¶11Section 6 of the Act of 2017, mandates that services of a teacher in a venture educational institution from primary level upto degree level shall be Page No.# 5/7 considered for provincialization against the post of teacher subject to fulfilment of the eligibility criterias relating to educational and professional qualification as laid down under the Acts mentioned therein.

¶12Section 7 of the Act of 2017, relating to "tutors" mandates that a person provincialized in his/her services as a "tutor" must acquire the prescribed educational and professional qualification within a period of 5(five) years from the date of publication of the provincialization order in the official gazette of services of the teacher and/tutor of the concerned venture educational institution and it is only after upon acquiring such required qualification, their services shall be upgraded to the post of teacher in the appropriate cadre.

¶13It is further provided under the provisions of Section 7(2) of the Act of 2017 that if such "tutor" fails to acquire such prescribed qualification within a period of 5(five) years from the date of publication of the order of provincialization in the official gazette, their services shall not be considered for upgradation to the post of teacher after the lapse of 5(five) years from the date of the publication of the provincialization order in the official gazette and they shall continue to function as "tutor" as per the same terms and conditions which were applicable to them before provincialization of the concerned venture educational institutions.

¶14Considering the Order dated 24.08.2022 in the light of the provisions of the Act of 2017 discussed hereinabove, it is found that the reasons, given in the Order dated 24.08.2022 in rejecting the case of the petitioner, is not in terms of the provisions of the Act of 2017.

¶15The provisions of the Act of 2017, does not mandate considering the educational and professional qualification possessed by a teacher working in a Page No.# 6/7 venture educational institution on the date of his/her initial appointment but mandates that such qualification shall be considered as on the date when the case of such teacher is considered for provincialization of his/her services.

¶16The learned counsel for the petitioner submits that the petitioner had passed her HSLC Examination in the year 2013 and D.El.Ed. Examination in the year 2019. The petitioner, in view of the passing her HSLC Examination in the year 2013 and D.El.Ed. Examination in the year 2019, therefore, had acquired the required qualification in terms of Section 6(1) of the Act of 2017. The service of the petitioner is required for provincialization as a Tutor under the Act of 2017.

¶17As the case of the petitioner has not been considered in terms of the provisions of the Act of 2017, this Court finds that the Order, dated 24th August, 2024, passed by the Respondent No. 2, has been passed clearly ignoring the provisions of the Act of 2017 as well as the observations made by this Court in the Order, dated 07.10.2021, passed in WP(C) No. 5459/2021.

¶18In view of the discussions made hereinabove, this Court is of the considered opinion that the Order, dated 24th August, 2022, stands vitiated and the same is, accordingly, set aside and quashed.

¶19The writ petition is, accordingly, disposed of with the following the directions :

(i). The petitioner is directed to submit a detailed representation before the Director, Elementary Education Department, Government of Assam, within a period of 30(thirty) days from today and therein, stake a claim for provincialization of her services under the provisions of the Act of 2017, by bringing on record all requisite particulars pertaining to Higher Secondary Page No.# 7/7 and/or equivalent qualification as well as her D.El.Ed. qualification as acquired by her.

(ii). The Director, Elementary Education Department, Government of Assam, on receipt of such representation from the petitioner, shall consider the same strictly in accordance with the provisions of the Act of 2017, and thereafter, in the event, it is found that the petitioner has acquired the prescribed qualification as mandated under the provisions of the Act of 2017 shall proceed to have the case of the petitioner considered in terms of the provisions of the Act of 2017, for provincialization of her services as a tutor or teacher as the case may be.

(iii). The exercise as directed by this Court hereinabove, shall be initiated and completed by the Director, Elementary Education Department, Assam, within a period of 3(three) months from the date of receipt of the representation to be submitted by the petitioner along with a certified copy of this order.

¶20With the above directions and observations, this writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010197782024 ooooooo 2024:GAU-AS:10102 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/4964/2024ooooooooo AYESHAoBEGUMo W/O-oHIFZURoRAHMAN,oVILL-oGULALKANDI,oP.O.-oBAZARGHAT,oP.S.o RATABARI,oPIN-o788733,oDISTRICT-oKARIMGANJ,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDo3oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oEDUCATIONoDEPARTMENTo(ELEMENTARY),o DISPUR,oGUWAHATI-6 2:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-19 3:DISTRICToSCRUTINYoCOMMITTEE oREPRESENTEDoBYoITSoCHAIRMAN oDIST.-oKARIMGANJ oASSAM oPIN-o788710 4:THEoDISTRICToELEMENTARYoEDUCATIONoOFFICER oKARIMGANJ oDIST.-oKARIMGANJ oASSAM oPIN-o78871o AdvocateoforotheoPetitionerooooo:oMR.oIoHoLASKAR,oMR.oPoKoDEKA,MR.oR.oKARIM,MRoJoHo LASKARo Page No.# 2/7 Advocate for the Respondent : SC, ELEM. EDU, BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR