Page No.# 1/7 GAHC010277632023 2025:GAU-AS:5418 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7141/2023 RAM KRISHNA CH. NATH SON OF LATE DYBAR CH. NATH, VILLAGE- KHALILPUR, P.O.- KHALILPUR, DISTRICT- DHUBRI, ASSAM. PIN- 783325. VERSUS THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI- 781006. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 781019. 3:THE STATE LEVEL SCRUTINY COMMITTEE REPRESENTED BY THE CHAIRMAN-CUM-THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI- 781019. 4:THE DISTRICT LEVEL SCRUTINY COMMITTEE REPRESENTED BY ITS CHAIRMAN-CUM-THE DISTRICT COMMISSIONER DHUBRI ASSAM PIN- 783330. 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER DHUBRI DISTRICT- DHUBRI Page No.# 2/7 ASSAM PIN- 783330. 6:ANJALI ROY WIFE OF SHRI BIRENDRA NATH ROY R/O- GAURIPUR TOWN WARD NO.1 P.O. AND P.S.- GAURIPUR DISTRICT- DHUBRI ASSAM PIN- 783331 Advocate for the Petitioner : MR. K I MAZUMDER, MR J ABEDIN,MR. K I MAZUMDER Advocate for the Respondent : SC, ELEM. EDU, MR. I H LASKAR (r-6),MR. P DAIMARY (r- 6),MR. R. KARIM (r-6),MR. P K DEKA (r-6),GA, ASSAM BEFORE HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR ORDER Date : 30.04.2025 Heard Mr. J. Abedin, learned counsel for the petitioner as well as Ms. S. Chutia, learned Standing Counsel, Elementary Education Department, for the respondent Nos. 1, 2, 3 & 5; Ms. D. D. Barman, learned Additional Senior Government Advocate, for the respondent No. 4 and Mr. P. K. Deka, learned counsel, for the respondent No. 6. 2. The Govt. of Assam enacted the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 (Act of 2017 in short) to provincialise the services of Teaching and Non-teaching staffs of eligible venture educational institutions. In terms of the Act of 2017, the process for provincialisation of Teaching and Non-teaching staffs of Udayan ME School under Gauripur Education Block in the District of Dhubri was taken up. The District Scrutiny Committee, thereafter, recommended the case of the petitioner as a Language Teacher, respondent No. 6 as Social Science Teacher, Page No.# 3/7 while one Kalpana Kundu Headmaster as a Language Teacher and Mozahar Ali as Math and Science Teacher. In the said recommendation of the District Scrutiny Committee the enrollment for the subjects for the year 2014, 2015 and 2016 in respect of the petitioner is shown as 110, 105, 115 respectively and in respect of the respondent No. 6 for the year 2014, 2015, 2016 it is reflected as 110, 105, 115 respectively. Thereafter, the Director of Elementary Education, Assam by an Order dated 05.02.2021, provincialised the service of the petitioner as a Tutor and the base School was shown as College Nagar Girls M.E. School. 3. The respondent No. 6, being aggrieved with the provincialisation of the petitioner as a Tutor by the Order dated 05.02.2021, preferred a writ petition before this Court, which was registered as WP(C)/1801/2021. The said writ petition was disposed by an Order dated 03.08.2022 with the following directions: “Accordingly, the petitioner is directed to file an appeal as provided under Section 14 of the Act of 2017 before the respondent No.1/Secretary of Elementary, Education Department, Assam, within a period of three weeks from today. Thereafter, on receipt of the appeal, the Secretary to the Government of Assam, Education (Elementary) Department, shall hear the petitioner as well as the respondent Nos. 6 and 7, in person, and pass appropriate order in accordance with law, within a period of two months from the date of receipt of the appeal. In the meantime, the respondent Nos. 6 and 7 shall be allowed to function in terms of the notification dated 04-02-2021, issued by the Director, Elementary Education Department, Assam. The interim order passed by this Court stands vacated inasmuch as the petitioner has no grievance against the respondent Nos. 6 and 7 nor the respondent Nos. 6 and 7 has any grievance against the petitioner. While considering the appeal, the respondent No. 1 shall also take into Page No.# 4/7 consideration Section 3(i)(11) of the Act of 2017.” 4. Consequent to the Order dated 03.08.2022 passed in WP(C)/1801/2021, the District Elementary Education Officer, Dhubri by a Communication dated 24.05.2023 addressed to the Block Elementary Education Officer, Gauripur and the petitioner herein informed that a hearing was scheduled on 29.05.2023 in the Office Chamber of Director of Elementary Education, Assam. Thereafter, the Director of Elementary Education, Assam issued an Order on 01st November, 2023 cancelling the provincialisation Order dated 05.02.2021 in respect of the petitioner based on the report of the hearing dated 29.05.2023 and also as per the decision of the SLSC Minutes dated 12.12.2023. 5. Being aggrieved with the Order dated 01.11.2023, the petitioner is before this Court by way of the present writ petition. 6. Learned counsel for the petitioner submits that while issuing the impugned Order dated 01.11.2023 by the Director, Elementary Education, Assam, the same was issued basing on a report of hearing dated 29.05.2023 as well as on the decision of the SLC meeting held on 12.12.2023. However, the said report of hearing dated 29.05.2023 was never furnished to the petitioner. It is also submitted that the Director, Elementary Education, Assam had diluted the Order dated 03.08.2022 passed in WP(C)/1801/2021 inasmuch as the respondent No. 6 in the present writ petition as well as one Smti. Kalpana Kundu were never heard when the hearing was conducted on 29.05.2023. It is also submitted that under Section 6 of the Act of 2017, it is provided that the services of the Teachers in a Venture Education Institution from 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 eligibility criteria relating to educational and Page No.# 5/7 professional qualifications as laid down under the Right to Children to Free and Compulsory Education Act, 2009, National Council for Teachers Education Act, 1993, the Assam Secondary Education (Provincialised) Service Rules, 2003 as amended in 2012 and the UGC Act 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. Learned counsel accordingly, relies on the provision of the Right to Children to Free and Compulsory Education Act, 2009, particularly, with reference to the Schedule under Section 19 and 25 of the said Act. In the said Schedule at Serial No. 1(b) (3), it is provided that where admission of the children is above 100, there shall be a full time head teacher and part time instructors for Art Education, Health and Physical Education and Work Education. Accordingly, he submits that as the enrollment in the School where the petitioner is teaching has an enrollment of more than 100 students, it is mandatory that there shall be a head teacher in the said school. In that view of the matter, he submits that the impugned Order dated 24.05.2023 be set aside and a direction be issued to the Director of Elementary Education, Assam to have a re-hearing strictly in terms of the directions passed by this Court in WP(C)/1801/2021 by the Order dated 03.08.2022. 7. The Director of Elementary Education, Assam/respondent No. 2 has filed an affidavit and relying on the same, Ms. S. Chutia, learned Standing Counsel, Elementary Education Department, submits that in terms of the Act of 2017, the District Scrutiny Committee recommended the names of one Smti. Kalpana Kundu along with the petitioner as Language Teacher and the respondent No. 6 as Social Science and Mozahar Ali as Math and Science Teacher. Therefore, as Page No.# 6/7 the petitioner is the junior most Language Teacher and in terms of the Act of 2017 only one Language Teacher can be provincialised accordingly, the provincialisation order of the petitioner was cancelled by the impugned Order dated 01.11.2023. 8. Mr. P. K. Deka, learned counsel appearing for the respondent No. 6, on the other hand submits that the respondent No. 6 was recommended for provincialisation in respect of Social Science subject and therefore, the petitioner should have no grievance against the respondent No. 6 inasmuch as the petitioner is concerned only with the Language subject. In fact the petitioner should have made the said Kalpana Kundu as a party respondent inasmuch as the said Kalpana Kundu is a Language teacher. He further submits that Section 3 (1) Clause XI of the Act of 2017 clearly provides that minimum of 3 (three) numbers of teachers are to be provincialised, i.e., one Mathematics and Science Teacher, one Social Studies Teacher and one Language Teacher. Therefore, as the Act of 2017 provides only one Language Teacher is to be provincialised and among the two Language Teachers only the qualified Language Teacher is to be provincialised. Therefore, when the said Kalpana Kundu, is not made a party, the present Writ Petition is not maintainable for non-joinder of necessary party and is liable to be rejected. 9. After hearing the learned counsel for the parties and on consideration of the materials available on record particularly the direction passed by this Court on 03.08.2022 in WP(C)/1801/2021, this Court is of the considered opinion that the respondent No. 2, while conducting the hearing on 29.05.2022 has failed to notify the parties particularly the respondent No. 6 and Smti. Kalpana Kundu. This is evident from the Communication dated 24.05.2023, issued by the District Elementary Education Officer, wherein the said Communication was addressed Page No.# 7/7 only to the Block Elementary Education Officer, Gauripur and the petitioner. 10. Further on consideration of the Order dated 01.11.2023 it appears that the provincialisation of the petitioner was cancelled on the basis of the report of hearing dated 29.05.2023. It was duty bound on the part of the respondent No. 2 to furnish copy of the report of hearing on 29.05.223 to the petitioner before issuing the impugned Order dated 01.11.2023. 11. Accordingly, the impugned Order dated 01.11.2023 is interfered with and same is set aside and quashed. The respondent No.2/the Director of Elementary Education, Assam is directed to have a re-hearing strictly in terms of the directions passed by this Court on 03.08.2022 passed in WP(C)/1801/2021. While, conducting the hearing in terms of the directions passed by this Court on 03.08.2022, the petitioner as well as the respondent No. 6 and the said Smti. Kalpana Kundu, shall also be furnished a copy of the report of hearing dated 29.05.2023. 12. Let such exercise be undertaken and completed within a period of 45 (forty five) days from the date of receipt of a certified copy of this Court’s Order. 13. With the above observations and directions, this writ petition is disposed of. JUDGE Comparing Assistant