Hanif Ali Sk vs State of Assam

Ujjal Bhuyan, J. (Oral)—This case was heard yesterday and today is fixed for delivery of order.

Heard Mr. HRA Choudhury, learned Senior counsel assisted by Mr. F.U. Borbhuiya, learned counsel for the petitioner and Mr. A. Deka, learned Standing Counsel, Secondary Education Department, Govt. of Assam. Also heard Mr. M.U. Mondal, learned counsel for respondent No.7.

By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of recommendation of the District Scrutiny Committee dated 11.08.2014 for provincialisation of services of teaching and non-teaching staff of Baterhat Higher Secondary School in the district of Dhubri, more particularly, recommendation made in favour of respondent No.7 in place of the petitioner. Further prayer made is for a direction to the respondents to provincialise the service of the petitioner.

Case of the petitioner as projected in the writ petition is that he is a Post-Graduate in Political Science and thus qualified to be appointed as Subject Teacher in Higher Secondary Schools of the State.

Initially, Baterhat Higher Secondary School (School) was started as a High School which was provincialised on 01.08.1995. Thereafter, Managing Committee of the School decided to upgrade it to a Higher Secondary School having Arts stream with English, MIL (Assamese), History, Political Science, Economics, Logic and Philosophy and Arabic. Accordingly, Managing Committee appointed 7 subject teachers for each of the subjects including respondent No.7 who had joined on 11.08.1997. One of the Subject Teachers was Shri Jayanta Kumar Roy who had joined on 11.08.1997 as Subject Teacher (Political Science). It is stated that Shri Jayanta Kumar Roy subsequently resigned from his service on 03.12.2010 and in his place, petitioner was appointed vide resolution of the Managing Committee dated 23.12.2010 pursuant to which he joined on 27.12.2010. The said appointment of the petitioner was subsequently approved by the Inspector of Schools, Dhubri, on 14.02.2011.

The Higher Secondary Section of the School was taken up for consideration for provincialisation under the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (Provincialisation Act). Accordingly, the School authority submitted particulars of the teaching and non-teaching staff of the School to the higher authority. In this connection, WP(C) No.1443/2013 was filed by respondent No.7 with the grievance that a subsequent list of teaching and non-teaching staff of the School was prepared for the purpose of provincialisation in which name of the present petitioner was shown above him though admittedly petitioner was a later appointee. This Court by order dated 14.11.2013 disposed of the writ petition by directing the Inspector of Schools, Dhubri and Director of Secondary Education, Assam to place the matter before the District Scrutiny Committee for doing the needful in terms of the Provincialisation Act.

District Scrutiny Committee (DSC) passed an order dated 10.01.2014 recommending the name of the petitioner for provincialisation instead of respondent No.7. This came to be challenged by respondent No.7 before this Court by filing WP(C) No.3006/2014. This Court by order dated 18.06.2014 permitted respondent No.7 to file representation before the Deputy Commissioner, Dhubri and for consideration of such representation by the DSC.

It was thereafter that the DSC, Dhubri, adopted resolution on 11.08.2014 deciding to recommend respondent No.7 for provincialisation of his service as a Subject Teacher (Advance Assamese) as he was found senior to the petitioner.

Aggrieved, present writ petition has been filed.

This Court by order dated 08.01.2015 had issued notice and passed an interim order directing that service of respondent No.7 should not be provincialised.

A number of affidavits have been filed by the parties. However, Education Department has not filed any affidavit.

In the affidavit filed by respondent No.7, it is stated that respondent No.7 was appointed as Subject Teacher in the Department of Advance Assamese on 07.08.1997 pursuant to which he joined on 11.08.1997. Advance Assamese is a separate department in addition to the department of MIL (Assamese). This would be evident from the subsequent reports of the Assam Higher Secondary Education Council (Council). On the other hand, writ petitioner was appointed as late as on 24.12.2010 and therefore between the petitioner and respondent No.7, respondent No.7 being senior is entitled to provincialisation in terms of Section 4 of the Provincialisation Act.

Petitioner has filed reply affidavit to the affidavit of respondent No.7.

