Smti Bibi Hazarika vs State Of Assam And 9 Ors

Heard Mr. R. Sarma, learned counsel for the petitioner, Mr. M. Dutta, learned counsel for the respondent No.9 and Mr. N. Sarma, learned

Standing Counsel for the Secondary Education Department, Government of Assam. Earlier Mr. A. Deka and Mr. S Neogi, learned counsel had

entered appearance for the respondent Nos. 5, 7 and 9, but it is stated that as Mr. Deka and Mr. Neogi are presently counsel appearing for the

Education Department, therefore, they had expressed their inability to appear for the said respondents and thereupon Mr. M. Dutta had been entrusted

to appear for the respondent No.9. In the resultant situation, none appears for the respondent Nos. 5 and 7 being the Headmaster and the School

Managing Committee of Kumud Sarma High School, Lakhimpur.

The petitioner was appointed as the Assistant Teacher in the Kumud Sarma High School, Lakhimpur as per the letter dated 30.12.1993 and had

joined the service on 01.01.1994. The respondent No.9 on the other hand was appointed as an Assistant Teacher, Science of Kumud Sarma High

School, Lakhimpur on 02.01.1995 and had joined the service on the same day. Apparently, on the basis of the date of joining, the petitioner is senior to

the respondent No.9.

When the stage came for provincialising the service of the employees of the concerned High School, the respondent No.9 had staked a claim for

provincialisation on the ground that his subject combination includes Mathematics, whereas the subject combination of the petitioner includes Biology

and as there was one more teacher having Biology combination, therefore, the respondent No.9 is to be considered for provincialisation.

Accordingly, the present writ petitioner had preferred an earlier writ petition, which was registered as WP(C) No.72/2014. The said writ petition

was given a final consideration by the order of 08.01.2014 by providing that the writ petitioner would file a representation before the Director of

Secondary Education, Assam who shall consider the dispose of the same in accordance with law. Consequent thereof, the petitioner submitted a

representation, which resulted in the order dated 28.04.2014 of the Director of Secondary Education, Assam.

In the order dated 28.04.2014, the Director of Secondary Education, Assam arrived at a conclusion that the petitioner having joined on 01.01.1994,

her name should have been recommended by the school in place of the respondent No.9 inasmuch as, the Provincialisation Act does not provide for

any combination of subject for the BSc Teacher. The Director also records that it is the stand of the Directorate that when two Science Teachers are

to be recommended, it has to be their seniority irrespective of their subject combination.

But having said so, the Director concludes that as per the Headmistress of the School namely Smti Karuna Chetri, the writ petitioner is very

irregular in attending duties and therefore, her name was not sent in spite of her seniority. Accordingly, the Director concluded that although ordinarily

the petitioner ought to have been sent for provincialisation as per seniority, but as because she was said to be irregular by the Headmistress therefore,

her name was not sent.

On a query before the respondent authorities as to whether any notice was given to the petitioner as regards the allegation of her irregularity or as

to whether any proceeding was held, it is stated that neither any notice was given nor any proceeding was held. Accordingly, it is to be concluded that

the Director had refused the provincialisation of the petitioner in spite of being senior merely on a statement of the Headmistress that the petitioner is

irregular in attending duties. Such a procedure adopted by the Director is contrary to the requirement of the law and the legal right of a person to be

provincialised cannot be taken away merely by arriving at a conclusion that as because the Headmistress says that the concerned person is irregular,

therefore, in spite of being senior, such person should not be provincialised.

In such view of the matter, this Court finds the order dated 28.04.2014 of the Director to be unsustainable and accordingly set aside the same.

Having set aside the order dated 28.04.2014 by which the petitioner was deprived of being provincialised, consequence thereof shall follow as per law

and any further action taken on the basis of the order dated 28.04.2014 would also have to be construed to be without any authority of law.

It is also brought to the notice of the Court that in the meantime the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011

has been declared to be unconstitutional and ultra vires by the judgment and order dated 23.09.2016 passed in WP(C) No.3190/2012. It is also stated

that in the meantime, the Assam Education (Provincialisation) of Services of Teachers and Re-Organization of Educational Institution Act, 2017 had

been enacted.

As further provincialisation cannot be undertaken under the 2011 Act, the petitioner as well as the respondent No.9 shall have to be considered

under the Act of 2017. Section 13(6) of the Act of 2017 provides that all such eligible candidates are to be considered for provincialisation under the

said Act. Accordingly, the cases of the petitioner and the respondent No.9 be now processed u/s 13(6) of the Act of 2017.

As the respondent No.9 is already enjoying the benefit of being provincialised, the respondent authorities shall allow him to enjoy the benefits till

the point the subsequent consideration is given u/s 13(6) of the Act of 2017. It is clarified that further continuance of the respondent No.9 as a

provincialised teacher shall depend upon the further order to be passed by the authorities u/s 13(6) of the Act of 2017 and the said order shall

supersede all other earlier orders by which the respondent No.9 was provincialised and the earlier orders shall cease to have effect from the date of

subsequent order to be passed and the consequential effect will be as if the earlier order of provincialisation was not passed. In terms of the above,

the writ petition stands disposed of.