High Court of Assam · 2025

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PEGU SON OF NANDA PEGU RESIDENT OF 2 NO.CHELAJAN GAON P.O.-GUGAMUKH Page No.# 16/26 P.S.-GUGAMUKH DIST-DHEMAJI ASSAM 84: SRI PADMESWAR DOLEY SON OF LATE DASHIRAM DOLEY RESIDENT OF TAJIK GAON P.O.-GUGAMUKH P.S.-GUGAMUKH DIST-DHEMAJI ASSAM 85: SRI MULUK DOLEY SON OF BUDURAM DOLEY RESIDENT OF CHANANG GAON P.O.-PHUL KATA DIST-LAKHIMPUR ASSAM 86: SRI DHARMA KT. DOLEY SON OF LATE MOHAN PEGU RESIDENT OF LIGIAMUKH CHANANG GAON P.O.-DABALAKATA DIST-LAKHIMPUR ASSAM 87: SRI BABUL PEGU SON OF KULAGUTI PEGU RESIDENT OF MAJOR CHAPORI P.O.-ACHERAKATA BALIJAN P.S.-PANIGAON DIST-LAKHIMPUR ASSA VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, SACHIVALAYA, DISPUR, ASSAM, PIN- 781006 2:THE DIRECTOR ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHAT Advocate for the Petitioner : MR S BORTHAKUR, MR P H KONWAR Advocate for the Respondent : SC, ELEM. EDU, Page No.# 17/26 BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY JUDGMENT & ORDER (ORAL) Date : 06-03-2025

1. Heard Mr. S. Borthakur, learned counsel for the petitioners and Mr. B. Kaushik, learned Standing counsel, Elementary Education Department, Assam for the respondent Nos. 1 & 2.

2. The services of the petitioners herein were provincialised as ‘Tutors’ under the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Education Institution) Act, 2017 (hereinafter referred to as the Act, 2017).The grievance of the petitioners is that their services could not have been provincialised as ‘Tutors’ rather their services ought to have been provincialised as ‘Teachers.’

3. It is not disputed by Mr. Borthakur, learned counsel for the petitioners that in terms of Section 4 of the Act 2017, the services of any teacher/tutor etc., provincialised under the aforesaid Act 2017, will take effect from the publication of order of the provincialisation in the Official Gazette.

4. It is also not disputed that on the date of publication of such Notification of provincialization of services of the petitioners as Tutors, the petitioners, though were having all other qualifications but were not having the TET qualification and for this reason, the services of the petitioners were provincialised as Tutors instead of Teachers.

5. It is the argument of Mr. Borthakur, learned counsel for the petitioners that such action on the part of the respondent authorities is not legally sustainable, in view of certain prescriptions made under the National Council for Teachers Education Act, 1993 (as Page No.# 18/26 amended) (hereinafter referred to as the NCTE Act, 1993) as well as the Rules and Regulations and the Notification framed thereunder.

6. Referring to Section 12 A of the NCTE Act 1993, Mr. Borthakur, learned counsel for the petitioners contends that the National Council For Teacher Education (hereinafter referred to as NCTE) is empowered to frame regulation, determine qualification for persons being recruited as teachers in any Primary, Upper Primary, Pre-Primary Secondary, Senior Secondary schools and all the intermediate Schools or Colleges (by whatever name it is called). It is the contention of Mr. Borthakur that in terms of Section 2 (ka) of the NCTE Act, 1993 (as amended), a school which is not receiving any aid or grant to meet whole or part of its expenses from the State Government, Central Government or a local authority, also comes under definition of a school and therefore, the venture schools of the petitioners shall also come under the definition of schools as well as shall be governed by the NCTE Act and Rules framed thereunder.

7. According to Mr. Borthakur, the requirement of the TET certificate is exempted for those teachers, who entered into service of a school prior to 03.09.2001 in terms of the Notification dated 23.08.2010, which prescribes the minimum qualification for being appointed as teachers in classes I-VIII, to which category the petitioners belong. As the petitioners' schools are under the purview of the NCTE Act’1993 and the petitioners entered into service at the venture stage prior to the aforesaid cutoff date, when TET was not made mandatory, the petitioners are entitled for provincialization as Teachers and not as Tutors inasmuch as such teachers are protected.

8. Referring to Section 2 (t) of the Act, 2017, which deals with the definition of ‘Teacher’, Mr. Borthakur, contends that a person is treated to be a teacher, when said teacher enters into the service at the venture stage having required qualification under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE, Act, 2009) and NCTE Act, 1993 etc. and the relevant rules and regulation framed thereunder, a harmonious construction of these Acts, i.e., RTE Act, 2009 NCTE Act and the Act, 2017 is necessary. According to him, it is not in dispute that the petitioners did have required qualification at the relevant point of time, when they entered into service at the venture stage of their respective Page No.# 19/26 schools under the aforesaid provisions of law and therefore, the petitioners could not be treated as Tutors, more particularly, for the reasons that they were having required qualification on the date of entry in their schools at venture stage in terms of the provision of Section 2 (t) of the Act 2017.

9. According to Mr. Borthakur, learned counsel for the petitioners that a harmonious construction of the provisions prescribed under the Act, 2009, the Act, 1993 as well as the rules and regulations framed thereunder with the ACT, 2017 is required so that the object of the Act 2017 to provincialise the services of those teachers, who have been serving in venture schools imparting education in primary/upper primary level and has been playing a role to achieve the goal of right to education, which is now a fundamental right recognized under the Constitution. According to the learned Counsel for the petitioners, if it is harmoniously constructed that the educational qualification required under Section 2 (t) of the Act 2017 is relatable to the date on which the petitioners entered into service at venture stage taking note of the statutory notification dated 23.08.2010, the same shall suppress the mischief that has been meted out to the petitioners and shall advance remedy as mandated under all these Acts. In this regard Mr. Borthakur, learned counsel places reliance on the judgment of the Hon’ble Apex Court passed in the case of Reserve Bank of Indiain & others Vs. Peerless General Finance and Investment Co.Ltd. and others reported in (1987) 1 SCC 424

10. Par contra, Mr. Kaushik, learned Standing counsel, Elementary Education Department contends that in the backdrop of an admitted fact that the petitioners were not having the required TET qualification on the date of issuance of the notification for provincialisation under Section 4 of the Act 2017, the respondent authority has rightly provincialised their services as Tutors in strict adherence of the Act, 2017.

11. In this context, referring to the provision of Section 2 (t) of the Act, 2017, which defines ‘Teacher,’ Mr. Kaushik, learned Standing counsel, Elementary Education Department contends that there is no un-ambiguity in Section 2 (t) of the Act, 2017 that a teacher must have the required qualification on the date of provincialisation and therefore, the arguments of Mr. Borthakur, that Section 2 (t) of the Act, 2017 prescribes acquisition of the required Page No.# 20/26 qualification on the date of entry into the school at venture stage, is not sustainable on the face of the definition of the Teacher under Sections 2 (t) & Tutor under Section 2 (u) of the Act, 2017.

12. It is also contended by Mr. Kaushik, learned Standing counsel, Elementary Education Department that legislature in its wisdom intentionally created a separate class of teachers as Tutors and definition of Tutors under Section 2 (u) of the Act, 2017 clearly shows that these teachers are those teachers who are lacking educational and professional qualification on the date of provincialisation inasmuch as the object of the Act, 2017 is to provincialise the services of qualified teachers on the date of provincialisation as teachers and those not having the required qualification are to be provincialised as Tutors. According to him, under Section 8 (3) of the Act, 2017, a time period of 5 (five) years is given to such Tutors for acquiring such qualification and get upgraded to the post of teacher. Therefore, according to Mr. Kaushik, learned Standing counsel, Elementary Education Department, even if it is accepted that NCTE Act, 1993 and the relevant rules are applicable in case of teacher, then also the principle Act under which provincialisation is made is the Act of 2017 and the prescription made is required to be adhered. Therefore, this writ petition should be dismissed.

13. Referring to the object to the Act, 2017, Mr. Kaushik, learned Standing counsel further argues that from the object, it is clear that intention of the legislature is not only to provincialise the services of the teachers but to provincialise the services of teachers those who are having required qualification as prescribed under law.

14. This Court has given anxious consideration to the argument advanced by the learned counsel for the parties. Perused the provision of the Acts cited at the bar. In the backdrop of arguments, lets this Court first consider the relevant provisions of the NCTE Act’1993, the RTE Act’ 2009 and the Act’ 2017.

15. The parliament enacted the RTE Act, 2009 on 04.08.2009. The object of the said Act’2009 is to fix the procedure and modalities for implementation of free and compulsory education for children aged between 6 to 16 years as mandated under Article 21 (A) of the Constitution of India. This Act was given effect on 1st April, 2010. Page No.# 21/26

16. Section 23(1) of the RTE Act, 2009 provides that any person possessing any such minimum qualification, as laid down by an academic authority, authorized by the Central Government, by Notification, shall be eligible for appointment as teachers.

17. The NCTE Act, 1993 was enacted to provide for establishment of NCTE with a view to achieve planned and coordinated development of teachers’ education system throughout the country. The further object was to regulate and maintain the norms and standards in the teacher’s education system and for matters connected therewith.

18. Pursuant to the enactment of RTE Act, 2009, the NCTE Act, 1993 was amended and a Section namely 12 A was inserted empowering NCTE to determine minimum standards of education of school teachers. Thus, NCTE is recognized as the authority under Section 23 (1) of the RTE Act, 2009.

19. Accordingly, NCTE issued the Notification dated 23.08.2010 prescribing the minimum qualification for being appointed as Teachers including teachers for classes I-VIII to which category the petitioners belong. In terms of said Notification, amongst other, a candidate must pass Teacher Eligibility Test (TET) conducted by the appropriate government to be appointed as a primary school teacher. Clause 4(C) of the aforesaid notification dated

23.08.2010 clarifies that such qualification does not apply to a teacher appointed prior to

03.09.2001 following the prevalent Recruitment Rules.

20. Mr. Borthakur, learned counsel for the petitioners is correct in saying that under Clause 4 (C) of the Notification dated 23.08.2010, the acquisition of qualification of TET is waived for those teachers appointed in accordance with prevalent Recruitment Rules before

03.09.2001. However, to consider the arguments of the learned counsel for the petitioners that in view of such provision, the petitioners are not required to obtain TET for being provincialised as teachers, this Court is to look into the provisions of the Act’2017, under which the petitioners are claiming/granted benefit of provincialisation.

21. Now coming to the provisions of the Act 2017, the object of Act’2017, as declared, amongst others, firstly, is to provincialise the services of teachers of venture educational institutes subject to certain conditions prescribed under the Act’2017 and secondly, to re- Page No.# 22/26 organize and streamline the venture educational institutions upto degree level in Assam to confirm to the prevailing statutory norms and standards. Thus, from the aforesaid, it is clear that one of the objects is to maintain the standard of education in terms of prevailing statutory norms. As recorded herein above, the prevailing statutory norms in the present litigation shall be the norms under RTE Act, 2009 as well as NCTE Act, 1993, the Assam Secondary Education Provincialisation Act, 2012 and the Rules and the Notifications framed thereunder as on the date of provincialisation.

22. The definition of ‘teacher’ under Section 2 (t) of the Act, 2017, so far the same relates to a teacher of upper primary school, such teacher is required to have qualification prescribed under the RTE Act, 2009 as well as the NCTE, 1993 and the relevant rules and regulation framed thereunder as applicable on the day of provincialisation. Therefore, there is no ambiguity under Section 2 (t) of the Act 2017 that required qualification to come under the definition of teacher, the persons must have the required qualification prescribed under the Acts and Rules as enumerated in Section 2 (t) of the Act 2017 itself on the date of provincialisation, not on the date of entering into the service as a teacher into the school at its venture stage. The object of the Act, 2017 as recorded hereinabove also emphasizes on the standard of education prevailing on the date of the enactment of the Act, 2017.

23. Section 4 of the Act, 2017 clarifies that subject to fulfillment of other provisions prescribed under the Act 2017, the Tutor/Teacher shall become an employee of the State with effect from the date of publication of the Notification of provincialisation in the Official Gazette.

24. A bare reading of Section 6 (1) of the Act’ 2017 further clarifies that the service of a teacher in a venture school shall be considered for provincialisation subject to fulfillment of eligibility criteria relating to educational and professional qualification as laid down under the RTE, 2009 and the rules framed thereunder, the NCTE Act, 1993 and the rules framed thereunder and the Assam Secondary Education (Provincialised) Service Rules, 2003 as amended in 2012 etc.

25. Section 6(2) of the Act’2017 also clarifies that when a teacher does not have the Page No.# 23/26 requisite academic and professional qualifications, prescribed under the relevant Acts, as enumerated under Section 6(1) of the Act’2017, services of such teachers will not be provincialised as teachers, though their services shall be provincialised as Tutors.

26. The aforesaid provision is also relatable to the definition of Tutor given under Section 2 (u) of the Act’2017, which creates a new class of Teachers, (Assistant Teacher, Classical Teacher etc.), whose services could not be provincialised as teachers for want of the educational and professional qualifications as prescribed.

27. Thus, the intention of the legislature is very clear and loud that it intends to create two sets of teachers, one who are having required educational & professional qualification in terms of the provisions prescribed under the Act’ 2017 as on the date of provincialisation and as enumerated and recorded hereinabove, and those teachers, who are not having required educational and professional qualification but shall be provincialised as Tutors.

28. The intention of the legislature that educational and professional qualification is required on the date of provincialisation is further clarified from Sections 7 & 8 of the Act, 2017, which grants an opportunity to the Tutors to obtain required educational and professional qualification within a period of 5 years and in the event, such a Tutor acquires such educational and professional qualification, which he/she lacked at the time of provincialisation, the services of such Tutor shall be provincialised as Teacher.

29. Therefore, this Court is of the considered opinion that as per mandate of the Act’ 2017, to get the service provinicalised, the petitioners must have the required educational & professional qualifications on the date of provincialisation. In the case in hand, admittedly, on the date of issuance of the Notification under Section 4 of the Act, 2017, the petitioners were not having the TET qualification, which is a prescribed qualification prevailing on such date. Therefore, from this point of view, this Court cannot find fault with the authorities in provincialising the services of the petitioners as Tutors.

30. Now let this Court deal with the arguments of Mr. Borthakur, learned counsel for the petitioners as regards harmonious construction. Page No.# 24/26

31. This Court has no doubt in its mind that ‘interpretation’ must depend on the text and the context and that the interpretation which makes the textual interpretation matches the context, is the best interpretation.

32. A statute is best interpreted when it is clear why it was enacted. In the present case, this Court had already concluded clearly as regards the object of the Act,2017, which includes that to be provincialised as teacher, the incumbent must have the educational and professional qualifications prescribed and prevailing as on the date of issuance of the Notification under Section 4 of the Act, 2017.

33. Though the context is provincialisation of service but from the unambiguous text of Sections 2 (t), 2 (u), 4, 6,7 and 8 of the Act, 2017, it is clear that another object and context is to have qualified teacher as per the Act and the rules enumerated in the Act’2017 and as on the date of provincialisation. Now, if this Court looks into the NCTE Act’ 1993, one of the objects is to create an institution which can look into the standard of imparting education inasmuch as such authority is statutorily empowered to prescribe the qualification for being appointed as teacher, which has accordingly been prescribed under the Notification dated

23.08.2010 and in that notification, TET is made a mandatory qualification, though an exemption is given to those teachers who entered into the services in terms of the relevant rules prior to 03.09.2001.

34. Such exemption granted under Clause 4 (C) of the Notification is for a teacher who had already entered into the service of a school and who continues to be so. Thus, object of such exemption is to protect the services of the existing teachers who entered into service prior to 03.09.2001 in the respective schools as defined under Section 2 (ka) of the Act, 1993 including governed or managed by local authorities or private schools. However, such exemption shall not be available to a teacher of a venture school, who wants to have the benefit of becoming a teacher of a provincialised school, more particularly, for the reason that on being provincialised, such teacher shall enter into Govt. fold. Therefore, it cannot be said that the provincialisation shall mean continuation of service under Government. Further, as recorded hereinabove, the intention of the legislature in enacting the Act, 2017 is loud and clear that a teacher having required qualification as on the date of provincialisation shall only Page No.# 25/26 be provincialised as Teachers and otherwise as Tutors. Such proposition advanced by Mr. Borthakur, shall be applicable to a teacher of venture/private schools, who entered into service prior to 03.09.2001, and continued to be so and is sought to be deprive of this right by the management for not having required qualification in terms of the Notification dated

23.08.2010. In the case in hand, there is a change of status of the petitioners from being a venture school teacher to a Government School teacher (Tutor) by virtue of the Act, 2017 and therefore, the prescription made under such Act, 2017 as regards the date of acquisition of qualification shall prevail. If the argument of Mr. Borthakur is accepted, the same shall lead to an interpretation of Clause 4(C) of the Notification dated 23.08.2010, that such clause is meant to protect the previous service in venture schools for the purpose of grant of benefit under the Act’2017, which in the considered opinion shall defeat the very objects of both the Act’2017 and Clause 4(c) of the Notification dated 23.08.2010 issued by the NCTE.

35. Therefore, for the reasons recorded herein above, this Court is of the unhesitant view that there is no illegality in treating the petitioners as Tutors instead of Teachers. However, this order shall not be a bar to regularizing them as Teachers, if they acquire the requisite qualification within the prescribed period of 5 (five) years. Accordingly, the writ petitions stand dismissed.

36. At this stage, Mr. Borthakur learned counsel for the petitioners submits that though the petitioners are given time to obtain the qualification of TET, however, the petitioners are having no control over holding of such TET inasmuch as it is the State who is to conduct a special TET for the Tutors, who lacks the qualification. According to him, Special TETs for different categories of teachers had already been held by the State and therefore, a direction may be issued to the State to hold a special TET for the Tutors, who lack such qualification, but otherwise have the required educational and professional qualifications.

37. This Court cannot issue such a direction in the present petition inasmuch as there is no pleading or alternative prayer in the petition to that effect. However, the petitioners shall always be at liberty to raise their grievances before the Competent Authority, if they so desire. This Court will not further proceed or comment in this regard in the present petition and the same may be considered at an appropriate time in appropriate proceedings, if such issues are raised or agitated or necessity arises.

38. Needless to say that this order shall not also be a bar for the petitioners to obtain any benefit in terms of the determination made by the Division Bench, in Mohor Ali Sheikh & Ors. vs State of Assam & Anr. reported in 2024 5 GLT 689. Page No.# 26/26 JUDGE Comparing Assistant