On the other hand, in the affidavit filed by the School, it is stated that respondent No.7 was appointed as Subject Teacher in Advance Assamese. Managing Committee represented before the Council for up gradation of the High School to Higher Secondary School. Initially while granting recommendation on 10.04.2001, 7 subjects were approved, i.e., MIL (Assamese), History, Political Science, Economics, Logic and Philosophy and Arabic but the subject of Advance Assamese was not recommended. Therefore, in the feasibility report of the Council dated 10.04.2001, subject of Advance Assamese was not included. On the other hand, petitioner was appointed as Subject Teacher in Political Science following resignation of incumbent Shri Jayanta Kumar Roy where after he joined on 27.12.2010. It is stated that though entry of the petitioner is much later than respondent No.7, subject of respondent No.7 has not been approved by the Council.

The Council (respondent No.8) in its affidavit has stated that in its feasibility report dated 10.04.2001, subject of Advance Assamese was inadvertently not included. However, as per inspection report of the School dated 15.11.2010, School had Advance Assamese as one of the subjects. As per school record, respondent No.7 was appointed on 19.07.1997 where after he joined the School on 11.08.1997 as Subject Teacher in Advance Assamese.

Petitioner has filed reply affidavits to all the affidavits filed by the respondents.

Mr. Choudhury, learned Senior counsel, submits that though admittedly entry of respondent No.7 into the service in the venture educational institution was prior to that of the petitioner, such appointment was in a subject which was not recognised. Feasibility report of the Council did not recognise Advance Assamese as one of the recognised subjects in the School. On the other hand, though petitioner was a late entrant, subject in which he was appointed as subject teacher, i.e., Political Science is a recognised subject as per the feasibility report and therefore it is he whose service should be provincialised and not that of respondent No.7.

On the other hand, Mr. M.U. Mondal, learned counsel for respondent No.7 submits that requirement of Section 4 of the Provincialisation Act, more particularly the first proviso to Sub-Section (2) thereof, is ''seniority'' in the category. Therefore, between the petitioner and respondent No.7, there is not even an iota of doubt that respondent No.7 is by far senior to the petitioner and therefore the DSC was justified in recommending the name of respondent No.7 for provincialisation. He therefore submits that writ petition should be dismissed.

Since matter is still at the verification stage, Court did not call upon the learned Standing Counsel, Education Department, to make his submissions as his submissions could have impacted the decision-making process presently underway one way or the other. However, as noticed above, Education Department has not filed any affidavit.

Submissions made have been considered. Also perused the materials on record.

As can be seen from the above, subject-matter of the writ petition is claim to provincialisation under the Provincialisation Act and the dispute is between the petitioner and respondent No.7.

The Provincialisation Act has been enacted to provincialise the services of the employees of venture educational institutions in the State of Assam and to restrict further establishment of such educational institutions in the State. ''Employees'' has been defined to mean and include all serving employees, both teaching and non-teaching, of venture educational institutions appointed by the concerned institution before 01.01.2011 and whose services are to be provincialised.

''Venture Educational Institution'' has been defined to mean and include a host of such institutions including venture Higher Secondary School. As per Section 2(q), ''Venture Higher Secondary School'' has been defined to mean a Higher Secondary School imparting education up-to Class XII and established by the people of the locality on or before 01.01.2006 and which had received permission from the State Government on or before 01.01.2006 and having received permission from the Council on or before 01.01.2006. While eligibility criteria for provincialisation is mentioned in Section 3, Section 4 on the other hand discloses the effect of provincialisation. As per Section 4(1) of the Provincialisation Act, on provincialisation, the erstwhile employees of venture educational institution would become employees of the State Government and would be entitled to all privileges and protections as State Government employees. Sub-Section (2) of Section 4 provides that number of employees, both teaching and non-teaching, whose services are to be provincialised shall not exceed the number specified in the Schedule appended to the Provincialisation Act. However, as per the first proviso to Sub-Section (2), in the event, the number of employees serving in such venture educational institution exceeds the number specified in the Schedule, provincialisation of the services of the employees shall be on the basis of ''seniority'' in the respective category in the concerned educational institution.

Section 10 provides for a three tier level of scrutiny prior to provincialisation; at the initial stage by the District Scrutiny Committee (DSC) to be constituted by the Deputy Commissioner of the district. There shall be separate District Scrutiny Committee for Elementary, Secondary and Higher Secondary Education. Upon scrutiny of the service record of the teaching and non-teaching staff of venture educational institution, DSC shall prepare a list of eligible teaching and non-teaching staff for provincialisation and forward the verified list to the concerned Director. Director may make further scrutiny to his end where after he shall forward the same to the concerned department of the State Government for consideration and for issuance of provincialisation notification. As per the Schedule appended to the Provincialisation Act, in the case of Higher Secondary stream in Secondary Schools, 7 Subject Teachers for Arts, 7 Subject Teachers for Science and 6 Subject Teachers for Commerce stream are provided in addition to other posts.

Two things are discernible from the above analysis. Firstly, the basis of provincilisation in the event of employees exceeding the number specified in the Schedule and secondly the provision for verification.

Coming to the first aspect, a careful examination of the first proviso to Sub-Section (2) of Section 4 of the Provincialisation Act would go to show that if the number of employees in a venture educational institution being considered for provincialisation exceeds the number specified in the Schedule, provincialisation shall be on the basis of ''seniority'' in the respective category. The expression ''respective category'' has neither been defined nor explained in the Provincialisation Act. But a reference to the Schedule appended to the Provincialisation Act would throw light on the legislative intent as to what is meant by ''respective category''. As noticed above, in Higher Secondary stream in Secondary Schools, Subject Teacher has been shown as one category of staff, i.e., Subject Teacher for Arts is one category, Subject Teacher for Science is another category so is Subject Teacher for Commerce. As already noticed above, 7 Subject Teachers for Arts, 7 for Science and 6 for Commerce stream are earmarked as per the Schedule. Therefore, the expression ''respective category'' as appearing in the first proviso to Sub-Section (2) of Section 4 in the context of the present case would mean the category of Subject Teacher for Arts.

A Division Bench of this Court in Writ Appeal No.290/2014 disposed of on 05.05.2016 and in Writ Appeal No.303/2014 disposed of on 07.06.2016 has interpreted the first proviso to Sub-Section (2) of Section 4 to mean that provincialisation is to be made on the basis of ''seniority'' and not on the basis of subject combination.

Reverting to the dispute raised in the present writ petition, prima facie, respondent No.7 is senior to the petitioner though it is the contention of the petitioner that subject in which respondent No.7 is the Subject Teacher is not recognised.

Leaving aside the above debate for the moment, Section 10 of the Provincialisation Act as already discussed above lays down the scheme of scrutiny culminating in issuance of provincialisation notification by the State Government in the concerned department.

A perusal of the recommendation of the DSC dated 11.08.2014 would go to show that verification at the level of DSC has been completed where after service of respondent No.7 has been recommended for provincialisation. Matter is yet to be scrutinised at the level of Director and finalised at the level of the State Government. It is in the midst of the verification process that three rounds of litigation have taken place. Having noticed the scheme of Section 10, forwarding of verified list of eligible teaching and non-teaching staff of a venture educational institution by the DSC to the Director for further verification, if necessary, and thereafter to forward to the State Government for the purpose of provincialisation do not confer either any indefeasible right on a recommendee or can it be said to cause prejudice to a non-recommendee as the verification process is yet to be completed at that stage and no finality is attached. A non-recommendee at that stage cannot be an ''aggrieved person'' as is understood in law as no right of any kind has ripened at that stage. It is only after provincialisation notification is issued that Section 4 of the Provincialisation Act comes into play and only at that stage, it can be said that matter has attained finality in so far administrative decision-making is concerned. At that stage, a non-recommendee can be said to be an ''aggrieved person'' having a definite cause of action to institute a legal proceeding.

It is in the light of the aforesaid scenario that a Full Bench of this Court in Abdul Gafur Mondal v. State of Assam, (2015) 2 GLT 337, had issued a writ of mandamus to the State Government to establish Educational Tribunals at the districts to adjudicate disputes relating to teaching and non-teaching staff of non-Government educational institutions as well as disputes concerning disciplinary action and claim to provincialisation in respect of teaching and non-teaching staff of venture educational institutions.

In compliance to the aforesaid order, Govt. of Assam in the Education (Elementary) Department had issued notification dated 03.12.2015 designating the Courts of District Judge and Additional District Judge of each district to function as Educational Tribunal to adjudicate the disputes on the above issues within their respective territorial jurisdiction from the date of issue of the said notification. Subsequently, it has been clarified that the aforesaid notification dated 03.12.2015 would cover Secondary as well as Higher Education Departments of the Government of Assam as well.

Since verification process is yet to be completed in terms of Section 10 of the Provincialisation Act, Court is of the view that it would not be just and proper to go on intervening in the midst of the verification process. Let the verification process be completed where after the ''aggrieved person'' may avail the remedy as provided in Abdul Gafur Mondal (supra).

Subject to the observations made above, writ petition is dismissed. Interim order passed by this Court on 08.01.2015 is vacated.