THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. AINAL HOQUE AND 6 ORS

Advocate for the Petitioner : DR. B AHMED Advocate for the Respondent : MR. H ALI Linked Case : WP(C)/1849/2021 AINAL HOQUE S/O LATE HASEM ALI R/O VILLAGE BHUTPUKHURI PO NO. 1 PUNIA DIST DARRANG VERSUS THE STATE OF ASSAM AND 6 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM ELEMENTARY EDUCATION DEPARTMENT DISPUR GUWAHATI 06 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 19 3:THE STATE LEVEL SCRUTINY COMMITTEE REPRESENTED BY ITS CHAIRMAN CUM DIRECTOR ELEMENTARY EDUCATION KAHILIPARA GUWAHATI 19 4:THE DISTRICT LEVEL SCRUTINY COMMITTEE REPRESENTED ITS CHAIRMAN CUM DEPUTY COMMISSIONER DARRANG ASSAM 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER DARRANG Page No.# 3/5 DIST DARRANG ASSAM 6:THE HEADMASTER BHUTPUKHURI JANAJAGARAN ME MADRASSA SIALMARA DALGAON 7:SRI HANIF ALI S/O AKBAR ALI VILLAGE BHUTPUKHURI PO NO. 1 PUNIA DIST DARRANG ASSAM 784115 ------------ Advocate for : MR H R A CHOUDHURY Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 6 ORS BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR 11 th August, 2022 ORDER Heard Mr.

H. Ali, learned counsel for the petitioner. Also heard Mr. P.K. Bora, learned standing counsel, Elementary Education Department, for respondent Nos. 1, 2, 3 and 5, Ms. D.D. Barman, learned Government Advocate, appearing on behalf of the respondent No. 4 and Mr. N. Hoque, learned counsel for the respondent No. 7. Bhutpukhuri Janajagaran M.E. Madrassa was established in the year 1990 and the petitioner, on the basis of a resolution dated 20-03-2005, adopted by the Managing Committee of the said school, was appointed as Assistant Teacher (Social studies), to which post the petitioner joined on 21-03-2005. Bhutpukhuri Janajagaran M.E. Madrassa was given recognition on 01-01-2005 and the post held by the petitioner was approved by the concerned authority on 07-03-2017. The State Government has enacted the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (hereinafter referred to as ‘the Act of 2017’).

Page No.# 4/5 In terms of the Act of 2017, the process for provincialisation of teaching and non-teaching staff of Bhutpukhuri Janajagaran M.E. Madrassa was started and, thereafter, the District Scrutiny Committee, in its report, recommended the case of the petitioner and the respondent No. 7 along with two other teachers for provincialisation. However, the State Scrutiny Committee did not consider the case of the petitioner, as recommended by the District Scrutiny Committee and instead, provincialised the service of the respondent No. 7 by order dated 05-02-2021, issued by the Director, Elementary Education, Assam. It is the case of the petitioner that Bhutpukhuri Janajagaran M.E. Madrassa, in which the petitioner is teaching, has enrolment of 163 students in Class-V to Class-VII for the year 2016 and 190 students for the year 2015. The learned counsel for the petitioner, therefore, submits that in terms of Section Section 3(i)(XI) of the Act of 2017 the said school requires four teachers as stipulated in the Schedule under Sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009.

However, this aspect was not considered by the State Scrutiny Committee and, therefore, grave injustice has been done to the petitioner. Section 14 of the Act of 2017 provides for an appeal before the State Government against any recommendation made by the State Scrutiny Committee. Accordingly, the petitioner is directed to file an appeal as provided under Section 14 of the Act of 2017 before the respondent No.1/Secretary of Elementary Education Department, Assam, within a period of 15 days from today. Thereafter, on receipt of the appeal, the Secretary to the Government of Assam, Education (Elementary) Department, shall hear the petitioner as well as the respondent No. 7, in person, and pass appropriate order in accordance with law, within a period of two months from the date of receipt of the appeal. Page No.# 5/5 While considering the appeal, the respondent No. 1 shall also take into consideration Section 3(i)(11) of the Act of 2017 and also the stipulation of the Schedule under Sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009. The interim order passed on 25-03-2021 stands vacated. With the above observations and directions this writ petition as well as the connected I.A. (Civil) No. 1619/2022 stand disposed of. JUDGE Comparing Assistant