Bhupen Dihingia v. The State of Assam and 4 Othrs

ORDER Date : 13.12.2023

Heard Ms. R. Devi, learned counsel for the petitioner.

The service of the petitioner in the present proceeding was provincialized as Tutor(Science) in Borbari Koneng M.E. School, Lakhimpur, vide order, dated

05.02.2021, and the petitioner in terms thereof, had joined his service. While continuing in such provincialized service, the petitioner received an order, dated

10.11.2022, issued by the Director, Elementary Education Department, Government of Assam, by which, in view of the interim direction passed by the Court on

28.02.2020, in WP(c)1483/2020, the provincialization effected in his case, was withdrawn. The petitioner, thereafter, approached this Court by instituting an interlocutory application being IA(c)2771/2023(in WP(c)1483/2020), praying for modification/vacation of the interim order, dated 28.02.2020, passed in WP(c)1483/2020. This Court, vide order, dated 04.10.2023, after hearing the parties, allowed the said interlocutory application with the following order: "Heard Ms. R Devi, learned counsel for the applicant. Also heard Mr. J Payeng, learned counsel for the writ petitioner Umeswari Doley and Mr. B Kaushik, learned counsel for the Elementary Education Department of Government of Assam.

¶2The writ petitioner Umeswari Doley has assailed the provincialisation of Durna Kt Kounch and Bhupen Dihingia on the ground that as per the order of appointment the writ petitioner is senior to both the teachers.

¶3Bhupen Dihingia has instituted this interlocutory application for vacating the interim order dated

28.02.2020 by which the provincialisation of Durna Kt Kounch and Bhupen Dihingia were stayed on the ground that Bhupen Dihingia is a Science Teacher in the school and to substantiate, the order of appointment available as Annexure-B page-18 to the interlocutory application is referred.

¶4Mr. J Payeng, learned counsel for the writ petitioner Umeswari Doley fairly states that Umeswari Doley is an Arts Teacher in the school having the qualification of Bachelors of Arts and is not a Science Teacher. Page No.# 5/7

¶5Section 3(1)(xi) of the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 provides that one teacher each in the subject of Language, Social Studies and Science and Mathematics would be provincialised.

¶6As the respective claim for provincialisation of the writ petitioner Umeswari Doley and the applicant Bhupen Dihingia are not interconnected with each other where Bhupen Dihingia has an independent legal right to be provincialised as a Science Teacher whereas Upeswari Doley may claim a legal right to be provincialised as a teacher in subject Language or Social Studies, we are of the view that the interim order dated 28.02.2020 in respect of the applicant Bhupen Dihingia is required to be modified.

¶7Accordingly, it stands partially modified and the interim order now be applicable only in respect of the respondent no. 8 Durna Kt Kounch and shall not be applicable in respect of the applicant Bhupen Dihingia. Consequence of the modified interim order be made applicable to Mr. Bhupen Dihingia. I.A. stands allowed as indicated above."

The learned counsel for the petitioner submits that in view of the order, dated 04.10.2023, the basis for passing of the order, dated 10.11.2022, stands removed and the order, dated 28.02.2020, has been rendered unsustainable, requiring the same to be interfered by this Court. I have heard the learned counsels appearing for the parties and also perused the materials placed on record.

The petitioner's provincialization was challenged by one Smti. Umeswari Doley by instituting the writ petition being WP(c)1483/2020, in which case, this Court, vide order, dated 28.02.2020, was pleased while issuing notice, to direct that the services of the petitioner in this proceeding and one another shall not be provincialized in the post of Assistant Teacher in Borbari Koneng M.E. School, Lakhimpur.

Page No.# 6/7 The petitioner in the present proceeding was respondent No. 8 in WP(c)1483/2020.The records of WP(c)1483/2020 reveals that an interlocutory application being IA(c)2771/2023 was filed by the petitioner, herein, as applicant, praying for modification/vacation of the interim order, dated 28.02.2020 passed in WP(c)1483/2020. This Court, vide order, dated 04.10.2023, was pleased to modify the said order, dated 28.02.2020, and by directing that the said order would only be applicable in the case of other respondent i.e. respondent No. 7 and will not be applicable in the case of the applicant/present petitioner.

In that view of the matter; the order, dated 10.11.2022, issued by the Director, Elementary Education Department, Government of Assam, having been passed only in view of the directions passed by this Court in the order, dated

28.02.2020(in WP(c)1483/2020); the said direction itself having been modified by this Court vide order, dated 04.10.2023, passed in IA(c)2771/2023, and having held that the said order will not be applicable to the case of the present petitioner; the circumstance under which the order, dated 10.11.2022 was passed, stands altered. The provincialization of services of the petitioner stands and accordingly, he is entitled to receive all benefits flowing therefrom. Accordingly, in view of the conclusions of this Court contained in the order, dated 04.10.2023, passed in IA(c)2771/2023(in WP(c)1483/2020), the impugned order, dated 10.11.2022, stands interfered with.

