Page No.# 1/7 GAHC010021192022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/999/2022 ABDUS SABUR RAHMAN S/O SAIYEDUR RAHMAN, VILL-DHORARGHAT PT-II, P.O.-SAHEBGANJ, P.S.- GAURIPUR, DIST-DHUBRI, ASSAM, PIN-783331 VERSUS 1.THE STATE OF ASSAM AND 6 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-06 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM CUM-CHAIRMAN OF STATE LEVEL SCRUTINY COMMITTEE ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 3:THE DEPUTY COMMISSIONER CUM-CHAIRMAN OF DISTRICT SCRUTINY COMMITTEE (ELE. EDUCATION) DHUBRI P.O. AND P.S.-DHUBRI ASSAM PIN-783301 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER DHUBRI P.O.-DHUBRI DIST-DHUBRI ASSAM PIN-783301 5:THE BLOCK ELEMENTARY EDUCATION OFFICER GOLAKGANJ P.O.-GOLAKGANJ DIST-DHUBRI ASSAM PIN-783331 6:JYOTSNA BALA RAY ASSTT. TEACHER/TUTOR OF BANIAMARI M.E. SCHOOL W/O SANTOSH ROY VILL-BANIAMARI P.O.-SAHEBGANJ P.S.-GOLAKGANJ DIST-DHUBRI ASSAM PIN-783331 Page No.# 2/7 7:ABDUL REZZAK ASSTT. TEACHER/TUTOR OF BANIAMARI M.E. SCHOOL S/O LT. ABDUL KARIM VILL-BANIAMARI P.O.-SAHEBGANJ P.S.-GOLAKGANJ DIST-DHUBRI ASSAM PIN-78333 Advocate for the Petitioner : MR. M R KHANDAKAR, Advocate for the Respondent : SC, ELEM. EDU, MS S CHAKRABORTY (R-6 & 7),GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 02-06-2025 Heard Mr. M.R. Khandakar, learned counsel for the petitioner. Also heard Mr. P.N. Sarma, learned Standing Counsel, Elementary Education Department for respondent Nos.1, 2, 4 and 5; Ms. K. Phukan, learned Government Advocate, Assam for respondent No.3 and Ms. S. Chakraborty, learned counsel for respondent Nos.6 and 7. 2. By filing this writ petition, the petitioner has put to challenge the provincialisation of the respondent Nos.6 and 7, namely, Jyotsna Bala Ray and Abdul Rezzak, as Teachers/Tutors in the subjects Social Studies and Language of Baniamari M.E. School in the district of Dhubri, Assam. 3. The petitioner joined his service as an Assistant Teacher (Additional) in Baniamari M.E. School in the district of Dhubri on 02.01.2007 and claims to have been teaching Social Science/Social Studies till the said School was provincalised. 4. It is the contention of the petitioner that the District Scrutiny Committee, Dhubri had recommended the names of the respondent Nos.6 and Page No.# 3/7 7, namely, Jyotsna Bala Ray and Abdul Rezzak, for provincialisation of their services in Social Studies and Language subjects despite the fact that the respondent No.6 taught only the Language subject in the said School, ignoring the fact that the petitioner has been teaching Social Studies subject. Therefore, the provincialisation of the respondent Nos.6 and 7 is not in accordance with the provisions of Assam Education (Provincialisation of Services of Teachers and Re- organization of Educational Institutions) Act, 2017 [hereinafter referred to be “the Act of 2017”]. 5. Mr. M.R. Khandakar, learned counsel for the petitioner, while referring to Entry Status of the Unified District Information System for Education, submits that the District Information System for Education (DISE) clearly shows that the respondent Nos.6 and 7 were teaching Language as main subject whereas the petitioner was teaching Social Studies as main subject. Therefore, the provincialiation of the service, particularly, of the respondent No.6 is not in accordance with the requirement as provided under Section 3(1) (xi) of the Act of 2017. As such, he prays that the provincialisation of the respondent No.6 may be set aside and quashed. 6. Mr. P.N. Sarma, learned Standing Counsel, Elementary Education Department, while referring to the affidavit-in-opposition dated 10.01.2025 filed on behalf of the respondent No.2, i.e the Director of Elementary Education, Assam, submits that as per the recommendation of the District Scrutiny Committee for provincialisation of services of three Teachers, one Ashraf Ali Sheikh as Maths and Science Teacher, Joytsna Bala Ray (respondent No.6) as Social Science Teacher and Abdul Razzak (respondent No.7) as Hindi Teacher in respect of Baniamari M.E. School, have been considered. However, the name of Page No.# 4/7 the petitioner was not recommended by the District Scrutiny Committee for provincialisation of service under the Act of 2017. 7. Mr. Sarma, learned Standing Counsel has further submitted that based on the recommendation of the District Scrutiny Committee, the proposal was placed before the State Level Scrutiny Committee (SLSC) followed by the Joint Committee constituted by the Government and both the Committees had recommended the names of the above referred three teachers, namely, Ashraf Ali Sheikh as Maths and Science subject Teacher, Joytsna Bala Ray in Social Science subject and Abdul Razzak as Hindi Language Tutor and accordingly, provincialized their services under the provisions of the Act of 2017 based on the enrolment position of the school. 8. Mr. Sarma, learned Standing Counsel further submits that as per the report of the District Elementary Education Officer, Dhubri, the petitioner was appointed as Additional Teacher by the School Managing Committee of the School in the year 2007 and thereafter, he was upgraded to the post of Assistant Teacher in the year 2014, whereas the respondent No.6 was appointed by the School Managing Committee in the year 1991 and she taught the subject Social Science. Further, as per DISE report furnished by the SSA, Assam, the enrolment positions during the year 2016-2017 and 2018-2018 were 85 and 104 respectively. 9. Mr. Sarma, learned Standing Counsel submits that it is clearly shown that one Ashraf Ali Sheikh was recommended as Math & Science Tutor, the respondent No.6 and 7 were recommended as Social Science and Hindi Tutors. Therefore, the respondent No.6 having been appointed in the year 1991 and the petitioner having been appointed in the year 2007, the respondent No.6 is much Page No.# 5/7 senior to the petitioner. It is further submitted that the initial appointment of the respondent Nos.6 and 7 and the petitioner shows that they were for all subjects, although they might have taught different subjects before provincialisation. The provincialisation of the services of the respondent Nos.6 and 7, therefore, is in accordance with the relevant Rules and more particularly, Section 3(1)(xi) of the Act of 2017. 10. Ms. S. Chakraborty, learned counsel for the respondent No.6 and 7, while adopting the submission of Mr. Sarma, learned Standing Counsel, Elementary Education Department, submits that provincialisation of the services of respondent Nos.6 and 7 has been effected after due process of selection including the recommendation by the District Scrutiny Committee and is in accordance with the provisions of Section 3 of the Act of 2017. 11. Considered the submissions of the learned counsel for the parties and perused the material available on record including the Act of 2017. 12. Bare perusal of the provisions of the 2017 Act, particularly, Section 3(1)(xi) shows that in case of Venture Upper Primary School there shall be minimum three teachers or tutors at least one teacher each for (a) Science and Mathematics (b) Social Studies and (c) Languages. Proviso to Section 3(1)(xi) of the said Act provides that for additional posts it shall be considered in accordance with the norms and standard stipulated in the Schedule under Section 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No.35 of 2009). Thus, the provisions of Section 3(1)(xi) of the Act of 2017 clearly provides for provincialistion of Venture Upper Primary School, 3 (three) teachers particularly one for Science and Mathematics, another for Social Studies and third for Language, a total of 3(three) Teachers/Tutors Page No.# 6/7 would be provincialised. 13. Record reveals that the respondent Nos.6 and 7 were appointed in the year 1991 and 2003, respectively, much earlier than the petitioner as the petitioner was appointed in the year 2007. The DISE Code as heavily relied upon by the learned counsel for the petitioner provides that all three of them were appointed for all subjects although they were shown to have been teaching only Language subject by the respondent Nos.6 and 7 and Social Studies by the petitioner. 14. The appointment order of the petitioner clearly shows that he was appointed as an Assistant Teacher (Additional) in the year 2007 without mentioning a particular subject. It also reveals from the record that the respondent Nos.6 and 7 were also appointed as Assistant Teachers without mentioning a particular subject although they appear to have been teaching Language subject, although shown to have been appointed for all subjects. 15. It is also to be noted that the requirement of Section 3 is for provincialiation of 3(three) Teachers in 3(three) subjects, i.e. (i) Science and Mathematics, (ii) Social Science and (iii) Language. It does not provide for any particular experience for appointment in the above referred three subjects. Thus, the claim of the petitioner that he having been taught the Social Studies subject and the respondent No.6 has been teaching the Language subject, he ought to have been considered for provincialiation in place of the respondent No.6, cannot be accepted. 16. During the course of dictation of this order, Mr. M.R. Khandakar, learned counsel for the petitioner, after completion of his argument by taking a Page No.# 7/7 considerable time and after having been considered by this Court, fervently urged that instead of deciding the writ petition on merit, the respondent authorities may be directed to dispose of the appeal filed by the petitioner under Section 14 of the Act of 2017. 17. Although the learned counsel for the respondents have vehemently objected to such prayer, having considered that the Act of 2017 provides for appeal before the appropriate authority under Section 14 of the said Act, creating a statutory right of an appeal, the prayer of the learned counsel for the petitioner for a direction to the respondent authorities to dispose of the appeal filed by the petitioner is reluctantly accepted. 18. Having considered as above, the respondent authorities, particularly, the Director of Elementary Education, Government of Assam, is directed to dispose of the appeal dated 18.10.2021 filed by the petitioner within a period of one month from today, taking into consideration the relevant facts in accordance with law. 19. Writ petition stands disposed of, accordingly. 20. Interim order passed earlier stands vacated. JUDGE Comparing Assistant