Sujit Paul Choudhury v. The State of Assam and 3 Ors

ORDER Date : 22.04.2024

Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. P. K. Borah, learned standing counsel, Elementary Education Department, appearing on behalf of Respondents No. 1, 2 & 4; and Ms. Deepanjalee Das Barman, learned Addl. Senior Government Advocate, appearing on behalf of Respondent No. 3.

¶2As agreed to by the learned counsels appearing for the parties; this writ petition is taken-up for final consideration and disposal.

¶3The petitioner by way of instituting this present proceedings, has presented a challenge to an order, dated 31.03.2022, passed by the Director, Elementary Education Department, Government of Assam, towards rejecting the case of the petitioner for provincialization of his services both under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011; as well as under the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017; on the ground that the petitioner at the time of his initial appointment in the school, in question, did not have the mandated minimum qualification of Higher Secondary or equivalent passed.

¶4As projected in the writ petition; the petitioner, herein, was appointed as an Assistant Teacher of Chararpar VLP School on 25.04.2008 and the petitioner Page No.# 3/9 had joined his services on 28.04.2008. During the relevant point of time, the school was in its venture stage. Upon enactment of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011; the cases 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 so forwarded for provincialization of his services.

¶5It is contended by the petitioner in the writ petition that on a consideration being made by the Director, Elementary Education Department, Government of Assam, with regard to the proposal as submitted in the case of the petitioner for provincialization of his services; the name of the petitioner was also notified in the website of the respondents and he was denoted to be eligible for provincialization of his services. However, when the provincialization of services of teachers of various primary schools were so effected; the name of the petitioner was dropped from the list and only the services of the Headmaster of the school, in question, came to be provincialized. Upon the setting aside of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 by this Court; the State of Assam had enacted the Assam Education Institutions) Act, 2017.

¶6Accordingly, the case of the petitioner not being considered under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, he instituted a writ petition being WP(c)4724/2021 before this Court. This Court, vide order, dated

22.09.2021, gave a final consideration to the said writ petition and noticing that Page No.# 4/9 2(two) teachers in a Lower Primary School are liable to have their services provincialized and the second post in the school not being so filled-up; directions were issued to consider the case of the petitioner against the second post of teacher in the school by taking note of the provisions of Section 3(1)(x) of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

¶7It is to be noted that this Court, while passing the order, dated

22.09.2021, in WP(c)4724/2021, had noticed that the Assam Education Institutions) Act, 2017, also mandates that services of teachers not having the adequate qualification can also be provincialized, by provincializing their services not as teachers but as tutors with a condition to obtain the necessary qualification within a period of 5(five) years, thereafter.

¶8The consideration as directed to be made by this Court vide order, dated

22.09.2021, passed in WP(c)4724/2021; was so made by the Director, Elementary Education Department, Government of Assam, and vide order, dated

31.03.2022, proceeded to reject the case of the petitioner herein, on the ground that the petitioner at the time of his initial appointment not having acquired the Higher Secondary or equivalent passed; he was not liable to have his services provincialized under the provisions of, either, the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011, or, the Assam Education Institutions) Act, 2017. Accordingly, the case of the petitioner for provincialization of his services, came to be rejected. Page No.# 5/9

¶9A perusal of the order, dated 31.03.2022, reveals that the only ground on which the case of the petitioner was so rejected was that the petitioner did not possess the mandated qualification of Higher Secondary or equivalent passed at the time of his initial appointment, in the venture educational institution.

¶10The case of the petitioner now being required to be so considered under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017; the relevant provisions therein, in this connection, is to be considered.

¶11Section 2(u) of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 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.

¶12Section 6 of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, mandates that services of a teacher in a venture educational institution from primary level upto degree level shall be considered for provincialization against the post of teacher subject to fulfillment of the eligibility criterias relating to educational and professional qualification as laid down under the Acts mentioned therein.

Page No.# 6/9

¶13Section 7 of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 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.

¶14It is further provided under the provisions of Section 7(2) 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.

¶15Considering the order, dated 31.03.2022, in the light of the provisions as noted hereinabove existing in the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017; it is found that the reasoning as advanced in the order, dated 31.03.2022, for rejecting the case of the petitioner, herein, is not in consonance with the prescriptions as made in this connection in the Assam Education Page No.# 7/9 Institutions) Act, 2017.

¶16The provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, does not mandate considering the educational and professional qualification possessed by a teacher working in a 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 under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

¶17The petitioner in the writ petition has contended that he had appeared for the Higher Secondary Level Examination in the month of April, 2014, and cleared the same under the Assam State Open School under the Assam Higher Secondary Education Council. The petitioner in view of the said qualifications as acquired by him satisfies the requisite eligibility criterias as mentioned in the Acts as laid out in the provisions of Section 6(1) of the Assam Education Institutions) Act, 2017, and accordingly, the case of the petitioner was mandated to be considered on merit for provincialization of his services as a "tutor" at least under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

¶18The respondent authorities not having considered the case of the Page No.# 8/9 petitioner as mandated under the provisions of the Assam Education Institutions) Act, 2017, it is found that the order, dated 31.03.2022, was so passed clearly ignoring the provisions as existing in the Assam Education Institutions) Act, 2017, as well as the observations as made by this Court in the order, dated 22.09.2021, passed in WP(c)4724/2021.

¶19In view of the above conclusions; this Court is of the considered view that the order, dated 31.03.2022, cannot be sustained and the same is accordingly interfered with.

¶20In view of the interference made by this Court with the order, dated

31.03.2022, following directions are hereby issued:

(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 his services under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, by bringing on record all requisite particulars including the qualification of Higher Secondary and/or equivalent qualification as possessed by him.

(ii). The Director, Elementary Education Department, Government of Page No.# 9/9 Assam, on receipt of such representation from the petitioner, shall consider the same strictly in accordance with the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, and thereafter, in the event, it is found that the petitioner has acquired the prescribed qualification as mandated under the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017; proceeded to have the case of the petitioner considered in terms of the provisions of the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017, for provincialization of his services as a tutor or teacher as the case may be.

(iii). The exercise as now required to be carried-out in terms of the directions as passed by this Court hereinabove, shall be so 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.

¶21With the above directions and observations, this writ petition stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/9 GAHC010152472022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5020/2022o SUJIToPAULoCHOUDHURY S/OoRAMENDRAoPAULoCHOUDHURY oVILL-PURBAoBAZARI oP.O.-BAZARICHERRA oDIST-KARIMGANJ oASSAM oVERSUS THEoSTATEoOFoASSAMoANDo3oORS. REPRESENTEDoBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoASSAM oEDUCATIONo(ELEMENTARY)oDEPARTMENT oDISPUR oGUWAHATI-06 2:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAMoKAHILIPARAoGUWAHATI-19 o3:THEoDISTRICToSCRUTINYoCOMMITTEE REPRESENTEDoBYoITSoCHAIRMAN oTHEoDEPUTYoCOMMISSIONER oKARIMGANJoDIST-KARIMGANJ oASSAMoPIN-788710 o 4:THEoDISTRICToELEMENTARYoEDUCATIONoOFFICER oKARIMGANJP.O.-KARIMGANJ oDIST-KARIMGANJoASSAMoPIN-788710 o------------ oAdvocateoforo:oMR.oMoKHAN Advocateoforo:oSC oELEM.oEDUoappearingoforoTHEoSTATEoOFoASSAMoANDo3oORS. ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR