Page No.# 1/14 GAHC010236642023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6225/2023 MANABENDRA KR SARMA SON OF SRI HARENDRA SHARMA, R/O- SIMALUA, P.O.- BALISATRA, GUWAHATI, DIST.- KAMRUP, ASSAM, PIN- 781350. VERSUS THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT OF SECONDARY EDUCATION, DISPUR AT GUWAHATI- 781006. 2:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA AT GUWAHATI- 781019. 3:THE DISTRICT COMMISSIONER KAMRUP AS CHAIRMAN DISTRICT SCRUTINY COMMITTEE SECONDARY EDUCATION AMINGAON GUWAHATI- 781031. 4:THE INSPECTOR KAMRUP DISTRICT CIRCLE AMINGAON GUWAHATI- 781031. Page No.# 2/14 5:THE PRINCIPAL IN-CHARGE MADHYA PANDURI H.S. SCHOOL JAMTOLA RANGIA DISTRICT- KAMRUP(ASSAM) Advocate for the Petitioner : MR. N SARKAR, MR S BORTHAKUR,MR A BANERJEE,MR P K BASU Advocate for the Respondent : SC, SEC. EDU., GA, ASSAM BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 03.09. 2026 Heard Mr. S. Borthakur, learned Senior Counsel, assisted by Mr. N. Sarkar learned counsel for the petitioner. Also heard Mr. U. Sharma learned Standing Counsel appearing for the Secondary Education, Ms. K. Phukan, learned State Counsel appears for the Respondent No. 3. In spite of notices being served, none represents the Respondent No. 5. 2. The petitioner before this Court is presently serving as the subject teacher of English since 2009 in Madhya Panduri Higher Secondary School, located at Jamtola, Rangia, Kamrup. The petitioner was initially appointed as the second post of teacher in English by the Managing Committee of Madhya Panduri Higher Secondary School in terms of the resolution adopted by the Managing Committee dated 23.10.2009. The petitioner was thereafter issued the appointment order on 24.12.2009, pursuant to which the petitioner joined his service on 26.12.2009. It is the contention on behalf of the petitioner that he has been rendering continuous service in the said school. Page No.# 3/14 3. In terms of the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act 2011, the services of the recommended teachers were provincialised. In the said school, there were two teachers of English, namely Shri Kishore Kumar Sarma, as the first teacher and the writ petitioner as the second teacher. In terms of the provisions of the Act of 2011, the School authorities sent the names of the teachers in their proposal for provincialisation. Prior to the names being sent, the first teacher in English, namely Shri Kishore Kumar Sarma had resigned and, pursuant to a decision taken by the Managing Committee, the petitioner was appointed in his place as the first English teacher of the said School. 4. In the process undertaken for sending the names of the teachers for provincialisation, for reasons beyond the control of the petitioner, the school authorities inadvertently recommended the name of Shri Kishore Kumar Sarma in place of the present writ petitioner for provincialisation, notwithstanding the fact that Shri Kishore Kumar Sarma had already resigned on 22.06.2012 and the petitioner having been appointed as such. As a consequence, the provincialisation of the services of the other teachers was granted by the authorities, except that of the petitioner, whose name was inadvertently not put up by the school authorities in place of Shri Kishore Kumar Sarma. Also in view of his resignation, Shri Kishore Kumar Sarma, was also not provincialized. Thereafter, the school authorities submitted a proposal before the District School Committee for incorporation of the name of the petitioner against the first post of subject teacher in English for provincialisation. The Scrutiny Committee, in its meeting held on 04.06.2015, recommended that the name of the petitioner for being put up for provincialisation against the first post of subject teacher Page No.# 4/14 (English). The said recommendation was made as the petitioner has been found to have been in service since the date of his joining on 26.12.2009, subsequent resignation to Shri Kishore Kumar Sarma on 22.06.2012. 5. The matter was examined by the Director of Secondary Education and, by order dated 5th of December, 2015, the Director of Secondary Education rejected the proposal for provincialisation of the writ petitioner. The said order was challenged before this Court by the petitioner in WP(C) No. 3159/2016. By order dated 27.05.2016, the Coordinate Bench of this Court disposed of the writ petition, directing the matter to be considered afresh by the Director of Secondary Education, by conducting an enquiry to ascertain whether the petitioner was the first English teacher of the said school and also clear his doubts by calling the principal of the said School. 6. Pursuant to the directions issued by the Court, although the Director, by order dated 04.10.2016, reconsidered the matter again, he reiterated his earlier stand and rejected the claim made by the petitioner on the ground that the Principal of the school could not produce the Attendance Register from January 2011 to April 2011, and also that from May 2011 the petitioner had put his signature after Grade-IV employee and only in the year 2013 he had put his signature in the Attendance Register before the Grade-IV employee. The Director rejected the proposal on the ground that there was clear case of manipulation of the records. The said order was therefore again assailed by the petitioner by filing WP(C) No. 1056/2017. However, the writ petition had to be withdrawn in view of the fact that the Act of 2011 was held to be ultra vires by the Division Bench of this Court. Although, the writ petition was withdrawn, Page No.# 5/14 liberty was granted to the petitioner to challenge the order dated 04.10.2016 at a future date. Subsequent to the enactment of the Act of 2017, the present writ petition has been filed assailing the impugned order dated 04.10.2016 passed by the Director. 7. The learned counsel for the petitioner submits that the conclusion arrived at by the Director is not borne out of the records and that the petitioner has not been serving against the first post of Subject teacher of English. From a perusal of the impugned order, it is seen that the rejection of the proposal of the writ petitioner is only on the ground that the petitioner had signed the Attendance Register after a Grade-IV employee, without any reasons being shown by the Director as to why the petitioner’s signature appeared after being Grade-IV employee. There is no provision under the Act of 2011 or 2017 restraining subject teachers from putting signatures after Grade-IV employees. It is submitted that the School maintains the Attendance Register on the basis of the seniority of employment and, as the Grade-IV employee had been appointed at an earlier date, the name of the petitioner came to be placed below the Grade- IV employee in the Attendance Register. 8. The further contention of the petitioner is that the conclusion arrived at by the Director that the School Authorities did not produce the Attendance Register from January 2011 to April 2011 cannot be attributed to the writ petitioner, as the said registers were not within his custody. It was open for the Director to compel or issue further directions to the School Authorities to produce all relevant records and, in the absence thereof, to take appropriate action against the erring officials for their failure to produce the Attendance Registers. Page No.# 6/14 9. The learned Senior Counsel has referred to the additional affidavit filed by the petitioner in the present proceedings and the annexure enclosing the copies of the Attendance Register obtained by the petitioner from Madhya Pandhuri Higher Secondary School, Jamtola. The copies of the Attendance Registers were received from the School under the cover letter dated 17.07.2026 issued by the Principal-In-Charge of the said School. Referring to the photocopies of the Attendance Registers enclosed with the additional affidavit filed by the petitioner, the learned Senior Counsel submits that the said registers are for the period January 2010 to December 2011. He submits that the signature of the writ petitioner is available for all the months in the registers and that these are the photocopies as is reflected in the order dated 04.10.2016. The learned Senior Counsel submits that the non production of the Teacher Attendance Register by the School authorities before the Director at the time of hearing are beyond the comprehension of the writ petitioner and no fault can be attributed to him for non-production of these registers, as they were not within his custody. Referring to Section 3(1)(vi) and (vii) Act of 2017, it is submitted that the Act provides for provincialization of venture high school or venture high secondary school and that the conditions prescribed therein are fulfilled by the said School. He further refers to Section 2 (t) to submit that the expression “teacher” under the provisions of the Act, would mean any teacher or any teaching faculty working in a venture educational school having the requisite educational and professional qualifications in the norms and standards fixed under the Right of Children to Free and Compulsory Education Act, 2009, the NCTE Act, 1993, the UGC Act, 1956 and the relevant rules and regulations, and whose services are provincialised under any other Act, as may be applicable on the date of provincialisation, and whose services are provincialised under the Page No.# 7/14 Act. It is submitted that, on a date when the proposal was put up for consideration of the claim for provincialisation, the petitioner satisfied all the norms prescribed and his name ought to have been provincialised, but for the error committed by the School Authorities in recommending the name of the former teacher, namely Kishore Kumar Sarma for provincialisation as the first subject teacher in English instead of the present writ petitioner. He, therefore, submits that the impugned order dated 04.10.2016 be interfered with and the respondents be directed to take into account the verification undertaken by the District Scrutiny Committee and pass appropriate orders for provincialisation of the services of the petitioner with effect from the date on which the other teachers of the same school were provincialised. 10. Mr. U. Sharma, learned Standing Counsel, on the other hand, submits that the affidavit filed by the Department clearly indicates that, in the impugned order dated 04.10.2016, there is a categorical finding by the Director that there was manipulation of the records and that the School was provincialized in the year 2013. He further submits that, as per Section 4(2)(iii) of the Act of 2017, the teachers to be provincialised must have rendered at least six years of continuous service as on 01.01.2017 from the date of joining in the concerned Venture Educational School, and that the date of joining must be on 31.12.2010 or prior to that date. It is submitted that the petitioner was appointed in the year 2009 and that he does not satisfy the required period of service as on the date when the names were put up for provincialisation. He therefore, submits that there is no merit in the writ petition and that the claim made by the writ petitioner is not maintainable. He, therefore, submits that this writ petition be dismissed. Page No.# 8/14 11. The learned counsel for the parties have been heard, pleadings available on record have been carefully perused. 12. At the outset it is necessary to refer to the relevant provisions of the Act of 2017. Under Section 3 (1)(vi) & (vii), the provisions of the Act are as under: “Eligibility criteria for selection of educational institution for provincialisation of services of teachers/tutors. 3. (1) Subject to the provisions of Article 30 of the Constitution of India, the following categories of Venture Educational Institutions shall be eligible for being considered for provincialisation of the services of their teachers and tutors:- vi) In case of a Venture High School or a Venture Higher Secondary School or a Venture Junior College or a Venture Degree College, the concerned Venture Educational Institution must have a consistent good academic performance which would mean that at least 30% of the candidates appearing for the final examination as a whole must have passed in the last three consecutive examinations held during previous three consecutive years prior to the date of coming into force of this Act. (vii) In addition to the provision under clause (v) above, at least 10 students must have appeared in the last final examination in any subject in case of Venture High School, Page No.# 9/14 Venture High Madrassa, or Venture Higher Secondary School or Venture Junior College. At least 15 students in any subject must have appeared in case of Venture Degree College in the last final examination.” Under Section 4 (2) (iii), the provisions of the Act are as under: “Teachers and/or tutors to be government servants 4. (2) The teachers and/or tutors to be provincialised under this Act,- (iii) must have rendered at least six years continuous service as on 1.1.2017 from the date of joining in the concerned Venture Educational Institution which must be on 31.12.2010 or prior to that date. Under Section 13 (6), (7), (8) & (9), the provisions of the Act are as under: ”13. District Scrutiny Committee and State Level Scrutiny Committee. (6) The District Scrutiny Committee shall first scrutinize and prepare a list of all Venture Educational Institutions within the district, which are eligible in terms of the provisions of this Act and shall thereafter proceed to scrutinize and verify the service records of all the serving Page No.# 10/14 teachers, who are eligible or would become eligible for being considered for provincialisation of their services. The District Committee shall identify a Base School for each category of school and recommend the name of teacher/ tutor to be associated against each Base School. (7) The District Scrutiny Committee shall forward the verified list of eligible teachers Base school-wise in accordance with this Act, to the concerned Director who shall place the matter before the State Level Scrutiny Committee to be constituted under sub-section (10) of this section and after making such further scrutiny as may be required, shall forward the same to the concerned Department of the State Government for consideration and for issuing Notification in respect of the eligible institutions and teachers eligible for getting their services provincialised. (8) The District Scrutiny Committee shall have the powers to inspect physical existence of school and to inspect all documents and records produced before it and call for such further records and documents as may be required for the purpose of causing verification and scrutiny and examine witnesses for the purpose, if considered necessary and while doing so it shall have the powers of a Civil Court for the purpose of compelling attendance of persons and production of documents. (9) The State Government may, for reasons to be recorded in writing, by an order re-constitute the District Page No.# 11/14 Scrutiny Committee or may change in its composition, if the circumstances so warrant, from time to time.” 13. A perusal of the aforesaid provisions reveal that it is the District Scrutiny Committee who has been given the responsibility of making the necessary scrutiny and enquiry into the proposal received from the Venture Educational Institution seeking provincialisation of the service of teachers. The procedure prescribed under Section 13 (6), (7), (8) and (9) are very clear. 14. Coming to the facts of the present writ petition, the District Scrutiny Committee, in the subsequent proposal, had undertaken a detailed scrutiny and recommended the name of the writ petitioner for provincialisation, as recorded in the Minutes of the Meeting held on 04.06.2015. The discrepancy reflected in the impugned order dated 04.10.2016 by the Director of Secondary Education, to the effect that the Attendance Registers from January 2011 to April 2011 were not available or produced by the Principal of the School, is also sought to be dispelled by the copies of the Attendance Registers for the concerned period obtained from the School Authorities, which are enclosed in the additional affidavit filed by the petitioner on 24.07.2026. No such finding regarding non- availability of attendance registers is also seen in the Minutes of the District Scrutiny Committee. 15. From the pleadings, it is also seen that there is no dispute with regard to the fact that the first subject teacher (English), Shri Kishore Kumar Sarma had already resigned on 22.06.2012, prior to the proposal for provincialisation being submitted by the School Authorities. It is also clear from the earlier order passed by the Director dated 5th of December, 2015, wherein it was Page No.# 12/14 categorically mentioned that, the earlier incumbent Shri Kishore Kumar Sarma having resigned on 22.06.2012, it was not understood why the Principal submitted the name of the said teacher for provincialisation after a period of three months, on 29.09.2012. Accordingly, it is not in dispute that Shri Kishore Kumar Sarma had tendered his resignation well prior to the proposal for provincialisation being sent or put up by the School Authorities. The fact that the School Authorities had thereafter sent the subsequent proposal for including the name of the petitioner for provincialisation is also supported by the scrutiny undertaken by the District Scrutiny Committee, as is evident from the Minutes of the Meeting dated 04.06.2015. 16. The question with regard to the availability of the Attendance Registers of the said School for the period January 2011 to April 2011, is sought to be answered by the photocopies and extracts of the said Registers furnished before this Court by filing additional affidavit under the cover letter of the School Authorities dated 17.07.2026. No affidavit has been filed by the State disputing the materials which are brought on record by the additional affidavit filed by the writ petitioner on 24.07.2026. There is also no reference found in the impugned order passed by the Director of Secondary Education with regard to scrutiny undertaken by the District Scrutiny Committee, which is mandatorily required to be done under Section 12 of the Act of 2016, which committee had duly recommended the provincialisation of the writ petitioner. 17. Under such circumstances, this Court is of the view that, in the face of the materials placed before this Court with regard to the availability of the Attendance Registers for January 2011 to April 2011, and the materials Page No.# 13/14 indicating the availability of the writ petitioner and his rendition of services in said School, the matter will require re-examination by the Director of Secondary Education. 18. Accordingly, the matter is remanded back to the Director to re-examine the claims and the proposal put up by the School Authorities for provincialisation of the writ petitioner by taking into consideration the fact that the scrutiny having already been undertaken by the District Scrutiny Committee, as is evident from the Minutes of the Meeting dated 04.06.2015, and also to either call for the originals of the School Attendance Registers, the extract of which are placed before this Court by way of the additional affidavit dated 24.07.2026, filed by the petitioner, or to personally verify the correctness of the information stated to be available in the Attendance Registers. 19. The Director is also given liberty to undertake any verification with regard to the employment status of the petitioners as also his eligibility under the Act of 2017. Upon such detailed verification being undertaken, the claim of the writ petitioner will be considered and a detailed speaking order will be passed by the Director. 20. In the event, the Director finds that the petitioner is eligible for provincialisation, then his name should be put up immediately, without further delay, for provisialisation with effect from the appropriate date, as would be evident from the proposal put up by the School Authorities for provincialisation and consequential orders thereon be passed provincialising the services of the petitioner. In the event, the Director is of the considered view that the claim of Page No.# 14/14 the petitioner is not found to be admissible, then also an appropriate speaking order shall be passed to that effect. 21. Let this entire exercise be undertaken within the period of 60 (sixty) days from the date of receipt of certified copy of this order. 22. In view of the order passed today, the impugned order dated 04.10.2016 is hereby set aside. 23. Accordingly, this writ petition stands disposed of in terms of the direction stated hereinabove. 24. No order as to cost. JUDGE Comparing Assistant