Page No.# 1/13 GAHC010054622025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/1717/2025 SHOHIDUR RAHMAN S/O- NASIR UDDIN SHEIKH, VILL- BANGALJHAR, P.O.- BASHBARI, DIST.- GOALPARA, ASSAM. VERSUS 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 KAHILIPARA GUWAHATI-19. 3:THE CHAIRMAN DISTRICT LEVEL SCRUTINY COMMITTEE (DLSC) GOALPARA ASSAM-CUM-THE ADDITIONAL DISTRICT COMMISSIONER (EDUCATION) GOALPARA ASSAM. 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER GOALPARA ASSAM. 5:THE BLOCK ELEMENTARY EDUCATION OFFICER BALIJANA EDUCATION BLOCK GOALPARA ASSAM. Page No.# 2/13 6:SHAJAHAN ALI MONDAL S/O- LATE JOMSER ALI MONDAL VILL- SAKTOLA PO.- AOLATOLI P.S.- LAKHIPUR DISTRICT- GOALPARA ASSAM PIN- 783129. 7:MD. MOFIDUL ISLAM S/O- LATE HABIBAR RAHMAN VILL- BAPURBHITA P.O.- DHAMAR RESERVE P.S.- BAGUAN DIST.- GOALPARA ASSAM PIN- 783129 Advocate for the Petitioner : MR A R BHUYAN, MR T T MONI,MR. A M KHAN Advocate for the Respondent : SC, ELEM. EDU, GA, ASSAM BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER (CAV) Date : 10-04-2025 Heard Mr. AR Bhuyan, learned counsel for the petitioner. Also heard Ms. S Chutia, learned counsel for the respondent Nos. 1, 2, 4 & 5 as well as Mr. G Pegu, learned counsel for the respondent No. 3. 2. No one appears for the respondent Nos. 6 & 7 as no notice has been issued to the respondent Nos. 6 & 7. 3. The learned counsel for the petitioner prays that the impugned Resolution No.2 dated 23/24th July, 2024, adopted by the District Level Scrutiny Committee (DLSC), Goalpara, Assam, in it’s meeting dated 23.07.2024 should be set aside, Page No.# 3/13 along with the impugned order dated 05.11.2024 issued by the DEEO, Goalpara. The further prayer of the petitioner is for a direction to be issued to the State respondents, to determine the seniority amongst the petitioner as well as the respondent Nos. 6 & 7, to avail the benefit of provincialization of services as Tutor against the subject Social Science and Languages in respect of K.B. Memorial ME Madrassa, in terms of the Assam Education (Provincialisation of Services Of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the ‘2017 Act’). 4. Though the petitioner has prayed for setting aside the Resolution No.2 dated 23.07.2024 adopted by the DLSC, Goalpara, Assam in it’s meeting dated 23.07.2024, the same has not been annexed to the writ petition. 5. The letter dated 05.11.2024, which has been put to challenge, states as follows:- Sub:- WP(c) No. 4047/2023-Shajahan Ali Mondal-Vs- State of Assam. Ref:- Minutes of the Meeting dated 23/07/2024 Madam, With reference to the subject cited above, I have the honour to inform you that as per the direction of the Department of School Education, Assam vide letter No E-372565/161 dtd 22/02/2024, the DLC, Goalpara was Scheduled on 24/07/2024 in connection with the WP(c) No. 4047/2023-Shajahan Ali Mondal-Vs- State of Assam and accordingly the DLC, Goalpara has been examine the proposal for provincialization of staffs in respect of K.B. Memorial MEM and as per resolution No. 2 of the Minutes of the meeting dtd 23/07/2024 it is found that Shahjahan Ali Mondal (petitioner) is senior than Shohidul Islam ( respondent No. 6) Page No.# 4/13 and also instructed to the DEEO to submit the proposal for provincialization as per seniority. In this regards, I have the honour to submit herewith all the document of the both teaching staffs to re consider the provincialization proposal. This is for favour of your kind information and necessary action.” 6. It may be stated here that the writ petitioner herein is the respondent No. 6 in the above letter dated 05.11.2024 and Shajahan Ali Mondal (petitioner) is the respondent No. 6 in this case. Interestingly, the petitioner’s counsel submits that the petitioner’s service had been provincialized as Tutor in Arabandha L.P. School (Second Base School), vide order No. EPD-16/Provn-UP (Act.2017)/2021/2785. 7. The petitioner’s case is that the respondent No.6 filed E.T. No. 01/2020, under the provisions of the 2017 Act in the Educational Tribunal, for setting aside the Panel of Teachers of K.B. Memorial ME Madrassa recommended by the DLSC, Goalpara, for provincialization of their services, which included the petitioner and not the respondent No. 6. However, the same was withdrawn by the respondent No.6 vide order dated 05.10.2021. 8. The respondent No.6 thereafter filed WP(C) No.4256/2021, wherein the petitioner was a party, which was also withdrawn vide order dated 09.05.2022. WP(C) No.4256/2021 had been withdrawn by the respondent No.6, on the ground that the matter involved disputed questions of facts. This Court while allowing the writ petition to be withdrawn had held that the same would not preclude the respondent No.6 from filing an appeal under Section 14 of the Page No.# 5/13 2017 Act. 9. The respondent No.6 thereafter filed WP(C) No.5447/2022, wherein the writ petitioner herein was the respondent No.6. This Court disposed of WP(C) No.5447/2022 vide order dated 24.08.2022, by directing the Director of Elementary Education to dispose of the appeal filed by the respondent No.6. WP(C) No.5447/2022 had been filed due to the respondent No.6 being aggrieved with the recommendation of the District Scrutiny Committee, Goalpara, recommending the writ petitioner herein for provincialization as a subject teacher of Social Studies. It was the case of the respondent No.6 that the Headmaster of K.B. Memorial ME Madrassa had proposed the name of the writ petitioner for the Assamese subject and the name of the respondent No.6 for Social Studies. However, the writ petitioner was recommended for provincialisation as a Social Studies teacher. The relevant paras 2 to 5 of the order dated 24.08.2022 passed in WP(C) 5447/2022 is reproduced herein below as follows:- “2. The petitioner is aggrieved with the recommendation of the District Scrutiny Committee, Goalpara, whereby, the name of the respondent No.6 (Sri. Shohidur Rahman) was recommended for the subject Social Studies and the name of the petitioner was dropped. It is the case of the petitioner that the Head Master of K.B. Memorial M.E. Madrassa had proposed the name of the respondent No.6 for Assamese subject and the name of the petitioner for Social Studies. 3. Being aggrieved with the recommendation of the District Scrutiny Committee, petitioner filed a writ petition which was registered as WP(C)/4256/2021.The said writ petition was withdrawn on 09.05.2022. However, with a liberty to file an appeal under Section 14 of the Assam Education (Provincialisation of Services of Teachers and Re- organization of Educational Institutions), Act 2017, (Act of 2017 in short). Page No.# 6/13 4. Thereafter, the petitioner filed an appeal before the Director, Education, Elementary Department on 30.05.2022. Grievance of the petitioner in the present writ petition is that the Director of Elementary Education Department/respondent No.3 is still not considering the appeal filed by the petitioner and prays for a direction to the respondent No.3 for an early disposal of the appeal filed by the petitioner on 30.05.2022. Accordingly, writ petition is disposed of directing the respondent No.3 to consider and dispose of the appeal filed by the petitioner on 30.05.2022 by passing a reasoned order in accordance with law within a period of 2(two) months from the date of receipt of the order of this Court. 5. With the above observations and directions, the writ petition is disposed of.” 10. In pursuance to the order dated 24.08.2022 passed in WP(C) No.5447/2022, the Director of Elementary Education issued the order dated 02.01.2023, which is as follows:- "Order: In view of the above facts and circumstances and as the name of petitioner Shahjahan Ali Mondal was not recommended by DSC, Goalpara and DSC, Goalpara recommended 3(three) teachers under Clause 3(1)(xi) therefore, the claim of petitioner Shahjahan Ali Mondal for provincialisation of services could not be considered under the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017. Hence the claim of provincialisation of service of petitioner Shahjahan Ali is hereby rejected.)” 11. The respondent No.6 thereafter filed WP(C) No.4047/2023, as his claim for provincialisation had been rejected by the Director, in his order dated 02.01.2023. Page No.# 7/13 12. In WP(C) No.4047/2023, the petitioner herein was the respondent No.6. In WP(C) No.4047/2023, the respondent No.6 herein, had challenged the recommendation of the petitioner herein for provincialization as a teacher of Social Studies in respect of K.B. Memorial ME Madrassa. 13. The order dated 14.08.2023 disposing of WP(C) 4047/2023 states as follows:- “Mr. D.A. Kaiyum, learned counsel submits that the petitioner was appointed on 10.12.2004, as an Assistant Teacher in the subject Social Studies and the private respondent No.6 was also appointed in the same school on 16.01.2006. Learned counsel for the petitioner further submits that the respondent No.6 is an Assamese Language teacher of the K.B. Memorial M.E. Madrassa. There is no dispute with regard to this fact. However the competent authorities, despite this fact, recommended the respondent No.6 for the subject of Social Studies, overlooking the claim of the petitioner and notwithstanding that the petitioner is the teacher of Social Studies of the same school. By the order dated 02.01.2023, the Director of Elementary Education, Assam passed the impugned order. Being aggrieved by the said order, the petitioner preferred an appeal on 22.05.2023, before the appellate authority i.e. the Secretary to the Govt. of Assam, Department of School Education (Elementary). It is submitted that the said appeal is still pending and has not been disposed of. The learned counsel for the parties are in agreement that the Writ Petition can be closed with a direction to the appellate authority to dispose of the appeal, after hearing all affected parties, including the Page No.# 8/13 respondent No.6. Upon hearing the learned counsels for the parties, this Court is of the view that ends of justice will be met if a direction is issued to the Secretary to the Govt. of Assam, Department of School Education (Elementary), Dispur (respondent No.1) to effectively dispose of the appeal filed on 22.05.2023, preferred by the petitioner under Section 14 of the Assam Education (Provincialisation of Services of Teachers and Re- organisation of Educational Institutions) Act, 2017, by passing a speaking order. The appellate authority is directed to dispose of the appeal within a period of sixty (60) days from the date of receipt of the certified copy of this order. Any such order that is passed by the appellate authority, copy thereof shall be served upon the petitioner. The writ petition is accordingly closed in terms of the above direction.” 14. The order dated 14-08-2023 passed in WP(C) 4047/2023 directed the Secretary to the Government of Assam, Department of School Education to dispose of the Appeal dated 22.05.2023 submitted by the respondent No. 6. A perusal of the above order dated 14.08.2023, clearly goes to show that at the time the order was passed, the service of the writ petitioner had not been provincialized as a Teacher. 15. In pursuant to the order dated 14.08.2023 passed in WP(C) 4047/2023, the Secretary to the Government of Assam, Department of School Education, Page No.# 9/13 issued order dated 16.02.2024, wherein he stated that it has been mentioned in the affidavit made by the writ petitioner that he had been teaching Assamese subject in the School and that in the particulars of teaching staff submitted to the Director of Secondary Education, the petitioner’s name was indicated as a subject teacher of Assamese language. On the other hand, the name of the respondent No. 6 was recorded as a teacher in social studies. It may be stated here once again that the writ petitioner mentioned in the order dated 16.02.2024 is the respondent No. 6 in this case, while the respondent No. 6 in the order dated 16.02.2024 is the writ petitioner in this case. It may also be stated here that the order dated 16.02.2024 issued by the Secretary to the Government of Assam, Department of School Education has another date mentioned below “copy for information and necessary action to” i.e., 22.02.2024. 16. The relevant portion of the order dated 16.02.2024/22.02.2024 issued by the Secretary to the Government of Assam, Department of School Education is reproduced herein below as follows:- “It may also be mentioned that in the affidavit made by the respondent No.6 Sri. Shohidur Rahman it has been mentioned that he is teaching Assamese subject in the school. Decision: In view of the above facts & circumstances it is observed that the DSC Goalpara recommended 3(three) teachers/tutors under Clause3(I)(xi) against K.B Memorial MEM for provincialisation of service. The respondent No.6 Sri. Shohidur Rahman has been recommended by the then DSC Goalpara as Social Studies teacher/tutor for provincialisation. However Shohidur Rahman himself has stated in the affidavit that he has submitted the particulars of teaching Page No.# 10/13 staff to the DSC wherein his name was indicated as subject Assamese language and against name of writ petitioner subject 'social studies and against the name of Md. Mofidul Islam subject English respectively. But the DLC recommended Shohidur Rahman as Social Studies teacher/tutor. As such the DSC Goalpara is directed to examine and review the proposal for recommendation of services of teaching staff as per the Assam Education (Provincialisation of Services, of Teachers and Re-organization of Educational Institutions) Act, 2017 against K.B Memorial MEM and to submit report to SLSC immediately. This is issued in compliance of the Hon'ble High Court's Order dated 14/08/2023 passed in WP(C)4047/2023 COP©748/2023 Shajahan Ali Mondal V/s State of Assam & Ors.” 17. In consequence to the order No. E-372565/161 dated 16.02.2024/22.02.2024 issued by the Secretary to the Government of Assam, Department of School Education, the DLC examined the proposal for provincialisation of staff in respect of K.B Memorial MEM and as per Resolution No. 2 of the minutes of the meeting dated 23.07.2024, it was found that the respondent No. 6 herein was found senior than the writ petitioner herein and thus the DEEO was directed to submit a proposal for provincialisation as per seniority. It may be again stated here that in the letter dated 05.11.2024 issued by the DEEO, Goalpara, the writ petitioner herein is the respondent No. 6, while the respondent No. 6 herein is the petitioner. 18. The letter dated 05.11.2024 issued by the DEEO, Goalpara is reproduced herein below as follows:- “Sub- WP(c) No. 4047/2023-Shajahan Ali Mondal-Vs-State of Assam. Page No.# 11/13 Ref- Minutes of the Meeting dated 23/07/2024 Madam, With reference to the subject cited above, I have the honour to inform you that as per the direction of the Department of School Education, Assam vide letter No E-372565/161 dtd 22/02/2024, the DLC, Goalpara was Scheduled on 24/07/2024 in connection with the WP(c) No. 4047/2023-Shajahan Ali Mondal-Vs- State of Assam and accordingly the DLC, Goalpara has been examine the proposal for provincialization of staffs in respect of K.B. Memorial MEM and as per resolution No. 2 of the Minutes of the meeting dtd 23/07/2024 it is found that Shahjahan Ali Mondal (petitioner) is senior than Shohidul Islam (respondent No. 6) and also instructed to the DEEO to submit the proposal for provincialization as per seniority. In this regards, I have the honour to submit herewith all the document of the both teaching staffs to re-consider the provincialization proposal. This is for favour of your kind information and necessary action.” 19. As can be seen from the above facts, the issue with regard to whether the writ petitioner and the respondent No. 6 were teachers in Assamese subject or social studies subject, has been laid to rest by the highest authority in the Department of Education. In terms of the impugned order dated 16.02.2024/22.02.2024, the respondent No. 6 herein has been directed to examine and review the proposal for recommendation for provincialisation in terms of the 2017 Act, keeping in view the fact that the writ petitioner herein had stated, on oath, in his affidavit that he was teaching the Assamese subject. When the maker of the affidavit has let others to believe that the information provided by him in the affidavit is true and correct, the maker/deponent cannot later on take a different stand. The affidavit binds the maker/deponent to the Page No.# 12/13 information provided by him. In view of the fact that the petitioner has stated that he was teaching the Assamese subject in the School in his affidavit, as reflected in the impugned order dated 16.02.2024/22.02.2024, the petitioner cannot resile from the same and take a different stand, at this stage. 20. As the order dated 16.02.2024/22.02.2024 has been made pursuant to the order dated 14.08.2023 passed in WP(C) 4047/2023, whereby the factual issue that the respondent No. 6 was the subject teacher of social studies has apparently been clarified in view of the affidavit made by the petitioner, this Court is of the view that there has to be an end to the dispute between the parties and the disputed question of facts which has been settled vide the impugned order, on the basis of the affidavit made by the petitioner, cannot be allowed to be re-opened. There has to be an end/finality to factual disputes. 21. The above being said, this Court finds that though the petitioner has stated in para 9 of the writ petition that the order of provincialisation of the petitioner and the respondent No. 7 as Tutors was issued on 05.02.2021 by the Director of Elementary Education, Assam, the alleged provincialisation order has not been annexed to the writ petition. 22. In view of the fact that there has been a decision on the issue of whether the writ petitioner is an Assamese subject teacher and whether the respondent No. 6 is a social studies teacher, this Court is not inclined to reopen the said issue again. However, this Court would like to once again refer to the decision made by the Secretary to the Government of Assam, Department of School Education in the impugned order dated 16.02.2024, wherein it has been stated that the writ petitioner, in his affidavit had stated that he had submitted the Page No.# 13/13 particulars of the teaching staff to the DSC, wherein the petitioner’s name was indicated as a teacher of the Assamese subject and the respondent No. 6 was shown as teacher of the subject social studies. The relevant extract is reproduced herein below as follows:- “However Shohidur Rahman himself has stated in the affidavit that he has submitted the particulars of teaching staff to the DSC wherein his name was indicated as subject Assamese language and against name of writ petitioner subject 'social studies and against the name of Md. Mofidul Islam subject English respectively. But the DLC recommended Shohidur Rahman as Social Studies teacher/tutor.” 23. In view of the reasons stated above, this Court does not find any reason to set aside the impugned order dated 16.02.2024/22.02.2024, the Resolution No. 2 or the impugned order dated 05.11.2024. The writ petition is accordingly dismissed. JUDGE Comparing Assistant