ABDUL AWAL v. The State Of Assam

Order

- 01.04.2025 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN JUDGEMENT & ORDER (CAV) Heard Mr. M. R. Khandakar, learned counsel for the petitioner and Mr. U. Sarma, learned counsel for the respondent Nos. 1,2 4 and Mr. B. Deuri,

learned counsel for the respondent No.3.

2. In this petition, under Article 226 of the Constitution of India, the petitioner namely, Abdul Awal, prayed for setting aside and quashing the order dated

06.08.2024, passed by the respondent No.2, wherein the State Level Scrutiny Committee (SLSC) did not recommend the name of the petitioner to the higher authorities for provincialisation of his service as Assistant Teacher (Arts) in Namargaon High School, on the ground of not having requisite academic qualification without recommending his name as tutor as per recommendation made by the concerned District Scrutiny Committee in violation of provision of Section 6(2)/7 of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Page No.# 3/14 Educational Institutions) Act, 2017 ( In short ‘the Act of 2017’) as amended in 2018 and also to direct the State Level Scrutiny Committee to recommend the name of the petitioner to the higher authority for provincialisation of his service as tutor in Namargaon High School instead of Assistant Teacher as recommended by the District Scrutiny Committee as per provision of Section 6 (2)/7 of the Assam Education (Provincialisation of Services of Teachers and Re- organization of Educational Institutions) Act, 2017. In terms of the provision of the Assam Secondary Education (Provincialised) Service Rules, 1982.

3. The back ground fact leading to filing of the present writ petition is briefly stated as under:- “The petitioner was appointed on 01.05.1993, Assistant Teacher, in Namargaon High School and he passed P.U. examination in the year 1988, and B.A. examination in the year

2016. In due course, his name was recommended for provincialisation as Assistant Teacher in the said school. But, the respondent No.2, vide order dated 06.01.2016, had rejected his claim on the ground of under qualification. Thereafter, being aggrieved the petitioner had preferred one writ petition, being WP(C) No. 581/2016, wherein this Court vide order dated

05.12.2017, was pleased to set aside the order dated 06.01.2016, and further directed to the respondent No.2, to reconsider the case of the petitioner under the new Act of 2017. Thereafter, the District Scrutiny Committee, Dhubri in its meeting held on

28.08.2019, recommended his name to the State Level Scrutiny Committee for provincialisation of service of the petitioner as tutor, under the Act of 2017, instead of Assistant Teacher in terms of the Page No.# 4/14 order of the respondent No.2, dated 06.02.2018, But said recommendation was not considered by the respondent No. 2. Being aggrieved, again the petitioner had filed another writ petition being WP(C) No. 88/2022, and this Court vide order dated

07.01.2022, was pleased to dispose of the same directing the respondent No.2, to pass consequential reasoned order on the recommendation of the District Scrutiny Committee (DSC) but the respondent No.2, vide impugned speaking order dated

08.03.2022, had rejected the claim of the petitioner for provincialisation of his service as tutor in terms of section 4(2)(iii) of the Act of 2017, on the ground that he passed B.A. in the year

2016. Thereafter, the petitioner again preferred one writ petition being WP(C) No. 8205/2022, challenging the order dated 08.03.2022 and thereafter, vide order dated 07.09.2023, was pleased to set aside the impugned order, dated 08.03.2022, and remanded the matter back to the respondent No.2 for passing a reasoned order by taking note of the qualification prescribed under Section 6 of the Act of 2017. But, the respondent No.2, had failed to comply with the order of this Court for which he has instituted a contempt case being Cont.Cas(C) No. 721/2023, and during the pendency of the said contempt case the respondent No.2, passed the order dated 02.01.2024, rejecting the claim of the petitioner on the same ground. But, subsequently, vide speaking order dated 18.05.2024, he had recalled the same and stated that the case of the petitioner be placed before the State Level Scrutiny Committee (SLSC). But, vide impugned order dated Page No.# 5/14

06.08.2024, again the respondent No.2, has rejected the recommendation of the name of the petitioner for provincialisation of service as Assistant Teacher, on the same ground without recommending his name for provincialisation of his service as Tutor instead of Assistant Teacher under Section 6(2)/7 of the Act of 2017, and in terms of provincialisation Rules of 1982.”

4. Being aggrieved, the petitioner approaches this Court praying for the relief, as aforesaid.

5. The respondent authorities have not filed their affidavit-in-opposition. But, the learned standing counsel has produced the written instruction, dated

11.02.2025, which he had received from the respondent No.2 i.e. the Director of Secondary Education, Assam, wherein a stand has been taken that Namargaon High School was provincialised with effect from 01.01.2013, and the service of the petitioner could not be provincialised as he did not possess the requisite educational qualification. After the provincialistion Act 2011 was repealed on

23.09.2016 by a Coordinate Bench of this Court in WP(C) No. 3190/2012, petitioner had applied for provincialisation of his service under the 2017 Act. But, the petitioner had failed to fulfill the requisite criteria i.e. academic qualification for provincialisation of service as laid down in Section 6(1)(c) of the Act of 2017, which provides that to provincialise the service of the incumbent, he or she must fulfill the requisite educational qualification as prescribed in the ‘The Assam Secondary Education (Provincialised) Service Rules, 2003 as amended in 2018. It is also stated that Section 4(2) (iii) provides that the incumbent must have rendered at least six years continous service as on

01.01.2017 from the date of joining in the concerned venture educational institution which must be on 31.12.2010 or prior to that, but the petitioner did Page No.# 6/14 not possess requisite educational qualification on 31.12.2020.

6. Mr. Khandakar, learned counsel for the petitioner submits that repeatedly on same ground the respondent No.2, has been rejecting the claim of the petitioner for provincialisation of his service as tutor. Mr. Khandakar, submits that the petitioner has never applied for the post of Assistant Teacher,instead he had applied for the post of Tutor and his name was recommended by the District Level Committee for provincialisation of his service as Tutor. But the respondent No.2, and the State Level Scrutiny Committee without consideration of the same, repeatedly rejecting the claim of the petitioner by misinterpreting the provision of the law.

6.1. Mr. Khandakar, further submits that the claim of the petitioner lies under Section 6(2) of Assam Education (Provincialisation of Service of Teachers and Re-organization of Educational Institutions) Act, 2017, which provides that the service of teaching employee in a venture educational institution shall be considered for provincialisation as teacher only if they have the requisite academic and professional qualification prescribed under the relevant Acts/Rules or Regulations as mentioned in sub-section 1 of this Section which are applicable for the time being in force, otherwise their services shall be provincialised as tutor and the present petitioner had passed P.U. examination in the year 1988, and he was appointed in the year 1993, as Assistant Teacher at that relevant point of time, his appointment was governed by the Assam Secondary Education (Provincialised) Service Rules, 1982 and as such, he had the requisite qualification for appointment to the post of Junior Teacher under Grade-VI Cadre and Class in a high school.

6.2. But, Mr. Khandakar submits in terms of Section 6(2) and Section 7 of the Act of 2017, the petitioner is entitled to provincialisation of his service as tutor in Page No.# 7/14 the concerned high school and as such, impugned order, dated 06.08.2024, issued by the respondent No.2, is illegal and arbitrary and is contrary to the provision of Section 6 (2) and (7) of the Act of 2017, and the provision of provincialisation Rules 1982, and therefore, Mr. Khandakar, has contended that the impugned order is a nullity in the eye of law and therefore, it is contended to set it aside.

7. On the other hand, Mr. U. Sarma, learned counsel for the respondent Nos. 1,2 & 4 submits that the petitioner is not entitled to provincialisation of his service as he lacks requisite qualification for being appointed as Assistant Teacher in the Namargaon High School and that he also lacks the requisite experience of six years of continuous service as on 01.01.2017, and he did not have the requisite qualification on 31.12.2010, and on such count the impugned order suffers from no illegality or impropriety requiring interference of this Court and accordingly, it is contended to dismiss the petition.

8. Mr. B. Deuri, learned counsel for the respondent No.3, also subscribe the submissions, so advanced by Mr. U. Sarma, learned counsel for the respondent Nos. 1,2& 4.

9. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the relevant provision of law, i.e. Section 6(2) and 7 of the Act of 2017 and also perused the impugned order dated 06.08.2024.

10. For proper appreciation of the arguments, so advanced at the bar, this Court deemed it appropriate to reproduce the impugned order dated 06.08.2024, which read as under:-

10. ORDER Page No.# 8/14 “Seen and Perused the Hon'ble Gauhati High Court's order dated 07.09.2023 passed in WP(C) No.8205/2022 (filed by Abdul Awal, District Dhubri) wherein the Hon'ble Court has set aside the Order dated 08.03.2022, passed by this Directorate and the matter is remanded back to the Director of Secondary Education for passing a reasoned order taking note of the qualification prescribed under section 6 of the Act of 2017 and examine as to whether the petitioner do have the qualification prescribed therein and accordingly pass a reasoned order. Accordingly, the matter of provincialisation of the petitioner of the instant case was placed before the State Level Scrutiny Committee. The said Committee did not recommend the name of the petitioner, Abdul Awal as Assistant Teacher (Arts) in Namargaon High School, District: Dhubri, on the ground of not having requisite academic qualification for provincialisation as laid down under section 6(1)(C) of the Provincialisation Act of 2017 as he had acquired his B.A. Degree in the year 2016. Thus the Hon'ble Gauhati High Court's order dated 07.09.2023 passed in WP(C) No.8205/2022 (filed by Abdul Awal) has been complied with.”

11. A bare perusal of the impugned order, dated 06.08.2024, indicates that the matter of provincialisation of service of the petitioner was placed before the State Level Scrutiny Committee and the said committee has not recommend the name of the petitioner as Assistant Teacher (Arts) in Namargaon High School, Page No.# 9/14 District Dhubri on the ground of not having requisite academic qualification for provincialisation, as laid down under Section 6 (1) (C) of the Act of 2017, as he had acquired B.A degree in the year 2016.

12. In this context, it would be appropriate to reproduce Section 6 (1) (C) of the Assam Education (Provincialisation of Services of Teachers and Re- organization of Educational Institutions) Act of 2017, which read as under:- “6. Educational and Professional qualification of teachers:- The services of teachers in a Venture Educational Institution service from the Primary level up to the Degree Level, shall be considered for provincialisation in the post of teachers or relevant teaching faculty in appropriate nomenclature, as the case may be, subject to fulfillment of the eligibility criteria relating to educational and professional qualifications as laid down under the following Acts, Rules and Regulations:- (a) The Right of Children to Free and Compulsory Education Act, 2009 (Central Act No. 35 of 2009) and its Rules; (b) The National Council for Teachers Education Act, 1993 (Central Act No. 73 of 1993) and its Regulations in force at the time of provincialisation of services; (c) The Assam Secondary Education (Provincialised) Service Rules, 2003, as amended in 2012; Page No.# 10/14 (d) The University Grants Commission Act, 1956 (Central Ad No. 3 of 1956) and University Grants Commission Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010, framed thereunder, as the case may be. (2) The services of a teaching employee in a Venture Educational Institution shall be considered for provincialisation as teacher only if they have the requisite academic and professional qualifications prescribed under the relevant Acts, Rules or Regulations as mentioned in sub-section (1) of this section which are applicable for the time being in force, otherwise their services shall be provincialized as tutor. (3) In case of teachers for special subjects like Sanskrit, Arabic, the scope Hindi, Craft Teacher, Music Teacher, and any other Classical Teachers, the qualification should be as per the qualification prescribed by the relevant statutory Rules of the State Government in force.”

13. But, the pleaded case of the petitioner is that he had applied for the post of tutor, not the post of teacher, and his case is covered by Section 6 (2), which provides that services of a teaching employee in a Venture Educational Institution shall be considered for provincialisation as teacher only if they have the requisite academic and professional qualifications prescribed under the relevant Acts, Rules or Regulations as mentioned in sub-section (1) of this section which are applicable for the time being in force, otherwise their services Page No.# 11/14 shall be provincialised as tutor, not by Section 6 (1)(C). Mr. Khandakar, learned counsel for the petitioner has rightly pointed out at the time of argument and I find substance in his submission. It also appears from the another speaking order dated 18.05.2024 passed by the respondent No.2, by which the matter was referred to the State Level Scrutiny Committee, that the respondent No. 2 had highlighted the requirement of the Section 6(2) of the Act of 2017. But, this aspect eschewed consideration of the State Level Scrutiny Committee and perhaps this happened due to want of time to peruse the section completely or the committee had failed to comprehend the meaning of the Section, notwithstanding the case of the petitioner being highlighted by the respondent No.2 in the speaking order dated 18.05.2014. And more interestingly, the respondent No. 2 herself is the Chairman of the said State Level Scrutiny Committee. This is how the system is being reduced to a mockery. This aspect has to be brought to the notice of the Commissioner, Department of School Education (Secondary), Dispur.

14. It is to be noted here that Section 7 of the Act of 2017 provides for educational and professional qualification of tutor Sub-section (1) provides that the tutor must acquire prescribed educational and professional qualification within a period of five years from the date of publication of the order of provincialisation of service of the teachers and or tutors of the concerned Venture Educational Institution in the official gazette and after acquirement of required qualification, this shall be up graded to post of teacher in appropriate cadre. Sub-section (2) provides 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 provincialisation in the official gazette, their cases shall not be Page No.# 12/14 considered for up gradation to the post of teacher after the lapse of five years from the date of publication of the provincialisation order in the official gazette and they shall continue to function as tutor as per same terms and conditions which are applicable to them before provincialisation of the concerned Venture Educational Institution.

15. Mr. Khandakar, the learned counsel for the petitioner has brought to the notice of this Court in a finding recorded by a Co-ordinate Bench of this Court in the order dated 05.12.2017, in WP(C) No. 581/2016, that the petitioner passed the pre university (special) examination in 1988 conducted by the Gauhati University, he fulfills the requisite criteria for his appointment as junior teacher of the High School at the time of his appointment on 01.05.1993 in the said School. And besides his service was not provincialised and he also fulfills the requisite qualification under the Act of 2017 and then also his service was not provincialised and the poor petitioner is running from pillar to post seeking justice and each time the respondents authorities have been making travesty of the same and therefore, Mr. Khandakar has contended to take the matter seriously.

16. There appears to be substance in the submission of Mr. Khandakar. The petitioner herein has applied for the post of tutor and he also possesses the required educational and professional qualification for being appointed as a tutor. It is also to be noted here that admittedly the petitioner had acquired B.A. degree in the year 2016, more than 9 (nine) years back. On such count, rejection of his prayer for provincialisation of service as teacher for non- fulfillment of the requirement of Section 6 (1)(C) seems to be illegal and arbitrary and the same fails to withstand the legal scrutiny. Page No.# 13/14

17. Under such circumstances, the impugned order dated 06.08.2024, fails to withstand the legal scrutiny. And accordingly, the same stands set aside and quashed.

18. Having gone through the pleadings of the petitioner and the documents enclosed therewith, this Court left no doubt in the mind that the petitioner had the requisite qualification for being appointed as tutor in the Namargaon High School, under Section 6(2) of the Act of 2017. He was appointed on 01.05.1993, as Assistant Teacher, in Namargaon High School. He continued his service till today for more than 21 years. He joined prior to 31.12.2010 and rendered continuous service for more than 6 years as on 01.01.2017. Thus, he fulfills the requisite criteria for Tutor under Section 4(2) (iii) of the Act of 2017.Besides, he had also acquired B.A. Degree in the year 2016. This is an undisputed fact. Given the way, the respondent No.2 had dealt with the issue and given the manner the orders of this Court, passed in several writ petitions, i.e. (i) Order dated 19.11.2015 in WP(C) No. 6695/2014, (ii) order dated 05.12.2017 in WP(C) No. 581/2016, (iii) order dated 07.01.2022 in WP(C) No. 88/2022, (iv) order dated 27.04.2022 in WP(C) No. 2722/2022, and (v) order dated

07.09.2023 in WP(C) No. 8205/2022, being circumvented, this Court, is of the considered opinion that if the matter is referred for reconsideration of respondent No.2 then it would receive the same treatment in the hand of the respondent No.2.

19. Therefore, by a mandamus of this Court the respondent No.2 is directed to provincialise the service of the petitioner as tutor of Namargaon High School, Dhubri, under Section 6 (2) and 7 of the Act of 2017. And this exercise has to be carried out within a period of one month from the date of receipt of certified copy of this order. The petitioner is directed to obtain a certified copy of this judgment and order and to place the same before the respondent No.2 within a period of one week from today. Page No.# 14/14

20. In terms of above, this WP(C) stands disposed of.

21. The parties have to bear their own cost. Comparing Assistant JUDGE