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Sailendra Nath Sarma v/s The State of Assam & Others


Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

    Case No. WP(C) 3499 of 2014

    Decided On, 22 January 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SONGKHUPCHUNG SERTO

    For the Petitioner: U.K. Goswami, P.S. Lahkar, N. Pathak, Advocates. For the Respondents: R1, R2 & R3, C. Bhattacharjee, GA, R4, D.K. Sarmah, Advocate, R5, None Appears.



Judgment Text

Judgment

1. Heard Mr. U.K. Goswami, the learned Counsel appearing for the petitioner, Mr. C. Bhattacharjee, learned Government Advocate for the respondent nos.1, 2 & 3 and Mr. D.K. Sarmah, learned counsel for the respondent no.4.

2. The admitted facts of the case are briefly stated as follows: The petitioner was appointed as Assistant Teacher (Science) in the Dharanidhar Vidyapith High School, Nalbari which was then a venture school by an order dated 25.01.1997 issued by the Secretary of the Managing Committee of the School. Soon after the appointment order was issued, the petitioner joined the post on 26.01.1997. There were two other Science Teachers namely Sunil Das and Phukan Ch. Das who were appointed on 02.09.1993 and 10.08.2004 respectively. In the year 2011 the Government of Assam passed an Act called the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 [hereinafter referred to as the Act of 2011]. Under Section 3 and 4 of the Act of 2011, venture schools which were run by private bodies and their employees were to be provincialised provided the schools had completed at least 7 (seven) years of imparting education from the date of affiliation, recognition, concurrence or permission. Dharanidhar Vidyapith High School being eligible under the scheme of the Act of 2011 was considered for provincialisation along with its employees who were within the schedule provided under the Act. Accordingly the District Scrutiny Committee after proper scrutiny recommended provincialisation of the school along with the employees of the school who were permissible for provincialisation under the schedule of the Act. Among the employees recommended for provincialisation Mr. Sunil Das (the senior-most Science Teacher) and the petitioner (second senior-most Science Teacher) were included. On receipt of the recommendation of the District Scrutiny Committee, the State Level Committee once again scrutinized or verified the same and thereafter the State Government published in the website the name of the school and their employees who were eligible for provincialisation. Thereafter necessary orders were issued by the Director of Secondary Education on 17.8.2013. However, the posts of two Science Teachers were kept vacant. The reason for keeping the two posts of Science Teachers was due to the writ petition filed by the third science teacher Mr. Phukan Ch. Das, who was the junior-most among the three Science Teachers. In the writ petition filed by the said teacher being WP(C) 3093/2013, the writ petitioner had prayed for an interim order but the Court had rejected the prayer finding the same to be devoid of any merit. Subsequent to the order of this Court passed on 27.11.2013 wherein the interim order prayer was rejected, the Director of Secondary Education, Assam issued an order dated 29.03.2014 vide his Office Memo No.PC/CC/168/2013/79. In that order it was stated that the service of Sunil Das, Assistant Teacher, Bio-Maths and Sailendra Nath Sarma, Assistant Teacher, Bio-Maths (writ petitioner in this case) are eligible for provincialisation, however due to pendency of the WP(C) 3093/2013 filed by Phukan Ch. Das, it is necessary to keep one post of Science Teacher in the school, therefore, at this stage, the case of Sunil Das, Assistant Teacher, Bio-Maths can be recommended for provincialisation while the post of Science Teacher held by Sailendra Nath Sarma shall be kept vacant till the disposal of the WP(C) 3093/2013. Being aggrieved by the said order of the Director of Secondary Education for not recommending his case for provincialisation, the petitioner has come before this Court.

3. It is submitted by the learned counsel appearing for the petitioner that WP(C) 3093/2013 filed by Mr. Phukan Ch. Das has been disposed of by a Division Bench vide its judgment and order dated 23.09.2016, wherein the Act of 2011 was declared ultra-vires, thereafter, a Review Petition was filed by the State Government, being Review Petition No.167/2016, and in that case it has been decided that the services of those employees who have been provincialised under the Act of 2011 can be protected by a new legislation which was proposed to be brought into by the State Government. Accordingly, the State Government has brought into a new Act namely Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 [hereinafter referred to as the Act of 2017] and in Section 24 of that Act, the services of those employees who were provincialised prior to 23.09.2016 have been protected.

4. The learned Counsel further submitted that the case of the petitioner ought to be considered as the school has already been provincialised in view of the provision of Section 4 of the Act of 2011. In support of his submission, the learned counsel referred to a judgment passed by this Court on 03.10.2018 in WP(C)6804/2017, the facts and circumstances of which is quite similar with the case in hand. The relevant portion of the judgment cited by the learned counsel are paragraphs 9, 10, 11, 12, 13, 14, 15 & 16.

5. The provision of Section 4 of Act of 2011 and the relevant portions of the judgment cited by the learned counsel are re-produced here-in-below:

Section 4(1) of the Act of 2011 provides as under:

'The services of the employees of all eligible Venture Educational Institutions under Section 3 shall be deemed to have ben provincialised on the date of coming into force of this Act and they shall become employees of the State Government with effect from that date, provided such institutions have completed at least 7 years of imparting education from the date of affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act. Provided that the services of those employees of the Venture Educational Institutions eligible for provincialisation under Section 3 which have not completed 7 years of their imparting education from the date of their affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act, shall be provincialised as and when the concerned educational institution completed 7 years of imparting education from the date of such affiliation, recognition, concurrence or permission, as the case may be.'

