Page No.# 1/11 GAHC010027872025 2025:GAU-AS:2083 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/874/2025 MD. ABUL HASEN S/O- LATE TURAB ALI, RESIDENT OF VILLAGE KESHARVITA, PO JHOWDANGA, P.S.- MANKACHAR, DIST- DHUBRI, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI-781006. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-781019 Advocate for the Petitioner : MR. S K TALUKDAR, MR. A SAYED,T R OVUNG,K A SODIAL Advocate for the Respondent : SC, ELEM. EDU, BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER 28.02.2025 1. Heard Mr. S.K. Talukdar, learned counsel for the petitioner, who submits that the Director of Elementary Education, Assam had decided to provincialise Page No.# 2/11 the service of the petitioner as a Social Science Teacher, as per the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the “2017 Act”. The same was affirmed by the Coordinate Bench of this Court in the common judgment dated 01.08.2024 passed in WP(C) 4881/2023 and WP(C) 4564/2023. However, the Director of Elementary Education has now issued a Show-Cause Notice dated 20.11.2024 to the petitioner, asking him as to why his service should be provincialised, as his name has not been found in the DISE data of the school from the 2012-2013 onwards, thereby re-opening a closed issue. 2. The case of the petitioner, Md. Abul Hasen, is that in terms of the order dated 17.12.2021 passed in I.A(C) 1881/2021 and WP(C) 3650/2021, the Coordinate Bench of this Court had directed the Director, Elementary Education, Assam to re-visit and reconsider the claim of the petitioner in WP(C) 3650/2021, for provincialisation of his service as a Social Science Teacher in Kesharvita M.E. School. 3. The relevant paragraph-5 of the order dated 17.12.2021 passed in I.A(C) 1881/2021 and WP(C) 3650/2021 is reproduced hereinbelow, as follows : “On a perusal of the documents filed with the writ petition, prima facie, it appears that Md. Abdul Akher Ali (respondent no. 4) is a Language Teacher appointed in the year 1993, the respondent Md. Safiul Hoque (respondent no. 5) is also a Language Teacher appointed in the year 2002. That as per Section 3(1)(xi) of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the “2017 Act”) provides for provincialisation of one Language Teacher along with one Social Science Teacher and one Mathematics/ Science Teacher. Therefore, as Md. Abdul Hasen (petitioner) is a Social Science Teacher Page No.# 3/11 appointed in the year 1998, the petitioner has been able to demonstrate a good prima facie case for requiring the Director of Elementary Education to revisit and re-consider the claim of Md. Abdul Hasen (petitioner) for provincialisation of his service as Social Science Teacher in Kesharvita ME School. The claim of the petitioner as Social Science Teacher is not disputed in the interlocutory application filed by the respondent no. 5.” 4. In pursuance to the above order dated 17.12.2021 passed in I.A(C) 1881/2021 and WP(C) 3650/2021, the Director of Elementary Education, Assam issued order dated 26.06.2023, by holding that as the petitioner’s name was recommended by the District Scrutiny Committee, Dhubri for provincialisation of his service as per the 2017 Act, as a Social Science Teacher against the Kesharvita M.E. School, vide DEEO, Dhubri letter dated 11.01.2018 and as the petitioner’s name was found to appear in the DISE verification data up to the year 2013 – 2014 against the Kesharvita M.E. School, the petitioner’s service should be provincialised. The relevant portion of the order dated 26.06.2013 passed by the Director of Elementary Education, Assam is reproduced hereinbelow, as follows : “In view of the above facts and materials on record it is seen that the petitioner Abul Hasen was appointed as 2nd Additional Assistant Teacher of Kesharvita MEM on 18/05/1998 and vide order dated 16/06/ 2017 it has been stated that he is liable to get all benefits of his services is AT of Kesharvita MEM and may be considered for provincialisation of services as per Act, 2017. Also, the name of the petitioner was recommended by DSC, Dhubri for provincialisation of services as per Act, 2017 as Social Science Teacher against Kesharvita MEM vide DEEO. Dhubri letter dated 11/01/2018. The respondent No. 4 Abdul Akher All was appointed on 3/12/2002 and so he is the junior language teacher among the two language teachers of Kesharvita MEM whose service has been provincialised as tutor on 04/02/2021, the other being Md. Saflul Haque Page No.# 4/11 who was appointed in the year 1993. Therefore, the claim of the petitioner. Abul Abul Hasen for provincialisation of services against Kesharvita MEM is considered though the name of the petitioner is found to appear in DISE verification data upto the year. 2013-14 against Kesharvita MEM and the provincialisation of services order issued vide this office Notification dated 04/ 02/ 2021 in respect of Abdul Akher Ali is hereby cancelled. This order is issued in compliance of the Hon'ble High Court Order dated 17/12/2021 passed in WP(C) 3605/ 2021.” 5. As no consequential order was forthcoming from the State Government for provincialising the service of the petitioner, in terms of the order dated 26.06.2023 passed by the Director of Elementary Education, Assam, the petitioner filed WP(C) 4881/2023, with a prayer to direct the State respondents to provincialise the service of the petitioner. At the same time, one Md. Abdul Akher Ali, who was a Language Teacher in the same school as the petitioner, also filed WP(C) 4564/2023. The provincialisation of the service of Md. Abdul Akher Ali had been cancelled vide order dated 26.06.2023 passed by the Director of Elementary Education, Assam due to Director of Elementary Education coming to a finding that the services of only one Language Teacher could be provincialised, instead of two. As the service of the petitioner was now to be provincialised and Md. Abdul Akher Ali being the junior Language Teacher, the provincialisation of his service was cancelled. It may be reiterated that the connection between the case of the petitioner in WP(C) 4881/2023 and the case of Md. Abdul Akher Ali in WP(C) 4564/2023 was that the services of two Language Teachers had been provincialised. However, due to the claim made by the petitioner for provincialisation of his service as a Social Science Teacher, the service of only one Language Teacher could be provincialised. As such, WP(C) Page No.# 5/11 4564/2023 filed by Md. Abdul Akher Ali was basically against one Safiul Hoque, another Language Teacher of the same school, as they both claimed provincialisation of their service to the lone Language Teacher post that was to be provincialised. The petitioner herein was also made respondent no.10 by Md. Abdul Akher Ali in WP(C) 4564/2023. 6. WP(C) 4881/2023 and WP(C) 4564/2023 were disposed of vide common judgment and order dated 01.08.2024, by directing the Director, Elementary Education, Assam to issue a consequential order towards provincialising the service of the petitioner herein w.e.f. 01.01.2021, within 45 days from the date of receipt of a certified copy of the order, vide paragraphs 55 and 56 of the said common judgment and order dated 01.08.2024. 7. Though the common judgment and order dated 01.08.2024, at paragraphs 55 and 56, had been made in favour of the petitioner, the petitioner was aggrieved with paragraph-54 and 57 of the said common judgment and order, wherein it had directed Md. Abdul Akher Ali [petitioner in WP(C) 4564/2023] to institute proceedings before the jurisdictional Educational Tribunal for establishing his claim for provincialisation of his service in the said school, by impleading the respondent nos.9 & 10 in WP(C) 4564/2023. The petitioner was aggrieved with paragraph-54 and 57 of the said common judgment and order dated 01.08.2024, as the issue of provincialisation of one post of Language Teacher was an issue to be adjudicated solely between Md. Abdul Akher Ali and the respondent no.9 (Safiul Hoque) in WP(C) 4564/2023 and the same had nothing to do with the provincialisation of the petitioner’s service, as per the recommendation made in favour of the petitioner Page No.# 6/11 (respondent no.10 in WP(C) 4564/2023), as a Social Science Teacher. 8. The petitioner accordingly filed WA 308/2024 before the Division Bench of this Court, making a challenge to paragraph-54 and 57 of the common judgment and order dated 01.08.2024 passed by the learned Single Judge in WP(C) 4881/2023 & WP(C) 4564/2023. WA 308/2024 was disposed of by the Division Bench of this Court, vide order dated 09.12.2024, by holding that the dispute regarding provincialisation of service of a Language Teacher was between Md. Abdul Akher Ali and Safiul Hoque and as such, the direction given in paragraph-54 of the judgment and order dated 01.08.2024 to implead the appellant (petitioner herein) as party respondent before the Educational Tribunal, was held to be unnecessary and unwarranted. The direction given by the learned Single Judge in the common judgment and order dated 01.08.2024, to implead the petitioner as party respondent in the Educational Tribunal, was interfered with and set aside. The Division Bench also held that the common judgment and order dated 01.08.2024 passed by the learned Single Judge was interfered with, only to the extent of the clarification made by the Division Bench. Paragraph nos. 5 & 6 of the order dated 09.12.2024 passed in WA 308/2024 is reproduced hereinbelow, as follows : “5. Taking into consideration the fact that the actual dispute regarding provincialisation of services as teacher is between the respondent No.1 and respondent No.10 herein, it appears that the direction given by the learned Single Judge to the respondent No.1 herein to implead the appellant and the respondent No.10 herein as party respondents before the Educational Tribunal is unnecessary and unwarranted. Hence, this writ appeal is allowed and the impugned order of the learned Single Judge to the extent of directing the respondent No.1 herein to implead the appellant as well as the respondent No.10 herein as party respondents in Page No.# 7/11 the Educational Tribunal is interfered with and the same is set aside. 6. We make it clear that the judgment and order dated 01.08.2024 passed by the learned Single Judge is interfered with only to the extent as clarified above and the other directions and observations of the learned Single Judge in the impugned judgment and order are not interfered with.” 9. The petitioner’s counsel submits that due to the above facts, the only course left open to the State respondents, was to obey the orders of the learned Co-ordinate Bench of this Court, as directed in the common judgment and order dated 01.08.2024 passed in WP(C) 4881/2023 and WP(C) 4564/2023 and as per the clarification given by the Division Bench in WA 308/2024. However, the Director of Elementary Education, Assam, vide Show-Cause Notice dated 20.11.2024 has asked the petitioner to submit a reply, as to why his service should be provincialised as per the 2017 Act, as he was found absent from the school from the year 2012 - 2013 onwards and as the School Managing Committee of the Kesharvita M.E. School had dismissed his service vide Resolution No.3 dated 03.11.2012. Further, the petitioner’s name was not reflected in the DISE date of the school after the year 2012 – 2013. 10. The impugned Show-Cause Notice dated 20.11.2024 issued by the Director, Elementary Education, Assam is reproduced hereinbelow, as follows : “Show Cause Notice. From the hearing report submitted by the Hearing Committee, regarding provincialisation of services of teachers of Kesharvita M.E. School as per Act, 2017, a speaking order was issued on 26/06/2023, wherein the provincialisation of services against you was considered. As per the report of Joint Committee dated, 24/07/2020, this office issued a letter to MD, Page No.# 8/11 SSA for verification of DISE data. Whereas, MD, SSA submitted DISE verification report, wherein, the appearance of your name in DISE data was found only for the period from 2011-12 and 2012-13 and thereafter it was found that your name did not appear in DISE after. Again, this office issued a letter to DEEO, Dhubri to verify records of the School, whether you were actually working in Kesharvita M.E. School after 2012-13 and also to furnish the reason why your name was not reflected in the DISE data, if you were working in the school to this office vide letter No. EPD/H/96/2023/54, dated 19/09/2024. In response to this office letter dated 19/09/2024, DEEO, Dhubri submitted report wherein it was mentioned that you were working in the school after 2012-13, though you were dismissed from service by the SMC of the School vide resolution no. 2, dated 03/11/2012 and thereafter no attendance is found in the School since April, 2013. Therefore, you are hereby directed to submit your written reply as to why your service is to be considered for provincialisation as per Act, 2017 as you are found absent in the school from the year 2012-13 and afterwards and also the SMC of Kesharvita M.E. School had dismissed your service vide resolution no. 2, dated 03/11/2012 as well as your name is not reflected in DISE data after 2012-13.” 11. The facts of the case show that the Director of Elementary Education, Assam had earlier found that the service of the petitioner had to be provincialised as a Social Science Teacher as per the 2017 Act and that the name of the petitioner was found to appear in the DISE verification data up to the year 2013 – 2014 against the Kesharvita M.E. School. The Co-ordinate Bench and the Division Bench of this Court had also clarified that the petitioner’s service was required to be provincialised. Once the Director of Elementary Education, Assam has taken a stand that the petitioner’s service was to be Page No.# 9/11 provincialised and that his name was found in the DISE data up to the year 2013 – 2014, the Director cannot now turn around and take a different stand by stating that the petitioner’s name was not found in the DISE data of the school from the year 2012 – 2013. If the Director was of the view that there had been a mistake on the facts of the case earlier, the Director should have asked for a review of the earlier orders passed by this Court. In the prima facie view of this Court, the Director cannot take action in total contravention of the direction passed by this Court and in complete variance with his own earlier finding on facts. 12. This Court had, vide order dated 19.02.2025, directed Mr. P.K. Bora, learned counsel for the Elementary Education to obtain instructions as to how the Director of Elementary Education, Assam could have gone beyond the orders passed by a Coordinate Bench of this Court, which has been clarified by the Division Bench of this Court, besides being in contradiction to the earlier decision of the Director. 13. Mr. P.K. Bora, has submitted letter N. EPD/H/96/2023/22 dated 25.02.2025, issued by the Director of Elementary Education, Assam to the Secretary to the Government of Assam, Department of School Education, Dispur, Guwahati, which is to the effect that in compliance with the order dated 26.06.2023 passed in WP(C) 4881/2023, the Secretary to the Government of Assam, Department of School Education, Dispur was requested to create 1 (one) post of Tutor for provincialisation of the service of the petitioner against Kesharvita M.E.M. under Dhubri District. The expenditure would be debitable under the Head of Account “2202-General Education-01-Elementary Education- Page No.# 10/11 101-Government Primary Schools-0165-Government Middle School-000-(No Sub-Sub-Head)-02-Wages-99-Others (EE) during 2024-25. 14. The operative portion of the letter dated 25.02.2025 issued by the Director of Elementary Education, Assam states as follows : “Therefore, in compliance of the order dated 26.06.2023 passed in WP(C) 4881/2023 by the Hon’ble Gauhati High Court, Govt. is kindly requested to create 1 (one) post of tutor for provincialisation of the services of the petitioner Md. Abul Hasen against Kesherita MEM under Dhubri District. The expenditure will be debitable under the Head of Account “2202- General Education-01-Elementary Education-101-Government Primary Schools-0165-Government Middle School-000-(No Sub-Sub-Head)-02- Wages-99-Others (EE) during 2024-25. This is for favour of Govt. kind information and necessary action.” 15. The letter dated 25.02.2025 issued by the Director of Elementary Education, Assam is made a part of the record and marked as Annexure-X. 16. Mr. P.K. Bora, learned counsel for the Elementary Education Department submits that the post of Tutor to be created for provincialisation of service of the petitioner would have to be against the Kesharvita M.E.M. and not Kesherita MEM. He submits that this is a typographical error and the same is clarified in the earlier paragraphs of the said letter dated 25.02.2025. Mr. P.K. Bora further submits that the said letter dated 25.02.2025 issued by the Director of Elementary Education, Assam implies that the impugned Show-Cause Notice dated 20.11.2024 has been withdrawn/cancelled by the Director of Elementary Page No.# 11/11 Education, Assam. 17. In view of the letter dated 25.02.2025 (Annexure-X) and the submissions/clarifications made by the learned counsel for the Elementary Education Department, the present writ petition is disposed of with a direction to the respondent authorities, to take necessary steps for creation of one post of Tutor and to issue necessary orders for provincialising the service of the petitioner against Kesharvita M.E.M. under Dhubri District. The same should be done within a period of 3 (three) months from the date of receipt of a certified copy of this order. Further, in terms of the submission made by the learned counsel for the Elementary Education Department that the impugned Show- Cause Notice dated 20.11.2024 is impliedly cancelled/withdrawn, the same is hereby set aside. JUDGE Comparing Assistant