Page No.# 1/7 GAHC010158382026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4020/2026 NAREN DEKA S/O- BHALA RAM DEKA, R/O- UTTAR GANDHIBARI, P.O. GANDHIBARI, SUB- DISTRICTTAMULPUR, DIST- BAKSA, ASSAM, PIN- 781367, PRESENTLY POSTED AS GRADE- IV EMPLOYEE AT GANDHIBARI ANCHALIK HIGH SCHOOL, BAKSA. VERSUS THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, SCHOOL EDUCATION SECONDARY, DISPUR, GUWAHATI, ASSAM PIN 781006. 2:THE SECRETARY FINANCE DEPARTMENT TO THE GOVERNMENT OF ASSAM DISPUR GUWAHATI ASSAM PIN-781006. 3:THE DIRECTOR OF SECONDARY EDUCATION KAHILIPARA GUWAHATI ASSAM PIN- 781019. 4:THE DIRECTOR OF EDUCATION BOROLAND TERRITORIAL REGION BTR KOKRAJHAR ASSAM PIN 783370 Page No.# 2/7 Advocate for the Petitioner : MR. M DUTTA, HAZARAT MIRZA ALI,MS N CHATTERJEE Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE,SC, BTC BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER 05.08. 2026 Heard Mr. H. M. Ali learned counsel for the petitioner. Also heard Ms. N. Choudhury learned counsel for the Respondents. 2. This writ petition is filed by the petitioner challenging certain provisions of the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018 (hereinafter referred to as the Act, 2018). 3. The petitioner herein is a non-teaching (Grade IV) staff/ employee working at Gandhibari Anchalik High School, Baksa in the State of Assam. The petitioner have been serving continuously in the Institutions. It is submitted that the School was established at the initiative of the local people for educating their children as well as for the other children of the localities, however, recognised by the Government and these institutions are defined as Venture Educational Institutes. 4. The State of Assam enacted the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (hereinafter referred to as the Act, Page No.# 3/7 2011) with an objective to provincialise the schools as well as the provincialisation of services of teaching and non-teaching staff, thereby bringing these schools and the employees thereof under the Government fold. 5. The names of the petitioner along with other eligible non-teaching employees of the Venture Educational Institutions were recommended for provincialisation under the Act, 2011. Though, the services of many non- teaching staff were provincialised in terms of the Act, 2011 in phased manner, however, pending recommendation of the cases of the petitioners, the Act, 2011 was struck down by a Co-ordinate Bench under its common judgment and order dated 23.09.2016 passed in WP(C) No. 3190/2012 & other connected writ petitions (Shri Chandan Kumar Neog & others Vs. State of Assam & 2 others and others), on a challenge made to constitutional validity of the Act, 2011. 6. The State of Assam preferred a review petition expressing a concern about those teaching and non teaching staff, who had in the meantime retired, after being provincialised and those employees, who are receiving regular scales of pay pursuant to their provincialisation under the Act, 2011 (since struck down).The said review petition was disposed of with an observation that the employees who have been benefited under the struck down statute, can be taken care of by giving retrospective effect to the new legislation proposed by the State. 7. 7. Subsequently, the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (hereinafter Page No.# 4/7 referred to as the Act, 2017), was enacted, however, no provision was made under the Act, 2017 for provincialisation of the services of the non-teaching staff of venture educational institutions but for the provincialisation of Teaching staff. 8. Thereafter, the State Legislature enacted the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018 for the purpose of provincialisation of services of nonteaching staff of Venture Educational Institutions. 9. Though, the services of the petitioners were provincialised under the Act, 2018, however, under Section 6 (2) of the Act, 2018, it was mandated that the non-teaching staff, whose services have been provincialised under the Act, 2018, shall get fixed pay as specified in the Schedule appended to the Act, 2018 with effect from the date of provincialisation of their services. 10. Being aggrieved with such fixed pay, the provisions of Sections 4 (1), 6(2), 6(3), 6(4) and the Schedule appended to the Act, 2018 are put to challenge in these writ petitions being unconstitutional and ultra-vires and it is the projected case that the vested right of the petitioners to have their services provincialised as accorded under the Act, 2011 is ultra-vires and according to them, such vested and concluded rights cannot be taken away. 11. At the outset, Mr. H. M. Ali, learned counsel for the petitioner submits that a similar provision granting a fixed scale of pay to the Tutors under the Act, 2017, has been interfered with by a Co-ordinate Bench in “Mohor Ali Sheikh and others Vs. the State of Assam & Others” reported in 2024 5 GLT 689 and the Page No.# 5/7 present petitioners being similarly situated, the present writ petitions can be disposed off in similar line. 12. Ms. N. Choudhury, learned Standing counsel representing the State of Assam and the BTC, while not disputing the aforesaid proposition, submits that the State of Assam has already filed a review petition seeking review of the determination made in Mohor Ali Sheikh (supra). 13. We have perused the determination made in Mohor Ali Sheikh (supra). Under the Act, 2017, those teachers, who were no having required qualifications mandated under the said Act, 2017, were brought under the fold of “Tutor” with a fixed scale of pay subject to their acquisition of such qualification within a period of five years and to get upgraded to the status of Teacher or otherwise, to continue as Tutors with fixed pay. Such prescription was challenged in Mohor Ali Sheikh (supra).The Co-ordinate Bench dealing with such challenge, held that by virtue of the acquisition of the status as “employees of the State Government of Assam”, after the provincialisation of services, the Tutors will be entitled to enjoy the benefits of the regular scale of pay that have been extended to other employees of the State. It was further held that it will be incumbent upon the Government to extend the regular scale of pay to the Tutors. Finally, a direction was issued to the State to extend a pay scale to the Tutors, which the State considers fit and proper, inasmuch as, it was held that such determination as regards appropriate scale of pay cannot be entertained in that writ petition challenging constitutional validity of the statute. 14. In the given facts of the present cases, we are of the opinion that Mr. H. M. Page No.# 6/7 Ali, learned counsel for the petitioners, is correct that the same principle of law, is to be made applicable in the present writ petition and a direction may be issued in the light of the determination made in Mohor Ali Sheikh (supra) to extend scale of pay to the non-teaching staff, whose services have been provincialised under the Act, 2018. 15. It is an admitted position that though the services of teaching and non- teaching staff of Venture Educational Institutions, were sought to be provincialised under the scheme of the Act, 2011 (since struck down), however, two different legislations were enacted, i.e., the Act, 2017 for Provincialisation of Services of the Teaching Staff of Venture Educational Institutions and the Act, 2018 for Provincialisation of Services of the Non-Teaching Staff of the Venture Educational Institutions. 16. Under the Act, 2017, the Tutors were provided fixed scale of pay till the acquisition of their qualification to be recognised/ upgraded as Teachers. However, as recorded hereinabove, it was held by the Co-ordinate Bench that when the services of those Tutors were provincialised and the same were brought under the Government fold, a regular scale of pay was to be given to them. Therefore, we are also of the opinion that the same principle of law shall be applicable in the case of non-teaching staff, whose services, though had been provincialised and were brought under the government fold but were paid a fixed scale of pay. However, what should be such scale of pay, should be left to the wisdom of the State. 17. Accordingly, the present writ petition stands allowed, subject to the Page No.# 7/7 verification of the credentials and eligibility of the petitioner, by holding that the non-teaching staff would be entitled to equal treatment under the law as is extended to other government employees by virtue of their acquired status as employees of the State of Assam and since the other employees are enjoying the benefits of regular scale of pay, they should be paid a just scale of pay. However, what should be a just scale of pay is neither a question raised before this Court, nor we are inclined to enter into the said aspect of the matter in these writ petitions. Ordered accordingly. 18. The determination of such a scale of pay shall be made, subject to the verification of the credentials and eligibility of the petitioner, within a period of eight weeks from the date when a certified copy of this order is submitted before the Competent Authority in the Education Department by the petitioner. 19. This disposes the writ petitions. 20. Parties to bear their own cost. JUDGE Comparing Assistant