The order, dated 10.11.2022, having been interfered with, the petitioner is entitled to all the benefits accruing on account of the provincialization of his services vide order, dated 05.02.2021. The petitioner shall be deemed to be in service w.e.f. 05.02.2021, continuously. The petitioner shall be reinstated in service Page No.# 7/7 forthwith.

The petitioner shall also be deemed to be in service w.e.f. 10.11.2022 and the pay of the petitioner in arrears w.e.f. 10.11.2022, be computed and released to him.

The arrears of pay of the petitioner be computed and released to him within a period of 3(three) months from the date of receipt of a certified copy of this order.

With the above directions, the writ petition stands allowed to the extent, as indicated above.

JUDGE Comparing Assistant

Page No.# 1/7 GAHC010029662023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/818/2023 BHUPEN DIHINGIA S/O. LT. BHURAM GOGOI, VILL. DHOLPETA, P.O. KEKURI, P.S. DHAKUAKHANA, DIST. LAKHIMPUR, ASSAM, PIN-787055. VERSUS THE STATE OF ASSAM AND 4 OTHRS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPT., DISPUR, GUWAHATI-06. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 3:THE DEPUTY INSPECTOR OF SCHOOLS DHAKUAKHANA LAKHIMPUR. 4:THE HEAD MASTER BORBARI KONENG M.E. SCHOOL LAKHIMPUR. 5:SMT. UMESWARI DOLEY W/O. TULAN PEGU VILL. BORBARI P.O. JALBHARI P.S. DHAKUAKHANA DIST. LAKHIMPUR Advocate for the Petitioner : MRS. R DEVI Advocate for the Respondent : SC, ELEM. EDU Linked Case : WP(C)/1483/2020 UMESWARI DOLEY W/O. TULAN PEGU VILL. BORBARI P.O. JALBHARI P.S. DHAKUWAKHANA DIST. LAKHIMPUR PIN-787055. Page No.# 2/7 VERSUS THE STATE OF ASSAM AND 7 ORS. REP. BY THE SECRETARY TO THE GOVT. OF ASSAM EDUCATION DEPTT. (ELEMENTARY) DISPUR ASSAM GHY.-06. 2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019. 3:THE DISTRICT LEVEL SCRUTINY COMMITTEE REP. BY THE DY. COMMISSIONER NORTH LAKHIMPUR ASSAM. 4:THE DIST. ELEMENTARY EDUCATION OFFICERLAKHIMPUR DIST. NORTH LAKHIMPUR ASSAM PIN-787001. 5:THE BLOCK ELEMENTARY EDUCATION OFFICER BORDOLONI (GHILAMORA) DIST. NORTH LAKHIMPUR ASSAM. 6:JIBAN PEGU HEADMASTER BORBARI KONENG M.E. SCHOOL VILL. AND P.O. BORBARI P.S. DHAKUAKHANA DIST. NORTH LAKHIMPUR PIN-787055. 7:DURNA KT KONCH S/O. LT. TILESWAR KONCH VILL. BHURTAL P.O. JALBHARI P.S. DHAKUWAKHANA DIST. LAKHIMPUR PIN-787055. 8:BHUPEN DIHINGIA P.O. SONARI CHAPORI P.S. DHAKUWAKHANA DIST. NORTH LAKHIMPUR ASSAM PIN-787055. ------------ Advocate for : MR J PAYENG Advocate for : SC EDU appearing for THE STATE OF ASSAM AND 7 ORS. Linked Case : I.A.(Civil)/2771/2023 BHUPEN DIHINGIA S/O LATE BHURAM GOGOI R/O VILL. DHOLPETA Page No.# 3/7 P.O. KEKURI P.S. DHAKUWAKHANA DIST. LAKHIMPUR ASSAM PIN-787055. VERSUS UMESWARI DOLEY AND 7 ORS. W/O. TULAN PEGU VILL. BORBARI P.O. JALBHARI P.S. DHAKUWAKHANA DIST. LAKHIMPUR ASSAM PIN-787055. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM EDUCATION DEPTT. (ELEMENTARY) DISPUR ASSAM GHY.-06. 3:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019. 4:THE DISTRICT LEVEL SCRUTINY COMMITTEE REP. BY THE DY. COMMISSIONER NORTH LAKHIMPUR ASSAM. 5:THE DIST. ELEMENTARY EDUCATION OFFICER LAKHIMPUR DIST. NORTH LAKHIMPUR ASSAM PIN-787001. 6:THE BLOCK ELEMENTARY EDUCATION OFFICER BORDOLONI (GHILAMORA) DIST. NORTH LAKHIMPUR ASSAM. 7:JIBAN PEGU HEADMASTER BORBARI KONENG M.E. SCHOOL VILL. AND P.O. BORBARI P.S. DHAKUAKHANA DIST. NORTH LAKHIMPUR PIN-787055. 8:DURNA KT KONCH S/O. LT. TILESWAR KONCH VILL. BHURTAL P.O. JALBHARI P.S. DHAKUWAKHANA DIST. LAKHIMPUR PIN-787055. ------------ Advocate for : MRS. R DEVI Advocate for : SC ELEM. EDU appearing for UMESWARI DOLEY AND 7 ORS. Page No.# 4/7 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR