Page No.# 1/6 GAHC010121172022 2025:GAU-AS:16760 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4252/2022 BAZLUL BASIT AND ANR SON OF LATE GAZI RAHMAN, RESIDENT OF VILLAGE- TARANGAJHAR, P.O- JAMA DARHAT, P.S.- FAKIRGANJ, DISTRICT- DHUBRI, ASSAM, PIN- 783330. 2: SAIFUL ISLAM SON OF LATE ABDUL GONI RESIDENT OF VILLAGE- TARANGAJHAR P.O- JAMA DARHAT P.S.- FAKIRGANJ DISTRICT- DHUBRI ASSAM PIN- 783330 VERSUS THE GOVERNMENT OF ASSAM AND 2 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION ( SECONDARY) DEPARTMENT, DISPUR, GUWAHATI-19 2:THE DIRECTOR OF SECONDARY EDUCATION DEPARTMENT KAHILIPARA GUWAHATI-19 ASSAM. 3:THE INSPECTOR OF SCHOOLS DHUBRI DISTRICT CIRCLE DHUBRI DISTRICT- DHUBRI ASSAM Advocate for the Petitioner : MS M DAS, Page No.# 2/6 Advocate for the Respondent : SC, SEC. EDU., BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 01.12.2025 Heard Ms. M. Das, learned counsel for the petitioners. Also heard Mr. B. Kaushik, learned standing counsel for the respondents in Secondary Education Department. 2. In this petition, under Article 226 of the Constitution of India, the petitioners have prayed for issuing direction to the respondent authorities to provincialize their services as Assistant Teacher under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 in H.R. Memorial High Madrassa, and also to grant retrospective provincialization service benefits to them as Assistant Teacher w.e.f. 01.01.2013, under Section 4 of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011. 3. Ms. Das, learned counsel for the petitioners submits that the petitioners are aggrieved by the impugned action of the respondent authorities, whereby the service of the petitioners were arbitrarily provincialized under the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (‘Act of 2017’, for short) as Tutor, instead of the Assam Venture Educational Institution (Provincialization of Services) Act, 2011 (‘Act of 2011’, for short), by violating Section 4 of the Act of 2011. Ms. Das also submits that the name of the petitioners were excluded from the list of provincialization under the Act of 2011, without any cogent reason, although the Page No.# 3/6 petitioners have possessed all requisite criteria for provincialization as per Section 4 of the Act of 2011. However, the respondent authorities had provincialized the services of all other staffs as Assistant Teacher, but the petitioners as Tutor, which is a clear discrimination under the law. 3.1. Ms. Das further submits that similarly situated employees had filed one writ petition, being WP(C) No. 6804/2017, wherein a Co-ordinate Bench of this Court, vide judgment and order dated 03.10.2018, had held that as per Section 4 of the Act of 2011, all eligible Teachers appended in Schedule are entitled for provincialization of their services under the Act, as their services were considered by the Act as deemed to be provincialized, and that the present petitioners are also entitled to similar relief and that the present petition may also be disposed of by granting similar relief to the present petitioners. 4. Mr. 4. Mr. Kaushik, learned standing counsel for the respondents in Secondary Education Department submits that he has no objection in the event of disposing of this petition granting similar relief to the petitioners in view of the decision of a Co-ordinate Bench of this Court in WP(C) No. 6804/2017 and also in light of the decision of a Division Bench of this Court in Mohor Ali Sheikh and Ors. vs. State of Assam and Anr., reported in 2024 (5) GLT 689. 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, and also gone through the decision of a Co-ordinate Bench of this Court in WP(C) No. 6804/2017. 6. In WP(C) No. 6804/2017, especially in paragraph Nos. 12, 13, 14 and 15, a Co-ordinate Bench of this Court has held as under: “12. It is taken note of that although by the judgment and Page No.# 4/6 order dated 23.09.2016 in WP(C) No.5825/2012, the Act of 2011 was declared to be ultra-vires, but by a subsequent decision dated 02.01.2017 in Review Petition No.167/2016, it had been provided that the rights of the employees, who have been benefited under the struck down statute can be taken care of by giving retrospective effect to the proposed legislation, if the legislature so decides and till then, the services of the provincialised category and their status as Government employees shall not be disturbed and they will continue to receive all the benefits which they are getting under the Provincialisation Act of 2011. 13. In the instant case, as already concluded hereinabove, the petitioner being included within the numbers specified in the Schedule and there being no other impediment, his service stood provincialised by operation of law u/s 4(1) of the act of 2011. Therefore, the case of the petitioner would also be covered by the provision of paragraph-19 of the decision of the Division Bench of this Court dated 02.01.2017 in Review Petition No.167/2017 and the benefits of provincialisation that accrued to him by operation of law shall remain. 14. In view of the above, as the service of the petitioner stood provincialised u/s 4(1) of the Act of 2011, the Court is of the view that there is no requirement of any further administrative order by the Department to provincialise his service and all that is required is to recognize that his service already stood provincialised u/s 4(1) of the Act of 2011 in the facts and circumstance of the present case. 15. It is clarified that this order has been passed upon an interpretation of the provisions of Section 4(1) read with Section 10(4) and the Schedule to the Act of 2011 and has been passed only upon the circumstance that prior to the Act of 2011 being declared ultra-vires, the authorities had already arrived at a conclusion that the petitioner is Page No.# 5/6 included within the number of posts under the Schedule to the Act of 2011 and therefore, it being so, his service stood provincialised by operation of law u/s 4(1) of the Act of 2011. It is also provided that as even the Government had accorded their approval to the aspect that the petitioner came within the number of posts provided in the Schedule before the Act was declared ultra-vires, the provisions of this order be not construed to provide that provincialisation can still go on under the Act of 2011 even in the absence of the situation based upon which this order is passed.” 7. In the case in hand, the basic facts are not in dispute. The services of the petitioners were provincialized as Tutor, under the Act of 2017, in spite of fulfilling the criteria for being provincialized under the Act of 2011. But, the respondent authorities have provincialized the services of some of the similarly situated Teachers under Section 4 of the Act of 2011. 8. In that view of the matter, this Court is inclined to dispose of this petition by directing the respondent authorities to examine the case of the petitioners in the light of the decision of a Co-ordinate Bench of this Court in WP(C) No. 6804/2017, vide judgment and order dated 03.10.2018. And if the respondent authorities find that the petitioners are similarly situated with the petitioners of WP(C) No. 6804/2017, then similar benefit may be granted to the present petitioners also. 9. The aforesaid exercise shall be carried out within a period of six weeks from the date of receipt of certified copy of this order. The petitioners shall obtain certified copy of this order and place the same before the respondent authorities within a period of two weeks from today. Page No.# 6/6 10. In terms of above, this writ petition stands disposed of. JUDGE Comparing Assistant