THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Principal Seat at Guwahati Writ Petition (Civil) No. 6968/2025. Anjuwara Khatun, W/o Abdur Roshid, Vill. – Mayer Char Pt-II, P.O. – Nayer Alga, P.S. – Bilasipara, Dist. – Dhubri, Assam, PIN – 783349. …… Petitioner. -Versus- 1. The State Level Scrutiny Committee, Represented by the Director of Elementary Education Department, Assam, Kahilipara, Guwahati - 19. 2. The State of Assam, Represented by the Secretary to the Government of Assam, Education (Elementary) Department, Dispur, Guwahati - 6. 3. The Director of Elementary Education Department, Assam, Kahilipara, Guwahati - 19. 4. The District Scrutiny Committee for Elementary Education, Represented by its Chairman cum Deputy Commissioner, Dhubri, Assam, GAHC010263352025 2026:GAU-AS:7531 PIN - 783301. 5. The District Elementary Education Officer, Dhubri, Dist. - Dhubri, Assam, PIN - 783349. 6. The Head Master cum Secretary, Uttar Ghunimari L.P. School, Vill. – Mayer Char Pt-II, P.O. – Nayer Alga, P.S. – Bilasipara, Dist. – Dhubri, Assam, PIN – 783349. …… Respondents. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Advocate for the petitioner :- Mr. M.U. Mahmud. Advocate for the respondent Nos. 1, 2, 3, 5 & 6 :- Mr. A. Phukan. Advocate for the respondent No. 4 :- Ms. D.D. Barman. Date of hearing :- 01.04.2026. Date of which judgment is reserved :- 01.04.2026. Date of pronouncement of judgment :- 01.06.2026. Whether the pronouncement if of the :- N/A operative part of the judgment? Whether the full judgment has been :- Yes pronounced? Page 3 of 26 JUDGEMENT & ORDER (CAV) Heard Mr. M.U. Mahmud, learned counsel for the petitioner; Mr. A. Phukan, learned Standing Counsel for the Elementary Education Department, being respondent Nos. 1, 2, 3, 5 & 6; and Ms. D.D. Barman, learned Additional Senior Government Advocate for the respondent No. 4. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the speaking order, dated 01.10.2024, issued by the Director of Elementary Education, Assam (DEE hereinafter) and also the decision of State Level Scrutiny Committee (SLSC hereinafter) dated 07.02.2024, whereby her claim for provincialisation as Assistant Teacher of Uttar Ghunimari L.P. School, was rejected. 2.1. Further, in this petition, the petitioner has also prayed for issuing direction to the respondent authorities to provincialise her service as Assistant Teacher of Uttar Ghunimari L.P. School. Background Facts:- 3. The background facts, leading to filing of the present petition, are adumbrated herein below:- “On 15.07.2004, the petitioner was appointed as Assistant Teacher of Uttar Ghunimari L.P. School and she joined the school on 18.07.2004, and since the date of her joining in the school, she has been working there without any break and with the satisfaction of all concerned. Thereafter, the said school was provincialised w.e.f. 01.01.2013, vide order No. EE(Plan)/Provn/Dhubri/Venture L.P/62/Pt-II/205/127, dated 09.12.2013, with 2 posts (one Head Teacher and one Assistant Teacher) by showing one post vacant. Though the post of Head Teacher was provincialised w.e.f. 01.01.2013, the post of the petitioner was not provincialised, but shown as vacant. The pleaded case of the petitioner is that the DLC, due to over sight, had recommended a wrong name in place of the petitioner to the DEE. Later on, though the DLC had rectified the mistake and recommended the name of petitioner for provincialisation, yet in the meantime, while the provincialisation of service of the petitioner was under process, this Court, vide order dated 23.09.2016, struck down the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 (Act of 2011 hereinafter). Thereafter, though the Government had enacted a new act, namely, the Assam Education (Provincialization of Service of Teacher and Re-Organization of Educational Institutions) Act, 2017 (Act of 2017 hereinafter), yet the service of the petitioner has not been provincialised till today. Being aggrieved, she had approached this Court by filing a writ petition, being W.P.(C) No. 5945/2021. Thereafter, considering the case of the petitioner, a Coordinate Bench of this Court was pleased to pass an order, dated 09.01.2024, by directing the DEE to consider her case by the SLC for provincialisation in terms of the recommendation made by the DLC, vide communication, dated 07.05.2015, and 17.11.2018, and to pass a speaking order, in the event that the petitioner is eligible to be provincialised and further directed that her service should be provincialised w.e.f. 04.02.2021. Thereafter, the DEE had placed the case of the petitioner before the SLC, on 07.02.2024 and as per the decision of SLC, the DEE had passed the impugned order, dated 01.10.2024, whereby the claim for provincialisation of her service as Assistant Teacher of Uttar Ghunimari L.P. School was rejected.” 