Relevant portions of the judgment.

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9. It is an admitted position that upon verification of the numbers of the employees of the Pachim Guwahati Mahavidyalaya, the authorities arrived at a conclusion as per Annexure-5 page 16 statement that the petitioner is within the permissible number as provided in the Schedule to the Act of 2011. Once this conclusion is arrived at by the authorities, there is no further requirement of issuing any order to provincialise the service of the petitioner inasmuch as, his service stood provincialised by operation of law u/s 4(1) of the Act of 2011.

10. In the present case, some other dissatisfied employees of the college had assailed the statement showing the inclusion of the petitioner within the numbers provided in the Schedule, which upon being assailed, was initially stayed by this Court by the order dated 27.05.2013 in WP(C) No.2908/2013. But, subsequently by the order dated 01.09.2016, the interim order so passed, stood vacated, meaning thereby that the statement including the name of the petitioner within the numbers specified in the Schedule stood as it was.

11. A stand had been taken by the authorities in the Higher Education Department that by the judgment and order dated 23.09.2016 in WP(C) No.5825/2012, the Act of 2011 was declared to be ultra-vires. According to the learned Standing Counsel for Higher Education Department, it is the view of the Department that as the Act had already been declared ultra-vires, therefore, no further order for provincialisation of the petitioner can be effected by the Department.

12. It is taken note of that although by the judgment and order dated 23.09.2016 in WP(C) No.5825/2012, the Act of 2011 was declared to be ultra-vires, but by a subsequent decision dated 02.01.2017 in Review Petition No.167/2016, it had been provided that the rights of the employees, who have been benefited under the struck down statute can be taken care of by giving retrospective effect to the proposed legislation, if the legislature so decides and till then, the services of the provincialised category and their status as Government employees shall not be disturbed and they will continue to receive all the benefits which they are getting under the Provincialisation Act of 2011.

13. In the instant case, as already concluded hereinabove, the petitioner being included within the numbers specified in the Schedule and there being no other impediment, his service stood provincialised by operation of law u/s 4(1) of the act of 2011. Therefore, the case of the petitioner would also be covered by the provision of paragraph-19 of the decision of the Division Bench of this Court dated 02.01.2017 in Review Petition No.167/2017 and the benefits of provincialisation that accrued to him by operation of law shall remain.

14. In view of the above, as the service of the petitioner stood provincialised u/s 4(1) of the Act of 2011, the Court is of the view that there is no requirement of any further administrative order by the Department to provincialise his service and all that is required is to recognize that his service already stood provincialised u/s 4(1) of the Act of 2011 in the facts and circumstance of the present case.

15. It is clarified that this order has been passed upon an interpretation of the provisions of Section 4(1) read with Section 10(4) and the Schedule to the Act of 2011 and has been passed only upon the circumstance that prior to the Act of 2011 being declared ultra-vires, the authorities had already arrived at a conclusion that the petitioner is included within the number of posts under the Schedule to the Act of 2011 and therefore, it being so, his service stood provincialised by operation of law u/s 4(1) of the Act of 2011. It is also provided that as even the Government had accorded their approval to the aspect that the petitioner came within the number of posts provided in the Schedule before the Act was declared ultra-vires, the provisions of this order be not construed to provide that provincialisation can still go on under the Act of 2011 even in the absence of the situation based upon which this order is passed.

16. With the above observation, this writ petition stands allowed and the petitioner be provided with the benefits of provincialisation from the date on which the Act of 2011 came into force, which is 01.01.2013.'

6. The learned counsel further submitted that in view of the provisions of law cited and the judgment of this Court given above, the respondents be directed to issue necessary orders provincialising the service of the petitioner with effect from 01.01.2013, the date on which the benefits of the Act were given to other employees of the same school.

7. Mr. D.K. Sarmah, learned Counsel appearing for the respondent no.4 (Headmaster of the school) admitted the facts and circumstances as submitted by the petitioner’s counsel and further submitted that the petitioner is indeed eligible for provincialisation since he is the second senior-most Science Teacher of the school.

8. Mr. C. Bhattacharjee, learned counsel appearing for the State respondents submitted in brief that the Review judgment passed by the Division Bench of this Court in Review Petition No.167/2016 did not protect the service of those servants of th

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e institutions who have not been provincialised under the Act of 2011. Therefore, the petitioner in this case can not enjoy the benefit of provincialisation as per the Act of 2011. 9. I have gone through the contents of Section 3 and Section 4 of the Act of 2011 and also gone through the contents of Section 24 of the Act of 2011. I have also gone through the judgment passed in the Review Petition No.167/2016 and the judgment dated 03.10.2018 of this Court passed in WP(C) 6804/2017. Considering the facts and circumstances of the case of the petitioner in WP(C) 6804/2017 and the case of the petitioner in this case, I find that facts and circumstances of the two cases are quite similar. Considering the provisions of Section 4 of the Act of 2011 and the judgment passed in Review Petition NO.167/2016, I am in total agreement with the judgment passed by the Coordinate Bench dated 03.10.2018 in the WP(C) 6804/2017. Therefore, I am of the considered view that the petitioner should be deemed to have been provincialised on the day the other employees were provincialised. Hence the writ petition is allowed and the respondents are directed to issue necessary orders within a period of 2 (two) months from the date of receipt of the copy of this order. 10. Writ petition stands disposed of.
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