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SRI NRIPENDRA SEAL V/S THE STATE OF ASSAM, REPRESENTED BY THE COMMISSIONER & SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION DEPARTMENT (SECONDARY) & OTHERS, decided on Monday, July 10, 2017.
[ In the High Court of Gauhati, WP (C) Nos. 2667 of 2013 & 3348 of 2014. ] 10/07/2017
Judge(s) : MANASH RANJAN PATHAK
Advocate(s) : B. Chakraborty, T.R. Sarma, L. Gogoi, P. Hazarika, P. Mitra, D. Kalita, , Standing Counsel, Government , G.P. Bhowmick, Senior .
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    Cav Judgment & Order:1. Heard Mr. Bijan Chakraborty learned counsel for the petitioner in both the writ petitions and Mr. S Neogi learned Standing Counsel Education Department for respondent Nos. 1 2 & 4 in WP(C) No. 2667 /2013 and for respondent Nos. 1 & 2 in WP(C) No. 3348/2014. Also heard Md. A. Matlib learned Govt. Advocate Assam for respondent No.3 in WP(C) No. 2667/2013 and Mr. Gurupada Bhowmick learned senior counsel assisted by Mr. Deepjyoti Kalita learned counsel for the respondent Nos. 5 & 6 in WP(C) No. 2667/2013 and for respondent Nos. 3 & 4 in WP(C) No. 3348/2014.2. Pursuant to the Managing Committee’s resolution dated 19.02.1993 of Baidyagarh Girls High School Tarani Rangia during its venture stage by order dated 20.2.1993 the petitioner namely Sri Nripendra Seal Graduate in Science with Mathematics and Zoology was appointed as an Assistant Teacher in the said Girls High School and the petitioner accordingly joined the said school in the said capacity on 22.02.1993. Later while the said school was still in venture stage its Managing Committee by a resolution dated 20.08.1994 resolved to appoint the respondent No. 6 another Graduate in Science with Chemistry and Zoology as an Assistant Teacher of said school who joined his said service on 15.09.1994. Such appointment of the petitioner as well as the respondent No. 6 as Assistant Teacher (Science) along with two other Assistant Teachers with B.Sc. of the school were approved by the then Inspector of Schools Kamrup District Circle Guwahati on 04.11.1994.3. When the services of the teaching and non-teaching staffs of said Baidyagarh Girls High School Tarani Rangia was taken up for consideration for provincialisation of services under the provisions of “the Assam Venture Educational Institutions (Provincialisation of Services) Act 2011” amended in 2012 and the Directorate of Secondary Education Assam uploaded the names of the employees of said 2 (two) classes High School found eligible for provincialisation under Section 4(1) of said 2011 Act as amended the petitioner not finding his name as an Assistant Teacher of Science who joined the said school on 22.2.1993 and finding the name of the respondent No. 6 who joined the said school much later than him i.e. on 15.09.1994 along with another Assistant Teacher of Science who joined the school on 02.05.1988 in the website of the said Directorate being aggrieved he filed necessary application in Format ‘B’ before the Director of Secondary Education Assam respondent No. 2 by paying necessary Treasury Challan of Rs.25/- in his favour through the Inspector of Schools Kamrup District Circle Amingaon Guwahati for re-examination and review of his case. As nothing was forthcoming from the side of the Education Department the petitioner preferred W.P.(C) No. 2667/2013 praying for necessary direction to the respondents to quash and set aside the provincialisation of service of the respondent No.6 as an Assistant Teacher (Science) of said Baidyagarh Girls High School and to provincialise his service under the said 2011 Act as amended and in the interim prayed for necessary order restraining the authorities from provincialising the service of the respondent No.6 in said Girls High School.4. This Court in WP(C) 2667/2013 on 20.05.2013 while issuing notice to the respondents in the interim passed an order not to provincialise the service of respondent No. 6 as Assistant Teacher (Science) in said school disregarding the seniority of the petitioner.5. Though notice was duly served on all the respondents excepting the respondent No. 6 the other respondents did not file any affidavit in the matter. The respondent No. 6 in his affidavit contended that the petitioner though joined the said school as an Assistant Teacher (Science) on 22.02.1993 but he did not have the norms i.e. Chemistry in his degree course. It is submitted by him that the Board of Secondary Education Assam (SEBA) on 18.05.1991 informed the authority of said Baidyagarh Girls High School that on scrutiny of records of said school it was found that two B.Sc. Teachers namely Sri Bhupen Chandra Thakuria with Botany Physics and Mathematics and Smti Kanaklata Devi with Botany Zoology and Geography though appointed as science teachers in the school but none of them had chemistry in their Degree course and that the norms of the said Board for B.Sc. teacher in High School had not been fulfilled and as such advised the authority of said school to appoint a B.Sc. teacher with Chemistry in his/her degree course by adjusting the teaching staffs within a month from the date of issue of the said letter. According to the respondent No. 6 the Managing Committee of said School on 16.12.1992 issued an advertisement for the post of Science Graduate Teacher with Chemistry and Mathematics in degree course giving preference to lady candidate and another Science Graduate Teacher with Biology and Mathematics in their degree course. The respondent No. 6 also stated that the Managing Committee of said Baidyagarh Girls High School on 20.03.1994 resolved to re-advertise the post of Assistant Teacher in Science with Chemistry and as per the resolution of the Managing Committee of said school dated 20.08.1994 he was appointed as an Assistant Teacher in said School pursuant to which he joined his service on 15.09.1994.6. In the said affidavit the respondent No. 6 also submitted that the Managing Committee of said school by its resolution dated 25.11.1997 resolved and modified its resolution No. 2 dated 19.02.1993 with regard to the appointment of the petitioner as an Assistant Teacher and decided to portray him as an Assistant Teacher against Class VIII of said school and directed the Headmaster of said school to take appropriate steps in that regard and that by resolution No. 2 the Managing Committee of said school on 26.09.2012 resolved to convert the post of the petitioner as Assistant Teacher (Science) to the vacant post of Craft Teacher.7. On coming to know of those two resolutions of the Managing Committee of said Baidyagarh Girls High School from the affidavit of the respondent No. 6; the petitioner Nripendra Seal preferred the second writ petition being WP(C) No. 3348/2015 challenging the said resolution No. 2 dated 26.09.2012 of the Managing Committee of said school as noted above stating that the petitioner was never informed regarding conversion of him from the post of Assistant Teacher (Science) to the post of Craft Teacher in said school and further stated that before taking such decision the Managing Committee of said school neither gave him any opportunity of hearing nor the said resolution dated 26.09.2012 was communicated to him. It is further submitted by the petitioner that such resolution if at all was adopted by the Managing Committee of said school amounts to depriving him from the benefit of provincialisation of his service as Science Teacher of said school by giving undue advantage to the respondent No. 4 in WP(C) 3348/2015 (respondent No. 6 in WP(C) No. 2667/ 2013). In this regard neither the Managing Committee of said school nor its Headmaster submitted any reply and preferred to remain silent in both the writ petitions.8. The provisions of Section 4(2) and Section 10(4) of “the Assam Venture Educational Institutions (Provincialisation of Services) Act 2011” amended in 2012 provided that a Two Classes High School up to its four sections can have the maximum number of two Assistant Teachers in Science and as per the 1st proviso to Sub-Section 2 of Section 4 of said 2011 Act where the number of such employees serving in such venture educational institution exceeds the number as specified in the schedule of the said act the provincialisation of the services of the employees shall be on the basis of seniority in respective category in the concerned educational institution. Further Sub-Section 3 of Section 4 of said 2011 Act provided that services of a teaching or non-teaching employee in Venture Educational Institution up to Higher Secondary level was to be considered for provincialisation only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment.9. In WP(C) No. 3348/2014 the petitioner has challenged the resolution No. 2 of the Managing Committee of Baidyagarh Girls High School dated 26.09.2012 by which the petitioner’s service was converted from the post of Assistant Teacher (Science Graduate) to the vacant post of Craft Teacher in said school which the petitioner could come to know only from the affidavit filed by the respondent No.6 Dwijen Rajbongshi in WP(C) No. 2667/2013 which was passed behind him in violation of the principles of natural justice and he prayed for setting aside and quash the said resolution.10. As both the writ petitions relate to the dispute of provincialisation of services of the petitioner and the respondent No.6/4 Dwijen Rajbongshi and as agreed to by the parties both the writ petitions are taken up for consideration together.11. It is seen that the petitioner was appointed as an Assistant Teacher (Science) by resolution of the School Managing Committee on 19.02.1993 and as per the amended 1992 Rules of the Assam Secondary Education Provincialisation Service Rules 1982 that came into force with effect from February 1992 for the post of Assistant Teacher in graduate scale (arts/science/commerce) the candidate was required to be only graduate in his/her respective stream and the petitioner being a second class graduate in science fulfilled the criteria laid down for the post of Assistant Teacher (Science) as on 19.2.1993 as per the amended 1992 Rules that was in force at the relevant point of time.12. However during the pendency of these cases in WP(C) No. 3190/2012 (Chandan Kr. Neog and others -Vs- State of Assam and others) and other connected cases disposed of on 23.9.2016 this Court held that “the Assam Venture Educational Institutions (Provincialisation of Services) Act 2011” amended in 2012 as unconstitutional and accordingly set aside and quashed the said 2011 Act. Subsequent to that the State Government in the Education Department enacted the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act 2017 which came into force w.e.f. 11.4.2017 the date on which the said Act was published in the Assam Gazette Extra Ordinary. It is worth mentioning that during the pendency of these two petitions the school in question namely Baidyagarh Girls High School was provincialised under the said 2011 Act excepting one post of Assistant Teacher (Science) because of the interim order passed earlier by this Court on 20.05.2013 in WP(C) 2667/2013 and services of both the petitioner and the respondent No. 6/respondent No. 3 were not provincialisation under the said 2011 Act.13. As provided in Section 2 (j) of the said 2017 Act an ‘employee’ means and includes all serving teachers and tutors as the case may be of a Venture Educational Institutions who have been appointed and joined in the concerned Venture Educational Institution before the 1st day of January 2011 and whose services are being or would be provincialised under the said Act.14. As per Section 2 (p) of the said 2017 Act “provincialisation” means taking over the liabilities for payment of salaries including dearness allowance medical allowances and such other allowances to the teachers and/or tutors as admissible to the Government servant of similar category and gratuity pension leave encashment etc. as admissible under the existing rules to the Government servants serving under the Government of Assam.15. Section 2(q) of the said 2017 Act describes “Provincialised School” and it means an existing provincialised school or college or a Venture Educational Institution wherein the services of teachers and tutors are provincialised under the said Act.16. Section 2(t) of said 2017 Act defines ‘teacher’ and it means Teachers Assistant Teachers Classical Teachers and also includes Lecturers Assistant Professors Associate Professors Professors Principal Vice-Principal Demonstrator Headmaster Assistant Headmaster Superintendent Assistant Superintendent and any person of the teaching faculty working in the Venture Educational Institution having required educational and professional qualification as per norms and standards fixed by the Right of Children to Free and Compulsory Education Act 2009 National Council for Teachers Education Act 1993 University Grants Commission Act 1956 and the relevant rules and regulations framed there under and any other Act as the case may be as applicable on the day of provincialisation and whose services are provincialised under this Act in the post of teacher or in any other post in the teaching faculty but not as tutor under the said Act.17. Section 2 (u) defines “tutor” which means and includes Teachers Assistant Teachers Classical Teachers and also includes Lecturers Assistant Professors Associate Professors Professors Principal Vice-Principal Demonstrator Headmaster Assistant Headmaster Superintendent Assistant Superintendent in a provincialised educational institution under this Act who are not eligible for provincialisation of their services and whose services cannot be provincialised in the post of Teacher under this Act due to lack of his/her educational and professional qualifications required as per the Right of Children to Free and Compulsory Education Act 2009 National Council for Teachers Education Act 1993 University Grants Commission Act 1956 and the relevant rules and regulations framed there under and any other Act as the case may be as applicable on the date of provincialisation however his/her service is provincialised as tutor with separate terms and conditions of service to be notified by the competent Administrative Department.Provided that a tutor shall not be eligible to hold the post of Professor Principal Vice-Principal Headmaster Assistant Headmaster Superintendent Assistant Superintendent as the case may be in an educational institution provincialised under the said Act.18. Section 3 (1 to 10) of 2017 Act provides for eligibility criteria for selection of educational institution for provincialisation of services of teachers/tutors.19. Section 4 (1 and 2) of the 2017 Act provides for teachers/tutors to be government servants.20. Section 6 (1 to 3) 2017 Act provides for educational and professional qualification of teachers whereas Section 7 (1 and 2) of said 2017 Act provides for educational and professional qualification of tutors and;21. Section 8 (1 to 6) of the said 2017 Act provides the terms and conditions of service of such teachers and tutors.22. Section 13 (1 to 12) of said 2017 Act provides for District Scrutiny Committee and State Level Scrutiny Committee and as per sub-sections 10 11 and 12 of said Section 13 there shall be one State Level Scrutiny Committee (SLSC) at State level for verification of recommendation received from the District Scrutiny Committee (DSC) that includes the Director of the concerned Education Department as its Chairman Joint Director/Deputy Director of the concerned Directorate as its Member Secretary and one representative nominated by the concerned Administrative Department as its Member and the SLSC shall have to cause physical verification of all institutions and will also inspect all documents and records and produce before it and call for such other record and documents as may be required for the purpose of causing verification and when there arises difference in between the recommendation of the DSC and the physical verification report caused by the SLSC the matter shall be placed before the SLSC and the decision of the SLSC shall be final.23. Moreover Section 14 of said 2017 Act relates to Appellate Authority which provides that SLSC shall be the appellate authority against any recommendation of the DSC and the State Government in the concerned administrative department shall be the Appellate Authority against any recommendation of the SLSC.24. In the present case name of the petitioner was not uploaded for provincialisation as Assistant Teacher in Science in said Baidyagarh Girls High School as per provision of said 2011 Act and the names of other teaching and non-teaching staffs of said school were already recommended by the then DSC Kamrup district under the provisions of the said 2011 Act and the petitioner’s application in the format ‘B’ with requisite treasury challan of Rs.25/- was pending before the Director of Secondary Education Assam for re-examination and review of his case under the said 2011 Act which is no longer in force.25. Considering the entire aspect of the matter the petitioner herein is directed to submit a fresh representation before the respondent No. 2 the Director of Secondary Education Assam within 30 (thirty) days from this order stating his all grievances regarding provincialisation of his service under the 2017 Act. In the event of filing such representation by the petitioner along with the certified copy of this order and the necessary documents after giving an opportunity of hearing to both the petitioner as well as the respondent No.6 in WP(C) No. 2667 of 2013/respondent No. 4 in WP(C) 3348 of 2014 as well as the Managing Committee of said school on verification of the records of said school including the original proceeding with regard to appointment of the petitioner said respondent No. 6/4 as the case may be and also the attendance registrar of teachers of said school at the pertinent time and the other relevant records the Director of Secondary Education Assam shall consider the said representation of the petitioner in accordance with law and the provisions of the Act 2017 and shall pass a reasoned order within a period of 3 (three) months from the date of receipt of the same intimating the petitioner about the outcome of his said representation. However till such decision of said Director who is also the Chairman of the State Level Scrutiny Committee is arrived at and/or passed; the service of said respondent No. 6 in WP(C) No. 2667/2013 shall not be provincialised under the 2017 Act.26. With regard to WP(C) No. 3348/2014 it is seen that the Managing Committee of the Baidyagarh Girls High School Tarani Rangia though appointed the petitioner by its resolution dated 19.02.1993 as an Assistant Teacher (Science) in said school pursuant to which he joined as Assistant teacher (Science) in the school on 22.02.1993 and that the said resolution of the Managing Committee of the school was duly approved by the then Inspector of Schools Kamrup District Circle Guwahati vide No.15210 dated 04.11.1994 which have not been denied by the respondent Managing Committee as well as the respondent No. 4 Sri Dwijen Rajbongshi therefore the resolution No. 2 dated 26.09.2012 of the Managing Committee of said Baidyagarh Girls High School converting the petitioner’s service from the post of Assistant Teacher (Science) to the Craft Teacher in said school behind him without affording any opportunity of hearing and without communicating the same to him being in violation of principles of natural justice is set aside and quashed.27. With the aforesaid observations and directions WP(C) 2667/2013 stands disposed of and WP(C) 3348/2014 stands allowed.