4. Then being aggrieved, the petitioner has approached this Court by filing the present petition with the following relief. 5. The respondent No. 3, the DEE, has filed affidavit-in-opposition, wherein a stand has been taken that the Uttar Ghunimari L.P. School was provincialised during the year 2013, with provincialisation of Abdul Rashid and keeping one post vacant, as the other incumbent, namely, Mogol Hussain, was found to be not qualified. Thereafter, the respondent No. 5 had informed that the name of the petitioner was not recommended at the time of provincialisation due to inadvertent mistake. 5.1. Another stand taken by the respondent No. 3 is that based on the report of the respondent No. 5, the Government had directed to proceed with the matter of provincialization of service of the petitioner as per the Act of 2017, since the Act of 2011 was struck down by this Court, vide order dated 23.09.2016, passed in W.P.(C) 3190/2012. Thereafter, the proposal was placed before the SLSC, but the SLSC could not recommend the name of the petitioner as she did not fulfill the DISE criteria, and being aggrieved for non- provincialization of her services, she had filed a petition before this Court, being W.P.(C) 5945/2021 and this Court, vide order dated 09.01.2024, had directed the respondent authorities to place the case of the petitioner before the SLSC for consideration towards provincialization of her service under the Act of 2017. 5.2. 5.2. Accordingly, the proposal of the petitioner was placed before the SLSC, in its meeting held on 07.02.2024, and the SLSC had reviewed the case of the petitioner and found that the petitioner does not fulfill the DISE criteria, as her name is not appeared in the DISE Data till 2016 – 2017, and therefore, the SLSC had rejected her claim for provincialization of service and authorized the respondent No. 2 to issue speaking order and accordingly, vide impugned speaking order dated 01.10.2024, the respondent No. 2 had rejected the claim of the petitioner for provincialisation of her service as per the Act of 2017. 5.3. It is also stated that, thereafter, the petitioner had filed one writ petition, being W.P.(C) No. 6968/2025, wherein this Court, vide order dated 10.12.2025, had directed that the learned standing counsel for the Elementary Education Department, shall obtain instructions as to whether the petitioners of W.P.(C) No. 3499/2014 and W.P.(C) No. 6804/2017 were appointed by the State, in compliance with the direction passed in those writ petitions and if they have been appointed by the State, then their appointment letters shall be produced before the Court on the next date. 5.4. It is also stated that W.P.(C) No. 3499/2014, pertains to the Directorate of Secondary Education and W.P.(C) 6804/2017, pertains to the Directorate of Higher Education and that the DISE Data of Elementary School was maintained from 2006 – 2007 and accordingly, provincialization of services is done as per DISE related conditions under the Act of 2017, and for provincialization of schools, under Secondary Education, separate parameters are used and as such, the DISE related matter is not similar with Secondary Education institution as well as Higher Educational Institutions, with the Institution of Elementary Education. 5.5. It is further stated that the appointment orders of the petitioners in W.P.(C) No. 3499/2014, and W.P.(C) No. 6804/2017, are not issued by the Directorate and that the name of Mogol Hussain is found to be appeared in the DISE Data against the petitioner’s school from 2010 – 2011 till 2015 – 2016, i.e. during the provincialization, as per Act of 2011, year 2013. On the other hand, the name of the petitioner was found to be appeared in the year 2016 – 2017, after three years of provincialization of school during the year 2013, and that her name should have appeared in the DISE Data earlier as she had claimed to have joined the school on 18.07.2004, as per the Writ Petitions. Therefore, the matter of inadvertent mistake is doubtful. It is also stated that permanent retention of posts provincialized in the year 2013, has been issued by the Government only against posts, which are held by incumbents and all vacant posts are abolished and as such, the vacant post of the petitioner’s school is abolished and under such circumstances, it is contended to dismiss this petition. 