Page No.# 1/15 GAHC010054842021 2026:GAU-AS:12175 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2249/2021 NURMAHAMMAD SARKER S/O- LT. ABDUL MOZID SARKAR, VILL- BASHBARI NO. 1, P.O. SALABILA, P.S. MANIKPUR, DIST.- BONGAIGAON, ASSAM- 783392 VERSUS THE STATE OF ASSAM AND 6 ORS REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPTT., DISPUR, GHY-06 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19 3:THE DISTRICT OF ELEMENTARY EDUCATION OFFICER BONGAIGAON ASSAM- 783380 4:THE DY. COMMISSIONER BONGAIGAON ASSAM- 783380 5:THE HEAD MASTER BALARPET ADARSHA M.E MADRASSA VILL- BALARPET P.O. TILPUKHURI DIST.- BONGAIGAON ASSAM- 783384 6:ASHAN ALI S/O- JAHIR UDDIN Page No.# 2/15 VILL- BALARPET P.O. TILPUKHURI DIST.- BONGAIGAON ASSAM- 783384 7:THE HEAD MASTER TILPUKHURI M.E MADRASSA VILL- TILPUKHURI P.O. TILPUKHURI DIST.- BONGAIGAON ASSAM- 78338 Advocate for the Petitioner : MR. MD S HOQUE, MR. M DUTTA,MR. M DEKA,MISS. M DAS,MD. S ISLAM Advocate for the Respondent : SC, ELEM. EDU, MR. S RANA,MR. A R BHUYAN,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 24.08.2026 Heard Mr. M. Dutta, learned Senior Counsel, assisted by Mr. S. Islam, learned counsel, appearing for the petitioner. Also heard Ms. K. Phukan, learned Government Advocate, appearing for the respondent no.4; Mr. P.N. Sarma, learned Standing Counsel, Elementary Education Department, appearing for the respondent nos.1, 2 and 3; and Mr. A. R. Bhuyan, learned Senior Counsel, assisted by Mr. N. Z. Choudhury, learned counsel, appearing for the respondent no.6. None has appeared for the respondent nos.5 and 7. 2. The petitioner in the present writ petition has assailed an order Page No.# 3/15 dated 05.02.2021, issued by the Director of Elementary Education Department, Assam, provincialising the services of the respondent no.6, as Tutor in 247 No. Balarpet Bhandra L.P. School. 3. The facts in brief, requisite for adjudication of the issue arising in the present writ petition is noticed, as under; The petitioner, herein, was appointed as an Assistant Teacher at Balarpet Adarsha M.E. Madrassa. The petitioner projects that on his such appointment, he was teaching the subject of Assamese in the said school. The respondent no.6, herein, was subsequently appointed as an Assistant Teacher, in the said school and he was so appointed to teach the Arabic subject. The appointment of the respondent no.6, was effected vide an order of appointment dated 20.01.2000, issued by the School Authorities. The school, in question, i.e. Balarpet Adarsha M.E. Madrassa, Bongaigaon, at the relevant point of time when the petitioner as well as the respondent no.6, were appointed, therein, was in its venture stage. Upon the enactment of the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017, the school of the petitioner being found to be eligible for provincialisation of the services of the teachers working, therein, the service particulars of the teachers of school, Page No.# 4/15 including that of the petitioner and the respondent no.6, came to be forwarded to the jurisdictional District Scrutiny Committee. The jurisdictional District Scrutiny Committee, on evaluation of the service particulars of the petitioner as well as by reckoning the enrolment status of the students in school, proceeded to recommend names of 04 (four) teachers of the said school for provincialisation of their services. The name of the respondent no.6, was also included within the list of 04 (four) teachers, so found eligible for provincialisation of their services. The name of the petitioner, herein, however, was included in the list of teachers not found eligible for provincialisation due to non-availability required enrolment. Thereafter, the recommendation made by the jurisdictional District Level Committee, being approved by the State Level Committee and subsequently, by the Government, the Director of Elementary Education, Assam, vide order dated 05.02.2021, proceeded to provincialise the services of the respondent no.6 as a tutor/teacher in the said school. Being aggrieved, the petitioner has instituted the present writ petition. 4. Mr. M. Dutta, learned Senior Counsel for the petitioner, by reiterating the facts, noticed, hereinabove, has submitted that the Page No.# 5/15 provincialisation of services of teachers in a Upper Primary School is governed by the provisions of Section 3 (1) (xi) of the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017. He submits that the services of minimum 03 (three) teachers are to be so provincialised by providing at least 01 (one) teacher each for the subject of (a) Science & Mathematics (b) Social Studies and (c) Languages. He further submits that, in the event, the enrolment status of the students in the school so mandate, additional posts would be permissible to be so sanctioned in accordance with the provisions of the Right of Children to Free & Compulsory Education, Act, 2009. 4.1. Mr. M. Dutta, has submitted that the Respondents Authorities, in so far as the school of the petitioner is concerned, considering the status of enrolment of students in the said school, had decided that services of 04 (four) teachers in the school would be so provincialised. He submits that in compliance of the provisions of Section 3 (1) (xi) of the said Act of 2017, the services of one Towaj Uddin was provincialised as English Teacher, Khaliur Rahman as Mathematics and Science Teacher and Habiza Khatun as Social Science Teacher. He submits that with the recommendation made in respect of the said 03 Page No.# 6/15 (three) teachers, the requirement prescribed under the provision of Section 3 (1) (xi) of the said Act of 2017, of the said Act of 2017, was satisfied. Now there being a necessity of providing an additional post to the school, in question, the Respondent Authorities without assigning any reason proceeded to recommend the name of the respondent no.6, herein, for provincialisation of his services by reckoning him to be an Arabic teacher. 4.2. Mr. M. Dutta, submits that for provincialisation of services of a teacher working in the school against the 4th vacant post sanctioned to the school, in absence of any provision made in this connection with regard to the manner in which such provincialisation would be so effected, the provincialisation would be mandated to be effected by reckoning the seniority of the remaining teachers in the school. Mr. Dutta, accordingly, submits that the petitioner being senior to the respondent no.6, it was the services of the petitioner which was mandated to be provincialised and not that of the respondent no.6. 4.3. In the above premises, Mr. M. Dutta, submits that the provincialisation effected in respect of the respondent no.6, would mandate an interference from this Court, with a further direction to the Respondent Authorities to provincialise the services of the petitioner, Page No.# 7/15 herein. 5. Mr. P.N. Sarma, learned Standing Counsel, Elementary Education Department, has submitted that 03 (three) teachers were selected for provincialisation of their services towards satisfaction of the prescription made in the provisions of Section 3 (1) (xi) of the said Act of 2017. However, he submits that Habiza Khatun, although recommended, for provincialisation of her services, by considering her to be a teacher teaching the subject of Social Science, her services was not provincialised, as there was some anomaly found with regard to the DISE data maintained in her case by the Respondent Authorities. 5.1. Mr. P. N. Sarma, however, has submit that no instructions has been furnished to him as regards the criteria to be applied for making recommendations against the additional post sanctioned to the said school. 6. Mr. A. R. Bhuyan, learned Senior Counsel, has at the outset submitted that the school when it was in its venture stage was a M.E. Madrassa School. Accordingly, in the said school Arabic was a mandatory subject, required to be taught to the students. He submits that keeping the said aspect of the matter and although the school was subsequently, during provincialisation of the services of its employees, converted as a Page No.# 8/15 Lower Primary School, in the general stream, the course of study being imparted in the said school, continued to have Arabic subject and considering the fact that most of the student enrolled in the said school had opted for the Arabic subject, the Respondent Authorities had proceeded to provincialise the services of the respondent no.6, who was the teacher teaching the Arabic subject in the said school. 6.1. Mr. A. R. Bhuyan, further submits that it is not disputed that the services of the respondent no.6, was so provincialised, beyond the post as prescribed under the provisions of Section 3 (1) (xi) of the said Act of 2017, in other words, he submits that the services of the respondent no.6, was so provincialised against the additional post created for the said school, considering the high enrolment of students, therein. Mr. Bhuyan, has submitted that the provisions of Section 3 (1) (xi) of the said Act of 2017, however, does not mandate that the services of the teachers in a venture school be provincialised by reckoning their respective service seniority although, he submits that the said criteria was followed in certain cases. 7. I have heard the learned counsel for the parties and also perused the materials available on record. 8. The facts leading to the placement of the case of the Page No.# 9/15 petitioner, the respondent no.6 and other teaching staff of Balarpet Adarsha M.E. Madrassa before the jurisdictional District Scrutiny Committee, is not disputed and accordingly, the same is not reiterated, hereinabove; 9. Before proceeding to examine the issue arising in the present writ petition, this Court would notice the provisions of Section 3 (1) (xi) of the said Act of 2017. The said provisions being relevant is extracted, hereinbelow; “3. Eligibility criteria for selection of educational institution for provincialisation of services of teachers/tutors:- (1) Subject to the provisions of Article 30 of the Constitution of India, the following categories of Venture Educational Institutions shall be eligible for being considered for provincialisation of the services of their teachers and tutors:- (xi) 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: Provided that for additional posts it shall be considered in accordance with the norms and standard stipulated in the Schedule under Sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009 Page No.# 10/15 (Central Act No. 35 of 2009).” 10. Having noticed the said provisions, this Court finds that the jurisdictional District Scrutiny Committee, on the matter being referred to it, on appreciation of the service particulars of the teaching staff of the school, in question, had proceeded to recommend the names of the following teachers towards satisfaction of the provisions of Section 3 (1) (xi) of the said Act of 2017; (i) Towaj Uddin (as English Teacher), (ii) Khaliur Rahman (as Mathematics & Science) (iii) Habiza Khatun (as Social Science). 11. 11. From the affidavit filed by the respondent no.2, it is seen that the services of Habiza Khatun, who was so recommended for provincialisation of her services as a Social Science Teacher, was not issued with any order of provincialisation, inasmuch as, there was an anomaly in the DISE data maintained pertaining to her services. The non-provincialisation of the services of Habiza Khatun in the considered view of this Court would not have any bearing on the issue with regard to filling up of the 04th post involving the petitioner as well as the respondent no.6. 12. The jurisdictional District Scrutiny Committee, considering the status of enrolment of students in the said school, proceeded to make a Page No.# 11/15 further recommendation against an additional post and recommended the name of the respondent no.6, against the said post. The name of the petitioner, herein, was so placed in the list of teachers not found to be eligible for provincialisation due to non-availability of the required enrolment. 13. This Court has perused the stipulation made in this connection by the jurisdictional District Scrutiny Committee in respect of the petitioner and this Court is of the considered view that the same only reflects that given the enrolment in the school only 01 (one) further post was permissible to be so sanctioned to the said school, in addition to the 03 (three) posts as mandated under the provisions of Section 3 (1) (xi) of the said Act of 2017. 14. The rival contentions of the learned counsel for the parties have been considered by this Court with regard to the manner in which the additional post sanctioned, is to be so filled up. 15. This Court on a perusal of the various provisions of the Act of 2017, does not find any provisions being incorporated, therein, with regard to the manner in which additional posts created, in an Upper Primary school, is to be filled up, under the provisions of the Act of 2017. In the absence of criteria being laid down in the provisions of the said Page No.# 12/15 Act of 2017, there being a specific stipulation in the provisions of Section 3 (1) (xi) of the said Act of 2017, requiring 03 (three) teachers of subject specified, therein, to be so provincialised, this Court is of the considered view that in such a situation, against the additional post coming into being, the provincialisation of the services of the teachers against the same, must be so done basing on the service seniority of the teachers concerned in the said school. The said criteria, if so applied, would provide for an opportunity to an otherwise eligible teacher serving in the said school for a long period of time for having his services provincialised. The Act of 2017, having not specified for mandatory provincialisation of teachers, other than the teachers teaching the subject of Science and Mathematics, Social Studies and Languages, it was not open to the respondents to proceed to provincialise the services of the respondent no.6, by only considering that he was teaching the subject of Arabic in the School. Such criteria, if permitted to be applied, would result in the services of an employee working in the school to be provincialised, basing on a subjective satisfaction drawn by the authorities and would lead to services of persons being provincialised, on pick and choose basis, which is clearly not permissible. 16. It is to be noted that although the Director of Elementary Page No.# 13/15 Education, had filed an affidavit in the matter, nothing has been brought on record towards justifying the provincialisation of the services of the respondent no.6. 17. Be that as it may, this Court having already held that the safest criteria under such circumstances would be service seniority of the teachers in the Venture Institution, the petitioner, herein, having been found to have been serving in the said school w.e.f. 1992, and the respondent no.6, having joined his services only on 20.01.2000, it is the petitioner who would be senior to the respondent no.6, and accordingly, it was the case of the petitioner which was required to first considered for provincialisaton against the additional post allotted to the said school. 18. In view of the above conclusions drawn by this Court, this Court is left with no other alternative but to interfere with the provincialisation effected in respect of the respondent no.6, vide the order dated 05.02.2021. 19. Having interfered with the said order dated 05.02.2021, this Court directs the Director of Elementary Education, Assam, to place the case of the petitioner before the jurisdictional District Level Committee, for considering the service particulars of the petitioner for provincialisation of his services. Basing on the recommendation that Page No.# 14/15 would now be made by the jurisdictional District Level Committee and the State Level Committee, the Director to take consequential steps for provincialisation of the services of the petitioner. 20. In the event, the recommendation are so made in favour of the petitioner, herein, the services of the petitioner shall be so regularized w.e.f. 01.01.2021, by maintaining parity with the provincialisation of services effected in respect of the other teachers in the said school. 21. Although, this Court had interfered with the appointment made in respect of the respondent no.6, this Court provides that the salaries drawn by the petitioner be not recovered. Further, it is provided that it would be open to the Government to continue with the services of the respondent no.6, considering the fact that he is rendering his services since 05.02.2021, and he was in no way responsible for the provincialisation of his services. Accordingly, for the purpose of protecting the services of the respondent no.6, herein, the Government, shall consider allotting a further post to the school, in question, and the services of the respondent no.6, be accommodated, there against. However, the consideration now directed to be made in respect of respondent no.6, should not be so made at the cost of the service Page No.# 15/15 interest of the petitioner, herein. 22. The exercise as mandated to be carried out by the Director of Elementary Education, Assam, for compliance of the directions passed, hereinabove, be initiated and concluded within a period of 03 (three) months from the date of receipt of a certified copy of this order. 23. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant