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Wp(C) 4950/2013

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Wp(C) 4950/2013 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) NO.1772/2014 1. Sri Zabedur Rahman, S/o Late Pandit Ali, Resident of Village Bhangamari, Post Office- Bhangamari, Police Station-Mukalmua, District- Nalbari, Assam. ………………………… Petitioner - Versus- 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, Assam, Dispur, Guwahati-6. 2. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. 3. The Inspector of Schools, Nalbari District Circle Nalbari Cum Secretary, District Scrutiny Board of Secondary School, Nalbari. 4. The Headmaster of Milan High School, Madhya Bhagnamari, P.O- Bhangnamari, Nalbari, Assam. 5. Md. Nurul Islam, Son of Late Polan Ali, Resident of Village Kurihamari, P.S- Sialmari, Dist- Nalbari, Assam. …………………… Respondents For the petitioner :Mr. A. R. Bhuiyan, Adv For the respondents :Mr. U.K. Goswami, Standing Counsel, Education, Mr. D.P. Borah, Adv 2 WP(C) NO.4950/2013 1. Md. Nurul Islam, S/o Late Polan Ali, Resident of Kurihamari, P.O- Bhangnamari, P.S- Sialmari, District- Nalbari, Assam. ………………………… Petitioner - Versus- 1. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, Assam, Dispur, Guwahati-6. 2. The Director of Secondary Education, Assam, Kahilipara, Guwahati-19. 3. The Inspector of Schools, Nalbari District Circle Nalbari Cum Secretary, District Scrutiny Board of Secondary School, Nalbari. 4. The Headmaster of Milan High School, Madhya Bhagnamari, P.O- Bhangnamari, Nalbari, Assam. 5. Md. Zabedur Rahman, S/o Late Pandit Ali, Resident of Village Bhangamari, Post Office- Bhangamari, Police Station-Mukalmua, District- Nalbari, Assam. …………………… Respondents For the petitioner :Mr. D.P. Bora, Adv For the respondents :Mr. U.K. Goswami, learned Standing Counsel, Education Department Mr. A.R. Bhuiyan, Adv 3 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Date of hearing : 22.05.2014 Date of Judgment : 22.05.2014 JUDGMENT AND ORDER(ORAL) 1. Both the writ petitions by and between the same parties and raising the same issue have been heard analogously and are being disposed of by this common judgment and order. 2. The petitioner involved in WP(C) No.1772/2014 (Zabedur Rahman) has questioned the Annexure-9 order dated 04.10.2013 of the Director of Secondary Education, Assam, by which he has withdrawn the Annexure-7 order dated 17.08.2013, in which the petitioner was shown as Assistant Teacher with the date of joining as 09.06.1997. The said order relates to Provincialisation of services of the incumbents named therein including the petitioner w.e.f. 01.01.2013. 3. In the 2nd writ petition i.e. WP(C) No. 4950/2013 filed by one Md. Nurul Islam, the challenge is the aforesaid Annexure-7 order dated 17.08.2013, by which the services of the other writ petitioner namely, Zabedur Rahman has been provincialised. 4. The impugned order involved in the writ petition filed by Zabedur Rahman is the outcome of the interim order passed in the other writ petition filed by Nurul Islam in which vide 4 order dated 02.09.2013, the Provincialisation of services of Zabedur Rahman was stayed. 5. The school in which both the incumbents are serving was at the venture stage till issuance of the impugned order dated 17.08.2013 (Annexure-7 to WP(C) No.1772/2014), by which the services of the incumbents had been provincialised including that of Zabedur Rahman. The other petitioner, namely, Nurul Islam is aggrieved by exclusion of his name from the order of Provincialisation inasmuch as according to him, he is senior to Zabedur Rahman. 6. Zabedur Rahman was appointed as an Assistant Teacher (Intermediate) of Milan High School, Madhya Bhangnamari. It is an admitted position that he was not a Graduate at that point of time and he obtained his graduation in the year 2005. As against this position, Nurul Islam was a Graduate and was appointed in the school in the year 2000 and to be précise on 29.09.2000. The dispute that has arisen is as to who would rank senior as Assistant Teacher. 7. According to Zabedur Rahman, he would rank senior to Nurul Islam, he having joined the school as Assistant Teacher on 08.06.1997, but on the other hand, it is the case of Nurul Islam that since he was appointed as a Graduate Teacher in the year 2000, he would rank senior to Zabedur Rahman in the said cadre. As noted above, Zabedur Rahman was appointed as Assistant Teacher (Intermediate Cadre) in the year 1997. He obtained his graduation in the year 2005. Thus, according to Nurul Islam, he having joined the school as a Graduate Teacher 5 in 2000, he would rank senior to Zabedur Rahman as he had obtained his graduation only in the year 2005. 8. I have heard Mr. A.R. Barbhuiyan, learned counsel representing Zabedur Rahman and have also heard Mr. D.P. Bora, representing Nurul Islam. I have also heard Mr. U.K. Goswami, learned Standing Counsel, Education department. 9. Referring to the Annexure-7 document annexed to the writ petition filed by Nurul Islam, Mr. Bora, learned counsel submits that against the name of Zabedur Rahman, it was wrongly indicated that he was a graduate from the date of his initial appointment on 06.09.1997. The said document is a Format incorporating the names of the incumbents in the school. In the particular column, namely, educational qualification on the date of appointment, the degree “B.A” is shown against the name of Zabedur Rahman indicating his date of appointment as 06.09.1997. The fact of the matter is that he was not B.A in 1997 when he was appointed in the school, but obtained the said degree only in 2005. This is precisely as the reason why he was appointed as Assistant Teacher in the intermediate cadre. 10. As against the aforesaid position, Nurul Islam was appointed in the school in 2000 as a Graduate Teacher as he was already a graduate. It is on this count, it is the plea of Nurul Islam that he would rank senior to the other writ petitioner, namely, Zabedur Rahman. 11. Opposing the aforesaid plea of Nurul Islam, Mr. A.R. Borbhuiyan, learned counsel representing Zabedur Rahman 6 submits that seniority is to be determined on the basis of date of appointment. He submits that even if Zabedur Rahman was lacking in the educational qualification, but he having obtained the same in 2005, the same would relate back to his initial date of appointment i.e. 1997. He has also referred to the provisions of Section 4 of the Assam Venture Educational Institution (Provincialisation of Services) Act, 201 1 . 12. The aforesaid section deals with the eligibility etc of the teachers working in Venture Educational Institutions for provincialisation of their services. As per the proviso to Section 4(3), if an employee is required to acquire any prescribed academic or professional qualification, service of such employee might considered for provincialisation, if otherwise eligible, but in such case, the provincialisation would be subject to acquiring of such prescribed qualifications within a period of five years from the date of coming into force of the Act and during the intervening period, the employee would continue to work in the existing terms and conditions in which he was working until his services are provincialised. In case of his failure to acquire the required academic or professional qualification within the stipulated period, his service shall stand terminated with effect from the date of expiry of the stipulated period of five years. Section 3 of the Act lays down the eligibility criteria for selection of educational institutions for provincialisation of services of its employees. Section 4(1) speaks of the eligibility criteria for provincialisation of services of the employees of eligible Venture Educational Institutions one of which is 7 completion of ten years of service in such educational institutions. As per the 1st proviso to Section 4(2), the number of employees in both teaching and non-teaching cadre in each of the institutions, the services of whom are provincialised or to be provincialised under the Act, shall not exceed the limit as specified in the schedule appended to the Act. The 2nd Proviso to Section 4(2) provides that where number of such employees serving in such Venture Educational Institutions exceeds the number as specified in the schedule, the provincialisation of the service of the employee shall be on the basis of seniority in the “respective category”. It is the term “respective category” to which Mr. Bora representing the petitioner Nurul Islam has referred to so as to contend that Zabedur Rahman was not in the category to which Zabedur Rahman belongs to. He submits that Zabedur Rahman came to the category of Nurul Islam only in 2005, when he obtained his graduation. 13. If the submission made by Mr. A.R. Borbhuiyan, learned counsel representing Zabedur Rahman in reference to the aforesaid provisions of the Act is to be accepted, in that case even a teacher without the required qualification would be entitled to consideration of his case for provincialisation. Prima facie the provision for acquiring the required academic or professional qualification is relatable to a special qualification unlike the minimum required qualification. For example, if in addition to Bachelor Degree or Master Degree, an educational qualification like B.Ed/BT etc is required, in that case, the 2nd proviso to Section 4(3) may come into operation giving a chance 8 to the incumbent to obtain the said special qualification so that he is not deprive of the benefit of provincialisation.
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