6. The petitioner has also filed an additional affidavit, bringing on record one appointment order, dated 05.02.2025. Submissions of learned counsel for the petitioner:- 7. Mr. Mahmud, learned counsel for the petitioner submits that the petitioner was appointed in the year 2004, and since then, she has been rendering her service as Assistant Teacher in Uttar Ghunimari L.P. School and that the said school was provincialised in the year 2013. However, the service of the petitioner was not provincialised, for the reason that -instead of the name of the petitioner, the DLC had forwarded the name of one Mogol Hussain, but no person, by the name of Mogol Hussain was there. Subsequently, when the matter was brought to the notice of the DLC, the DLC had corrected the same and forwarded it to the SLC. But, the SLC had rejected the claim of the petitioner. 7.1. Mr. Mahmud further submits that though the case of the petitioner was considered under the Act of 2017, yet her case ought to have been considered under the Act of 2011, as the school has already provincialised in the year 2013, long before coming into force of the Act of 2017. Mr. Mahmud also submits that in view of Section 4(1) of the Act of 2011, the service of the petitioner is deemed to have been provincialised by operation of law. To bolster his submission, he has referred to a decision of this court dated 03.10.2018, in WP(C) No. 6804/2017(Dilip Das vs. The State of Assam and 2 Others) and decision dated 22.01.2019, in WP(C) No. 3499/2014 (Sailendra Nath Sarma vs. The State of Assam and 4 Others). 7.2. Referring to the order of appointment of one Sailendra Nath Sharma, the petitioner in WP(C) No. 3499/2014, which is annexed with the additional affidavit filed by the petitioner, Mr. Mahmud submits that pursuant to the direction passed in the said petition by this court the petitioner was appointed by the respondent authorities and that the present petitioner is similarly situated with the petitioner in the said petition and as such she is entitled to similar benefit. 7.3. Under such circumstances, Mr. Mahmud has contended to allow this petition by setting aside the speaking order and direct the respondent authorities to provincialise the service of the petitioner. Submissions of learned counsel for the respondents:- 8. Per-contra, Mr. Phukan, learned Standing Counsel for the Elementary Education Department, has vehemently opposed the petition. He submits that the case of the petitioner was considered under the Act of 2017, where one of the requirements of provincialisation of service is fulfillment of DISE criteria. But, the petitioner herein has failed to satisfy the requirement of DISE and therefore, her case could not be considered. 8.1. Further, Mr. Phukan submits that as per DISE data, the name of one Mogol Hussain was found to be reflected against the school where the petitioner is serving, but, his service could not be provincialised due to lack of qualification. 8.2. Under the given facts and circumstances Mr. Phukan also submits that this writ petition is devoid of merit and therefore, he has contended to dismiss the same. Consideration and Analysis:- 9. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the petition as well as the documents placed on record and also perused the impugned speaking order dated 01.10.2024. 10. The impugned speaking order, dated 01.10.2024, is extracted herein below:- Government of Assam Office of the Director of Elementary Education, Assam Kahilipara, Guwahati – 19 ORDER Read: The Hon’ble High Court Order dated 09.01.2024, passed in W.P.(C) No. 5945/2021 (Anjuwara Khatun v/s The State of Assam and others). Perused: 1. Proposal for Provincialisation of Services submitted by DEEO, Dhubri with recommendation of DSC, Dhubri letter dated 11/01/2018. 2. Minutes of meeting of SLSC, dated 21/11/2020. 3. Minutes of meeting of SLSC, dated 07/02/2024. 4. Minutes of meeting of Joint Committee, dated 24/07/2020. Findings: DSC. Dhubri submitted proposal for Provincialisation of services as per Act 2011 as amended in 2012 in respect of Uttar Ghunimari VLP School. This office submitted proposal to Govt. and accordingly, Govt. sanctioned one post and this office issued provincialisation order to Abdul Rasid against Uttar Ghunimari VLP School keeping one post vacant as per Govt. instruction vide letter No. PMA.29/2013/Ptiii/121, dated 22/11/2013. Communications were made with Govt. regarding provincialisation of service of Anjuwara Khatun against Uttar Ghunimari VLP School vide this office letter No. EPD-185/2013/Pt-i/52, dated 28/05/2016 and EPD- 185/2013/Pt-i/57, dated 17/09/2016. Page 12 of 26 In the meantime, as per the Hon'ble High Court order dated 23/09/2016, passed in WP(C) No. 3190/2012, "The Assam Venture Educational Institutions (Provincialisation of Services) Act. 2011." had been struck down and Govt. enacted "The Assam Education (Provincialisation of Services of Teachers and Re- organisation of Educational Institutions) Act, 2017" for provincialisation of services of teachers of venture Educational Institutions. Thereafter a letter was received from the Govt. regarding Provincialisation of Services of Anjuwara Khatun as A.T. of Uttar Ghunimari VLP School as per Act. 2017 due to repeal of the earlier Act, 2011 as amended 2012 vide Govt. Letter No. PMA-241/2016/35, dated 17/11/2018. Accordingly, DEEO, Dhubri submitted the proposal for Provincialisation of Services as per Act 2017 along with recommendation of DSC, Dhubri to this office and this office submitted the proposal along with recommendation of SLSC as well as Joint Committee constituted by Govt. under Chairmanship of R.C. Jain, IAS (Retd.) Chairman, SEBA to examine the proposal for Provincialisation of Services as per Act. 2017 vide Govt. Notification No. PMA. 162/2019/600- A dated 18/03/2019. Subsequently, as per minutes of the Joint Committee meeting held on 24/07/2020 decision was taken to instruct the Mission Director, SSA to verify the following DISE related parameters: (a) Whether the name of school appear in DISE data (maintained by NUEPA New Delhi) of 2009 or before. (b) Whether the name of incumbent appear in the DISE data of 2011 and afterwards. (c) Enrolment position of the school during 2016-17 and 2017-18. Page 13 of 26 Accordingly, SSA, Assam submitted the DISE data in which the name of petitioner Anjuwara Khatun, A.T. of Uttar Ghunimari VLP School does not appear in DISE data up-to 2011-12. The proposal as received from DSC, Dhubri was placed before the SLSC as well as Joint Committee constituted by Govt. in respect of Provincialisation of Services of the petitioner, Anjuwara Khatun against Uttar Ghunimari VLP School. Upon verification of the DISE data as submitted by SSA, Assam, it had been found that the petitioner, Anjuwara Khatun does not fulfil the criteria as laid down in the minutes of the Joint Committee meeting as the name of the petitioner does not appear in the DISE data of up to 2011-12. In view of the mentioned facts SLSC as well as the Joint Committee constituted by Govt. could not recommend the name of the petitioner, Anjuwara Khatun for provincialisation of services as per Act, 2017. Being aggrieved, the petitioner Anjuwara Khatun filed a court case before Hon'ble Gauhati High Court in WP(C) 5945/2021, and the Hon'ble Court passed an order dated 09/01/2024 in WP(C) 5945/2021 with a direction to dispose of the writ petition stating that "view of the above, this writ petition is disposed of directing the Director of Elementary Education, Assam to forthwith have the case of the petitioner considered by the State Level Committee for provincialisation of her services in terms of the recommendation made by the District Level Committee and as indicated in the communication dated 07.05.2015 and 17.11.2018, referred to hereinabove. The said exercise be initiated and completed within a period of 3(three) months from the date of receipt of a certified copy of this order. The outcome of this exercise be communicated to the petitioner in the form of a speaking order and in the event the petitioner's services are found to be eligible to be provincialised, her such services shall be provincialised w.e.f. 04.02.2021." Accordingly, matter is placed before SLSC, dated 07/02/2024 and it was found that: i. The name of petitioner was recommended by DSC, Dhubri for provincialisation of services as per Act, 2017. Page 14 of 26 ii. The proposal was placed before SLSC, as well Joint Committee constituted by the Govt. and forwarded to the SSA, Assam for verification of petitioner name in DISE. iii. But, the petitioner, Anjuwara Khatun does not fulfil the criteria as laid down in the minutes of the Joint Committee meeting, since the name of the petitioner does not appear in the DISE data of up to 2011-12. Accordingly, SLSC decided and authorized DEE, Assam to reject the claim of petitioner for provincialisation of services as per Act/2017 by issuing a Speaking order. Decision: - As per clause 4(iii) of the Act, 2017, the teachers of Venture Education Institutions are to be eligible for provincialisation of services, who joined in the institution on or before 31/12/2010. Accordingly, the Joint committee vide minutes dated 24/07/2020 resolved for uniformity of the date of joining to verify the appearance in DISE data for the year 2011- 12 and afterwards as the DISE data is updated in September every year. But the petitioner name does not appear in DISE data upto 2011-12, hence, SLSC as well as Joint Committee could not recommend the name of petitioner, Anjuwara Khatun for provincialisation of services as per Act, 2017 against Uttar Ghunimari LP School and accordingly claim of the petitioner is hereby rejected. This order is issued in compliance of the Hon'ble High Court order, dated 09/01/2024, passed in WP(C) 5945/2021- (Anjuwara Khatun V/s The State of Assam & others). S/d- Smti. Suranjana Senapati, ACS Director Elementary Education, Assam Kahilipara, Guwahati-19 11. It appears from the impugned order that the petitioner does not fulfill the DISE criteria. It also appears that as per clause 4(iii) of the Act, 2017, the teachers of Venture Education Institutions, in order to be eligible for the provincialisation of services, must have joined the institution on or before 31/12/2010. Further, from the minutes of the Joint Committee, dated 24/07/2020, it appears that it has been resolved for uniformity of the date of joining to verify the appearance in DISE data for the year 2011-12 and afterwards. Further it appears that the name of the petitioner did not appear in DISE data up to 2011-12, and therefore the SLSC, as well as Joint Committee, could not recommend the name of petitioner, for provincialisation of services as per Act, 2017 against Uttar Ghunimari LP School. 12. It is not in dispute that the case of the petitioner is considered under the Act of 2017, not under the Act of 2011, as the same was struck down by Division Bench of this Court, vide order dated 23.09.2016, in W.P.(C) No. 3190/2012. 13. But, the pertinent question is, under which Act, the case of the petitioner ought to have been considered. 13.1. It is worth mentioning in this context that the school, in which the petitioner has been serving, was provincialised in the year 2013, vide order dated 09.12.2013, while the Act of 2011 was holding the field. But, the said Act was struck down by this court, vide order dated 23.09.2016, in W.P.(C) No. 3190/2012. 13.2. Before proceeding further, this court deems it necessary to look into the repeal and saving provision of the Act of 2017. Provision. The relevant provision is Section 24 of the Act of 2017, is read as under:- “The Assam Venture Educational Institutions (Provincialisation of Services)Act, 2011 as amended vide the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment)Act, 2012 and the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2013, which have been struck down by the Hon'ble Gauhati High Court vide order dated 23.09.2016 in WP(C) No. 3190/2012, and all rules, orders, notifications issued there under, shall stand repealed, however, all the teachers whose services were provincialised prior to 23.9.2016, shall continue and their cases shall be reviewed as per the eligibility norms set forth for provincialisation under this Act.” 14. In the instant case, the petitioner was appointed as Assistant Teacher of Uttar Ghunimari L.P. School on 15.07.2004. Since then, the petitioner has been rendering her services. The statement and averments in this regard by the petitioner in the paragraph No. 3 of the petition have remained un-traversed in the affidavit in opposition filed by the respondent No.2. On account being non- traversed, the same has to be accepted as admitted by the respondent authorities more particularly by the respondent No.2. The school, i.e. Uttar Ghunimari L.P. School, in which the present petitioner is serving, was provincialised, and two posts, one Headmaster and one Asstt. Teacher were created and the post of Asstt. Teacher is lying vacant, prior to the date so mentioned in Section 24 of the Act of 2017, i.e. on 23.9.2016. In that view of the matter, this court is of the view that applicable Act here in would be the Act of 2011. 14.1. Further perusal of Section 4(1) of the Act of 2011, reveals that on the date of coming into force of the Act of 2011, the services of employees of all eligible venture educational institutions shall be deemed to have been provincialised and they shall become employees of the State Government with effect from that date, provided such institutions have completed at least 7 years of imparting education from the date of affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act. Notably, the said Act came to be notified in the official Gazette on 5th September, 2011. Thus, having been appointed on 15.07.2004, the petitioner had already completed 7 years, when the Act of 2011, came into force and it also appears that the petitioner had fulfilled the requirements of Section 3 of the said Act. It is to be noted here that the School has already been provincialised, creating two posts, i.e. one head master and another Asstt. Teacher and provincialising the service of the Head Master. Notably, the petitioner was left out on account of mistake committed by the DLSC, while forwarding the name of the Assistant Teacher. Though, the mistake was corrected, the same was not accepted by the SLC and Joint Committee by holding the explanation for the mistake as doubtful. 14.2. The provision of Section 4(1) is extracted herein below:- "The services of the employees of all eligible Venture Educational Institutions under Section 3 shall be deemed to have been provincialised on the date of coming into force of this Act and they shall become employees of the State Government with effect from that date, provided such institutions have completed at least 7 years of imparting education from the date of affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act. Provided that the services of those employees of the Venture Educational Institutions eligible for provincialisation under Section 3 which have not completed 7 years of their imparting education from the date of their affiliation, recognition, concurrence or permission, as the case may be, as on the date of coming into force of this Act, shall be provincialised as and when the concerned educational institution completed 7 years of Imparting education from the date of such affiliation, recognition, concurrence or permission, as the case may be." 14.3. It also appears that Section 10 of the Act provides for constitution of District Scrutiny Committee and Sub-Section (4) provides that the District Scrutiny Committee shall forward the verified list of eligible teachers school-wise in accordance with the number of posts specified in the Schedule appended to this Act, to the concerned Director who shall, 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 employees eligible for getting their services provincialised. In the instant case, the DLSC has forwarded the names of two teaches, one of whom was already provincialised and the name of the petitioner was mistakenly forwarded, for which her service was not provincialised though subsequently the mistake was rectified by DLSC, yet, in the meantime the Act of 2011 was struck down and her case was considered under the Act of 2017, and due to non- fulfillment of DISE criteria the same was rejected. But, such a criteria was not there in the Act of 2011, and the requirement of Section 3 of the said Act has already been held to be fulfilled. 14.4. Indisputably, in the instant case, the school was provincialised in the year 2013, by creating two posts, one for Headmaster and another for the Assistant Teacher. But, the post of Assistant Teacher has not been filled up. In that view of the matter, under Section 4(1) of the Act of 2011, the service of the petitioner is deemed to have been provincialised w.e.f. the date of coming into force of the said Act. Mr. Mahmud, learned counsel for the petitioner has rightly pointed this out and the decisions in WP(C) No. 6804/2017(Dilip Das vs. The State of Assam and 2 Others), and in WP(C) No. 3499/2014 (Sailendra Nath Sarma vs. The State of Assam and 4 Others), referred by him also strengthened the same. 14.5. In the case of Dilip Das (supra) [WP(C) No. 6804/2017(Dilip Das vs. The State of Assam and 2 Others)], a Co-ordinate Bench of this Court, while dealing with the issue, specially Section 4(1) of the Act 2011, has held as under:- “9. It is an admitted position that upon verification of the numbers of the employees of the Pachim Guwahati Mahavidyalaya, the authorities arrived at a conclusion as per Annexure-5 page 16 statement that the petitioner is within the permissible number as provided in the Schedule to the Act of 2011. Once this conclusion is arrived at by the authorities, there is no further requirement of issuing any order to provincialise the service of the petitioner inasmuch as, his service stood provincialised by operation of law u/s 4(1) of the Act of 2011. 10. In the present case, some other dissatisfied employees of the college had assailed the statement showing the inclusion of the petitioner within the numbers provided in the Schedule, which upon being assailed, was initially stayed by this Court by the order dated 27.05.2013 in WP(C) No.2908/2013. But, subsequently by the order dated 01.09.2016, the interim order so passed, stood vacated, meaning thereby that the statement including the name of the petitioner within the numbers specified in the Schedule stood as it was. 11. A stand had been taken by the authorities in the Higher Education Department that by the judgment and order dated 23.09.2016 in WP(C) No.5825/2012, the Act of 2011 was declared to be ultra-vires. According to the learned Standing Counsel for Higher Education Department, it is the view of the Department that as the Act had already been declared ultra-vires, therefore, no further order for provincialisation of the petitioner can be effected by the Department. 12. It is taken note of that although by the judgment and 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. Page 22 of 26 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 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. 16. With the above observation, this writ petition stands allowed and the petitioner be provided with the benefits of provincialisation from the date on which the Act of 2011 came into force, which is 01.01.2013." 14.6. Another Co-ordinate Bench of this Court also in the decision dated 22.01.2019, in WP(C) No. 3499/2014 (Sailendra Nath Sarma vs. The State of Assam and 4 Others) has followed the decision in the case of (Dilip Das vs. The State of Assam and 2 Others), and held as under:- “9. I have gone through the contents of Section 3 and Section 4 of the Act of 2011 and also gone through the contents of Section 24 of the Act of 2011. I have also gone through the judgment passed in the Review Petition No.167/2016 and the judgment dated 03.10.2018 of this Court passed in WP(C) 6804/2017. Considering the facts and circumstances of the case of the petitioner in WP(C) 6804/2017 and the case of the petitioner in this case, I find that facts and circumstances of the two cases are quite similar. Considering the provisions of Section 4 of the Act of 2011 and the judgment passed In Review Petition NO.167/2016, I am in total agreement with the judgment passed by the Coordinate Bench dated 03.10.2018 in the WP(C) 6804/2017. Therefore, I am of the considered view that the petitioner should be deemed to have been provincialised on the day the other employees were provincialised. Hence the writ petition is allowed and the respondents are directed to issue necessary orders within a period of 2 (two) months from the date of receipt of the copy of this order.” 14.7. Thus, having gone through the provision of Section 4(1) of the Act of 2011, and also having gone through the pleadings of the parties and the submissions of their respective counsel, this Court finds that the present petitioner is similarly situated with the petitioners in W.P.(C) No. 3499/2014 and W.P.(C) No. 6804/2017. And therefore, the present petitioner is entitled to similar benefits like the petitioners in the said two writ petitions. The service of the present petitioner is deemed to have been provincialised on the day on which the other teachers of the school were provincialised by operation of law, i.e. Section 4(1) of the Act of 2011. Further from Annexure-A1 of the additional affidavit, filed by the petitioner, indicates that the petitioner in W.P.(C) No. 3499/2014, has already been appointed by the respondent of the said petition. Mr. Mahmud, learned counsel for the petitioner has also submitted that the petitioner in other writ petition, being W.P.(C) No. 6804/2017, was also appointed by the state respondent. 15. Though in the affidavit-in-opposition, the respondent No. 3 had taken a stand that a Coordinate Bench of this Court, in W.P.(C) No. 5945/2021, vide order dated 09.01.2024, had directed to place the case of the petitioner before the SLC for consideration towards provincialisation of her service under the Act of 2017, yet nowhere in the said order, dated 09.01.2024, this Court was pleased to direct respondent authority to consider the case of the petitioner under the Act of 2017. What was said in the aforesaid order was that vide a communication dated 17.11.2018, the Government in Education Department had directed the DEE to consider the case of the petitioner as recommended by the SLC for provincialisation of her service, under the Act of 2017. But, it was not the direction of the Court. The Court had only referred to the letter, dated 17.11.2018, issued by the Government in the Education Department, wherein the DEE was directed to consider the case of the petitioner as recommended by the SLSC for provincialisation, under the Act of 2017. 16. In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned speaking order, so passed by the respondent No. 3, dated 01.10.2024, stands set aside and quashed. 17. The respondent authorities, more particularly, the respondent No.3, by a mandamus of this court, are directed to consider the case of the petitioner under Section 4(1) of the Act of 2011 and if it is found that the petitioner fulfills the requirement of Section 3 so as to reap the benefits of Section 4(1) of the Act of 2011, then to issue necessary order of provincialisation of service of the petitioner with effect from the date from which the School was provincialied. 18. Let the aforementioned exercise be carried out within a period of 3 (three) months from the date of receipt of certified copy of this order. 19. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of 1 (one) week from today. 20. The parties have to bear their own costs. JUDGE Comparing Assistant