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GAHC010165392023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4642/2023
MASUMA AHMED
W/O- AMINUR ISLAM AHMED, VILLAGE- DUMARDAHA PT-I, P.O.
BALAJAN, P.S. GAURIPUR, DISTRICT- DHUBRI, ASSAM, PIN- 783331
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION (ELEMENTARY), DISPUR,
GUWAHATI-06
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM-CUM-CHAIRMAN OF STATE LEVEL SCRUTINY COMMITTEE
ASSAM, KAHILIPARA
GUWAHATI-19
3:THE DEPUTY COMMISSIONER-CUM-CHAIRMAN OF DISTRICT
SCRUTINY COMMITTEE
DHUBRI
P.O. DHUBRI, DISTRICT- DHUBRI
ASSAM
PIN- 783301
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER-CUM-MEMBER
SECRETARY OF DISTRICT SCRUTINY COMMITTEE
DHUBRI
P.O. DHUBRI, DISTRICT- DHUBRI
ASSAM
PIN- 783301
5:THE BLOCK ELEMENTARY EDUCATION OFFICER
GAURIPUR, P.O.- GAURIPUR
DISTRICT- DHUBRI
ASSAM, PIN- 783330
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6:SMTI. JULFA AHMED
HEAD MISTREESS OF SILGHAGRI M.E. SCHOOL
W/O- ENAMUL HOQUE PRODHANI
VILLAGE- KHAGRABARI
P.O. SAHEBGANJ
P.S. GAURIPUR, DISTRICT- DHUBRI
ASSAM, PIN- 78333
Advocate for the Petitioner : MR. M R KHANDAKAR
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
28.03.2024
Heard Mr. M. R. Khandakar, learned counsel appearing for the petitioner and Mr.
A. Phukan, learned Standing Counsel, Elementary Education Department, Assam,
appearing for the respondents No. 1, 2, 4 and 5. Also heard Mr. B. Deuri, learned
Government Advocate, Assam, appearing for respondent No. 3. None has entered
appearance for respondent No. 6.
2. The petitioner, by way of instituting the present proceedings, has presented a
challenge to the order dated 25.04.2023, passed by the respondent No. 2, i.e. Director
of Elementary Education, Assam cum Chairman of the State Level Scrutiny Committee,
by which the claim of the petitioner for provincialisation of her services as a Language
Teacher in Silghagri M.E. School was rejected on the ground that her name did not
find mention in the recommendations made by the State Level Scrutiny Committee.
3. Learned counsel for the petitioner submits that in pursuance to the directions
passed by this Court vide order dated 31.03.2021 in WP(C) 2398/2021, the Director of
Elementary Education, Assam, had considered the case of the petitioner and vide an
order dated 07.01.2022, passed by the Director of Elementary Education, Assam, the
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claim of the petitioner for provincialisation of her services was rejected on the ground
that her name was not recommended by the State Level Scrutiny Committee as well
as by the Joint Committee so constituted by the Government for provincialisation of
the services of the teachers. The petitioner thereafter instituted a writ petition, being
WP(C) 2893/2022, presenting a challenge to the said order dated 07.01.2022. This
Court, vide an order dated 06.05.2022 proceeded to give a final consideration to the
said writ petition by interfering with the order dated 07.01.2022 and by directing the
Director of Elementary Education, Assam, to determine as to who would be entitled to
be provincialised and accordingly to pass a reasoned order thereon. This Court, while
interfering with the order dated 07.01.2022, had recorded the following conclusions in
its order dated 06.05.2022:
“3. The petitioner is a language teacher in the Silghagri ME School in the
Dhubri district having been appointed on 05.07.2006 and the respondent No.6
Smti Julfa Ahmed is also a language teacher of the same school and was
appointed on 20.12.2010. If the respective dates of appointments are correct,
apparently the petitioner would be senior to the respondent No.6 as a language
teacher of the school.
4. When the language teacher of the school was not provincialised and on the
other hand the social science and science teachers were provincialised, the
petitioner instituted WP(C) 2398/2021 which was given a final consideration by
the order dated 31.03.2021.By the said order, a direction was issued to the
respondents in the Elementary Education Department to carry forward the
recommendation of the District Scrutiny Committee for provincialising the
language teacher of the school to its logical end. Consequent thereof, the order
impugned dated 07.01.2022 had been passed by the Director of Elementary
Education Department, Assam. By the said order, the claim of the petitioner for
provincialisation as a language teacher of the school stood rejected by providing
that the SLC had recommended three teachers respectively as language
teacher, science teacher and social studies teacher and the name of the
petitioner Masuma Ahmed was not recommended for provincialisation. It is
stated that no one had been provincialised as language teacher of the school
concerned. It was also provided in the order impugned that the name of the
other teacher Julfa Ahmed did not appear in the DISE code.
5. Be that as it may, we are of the view that it was incumbent upon the Director
to call for the entire records to find out as to which of the teacher was entitled
for being provincilased as a language teacher of the school and if there was an
incorrect recommendation made by the SLC in favor of some teacher whose
name did not appear in the DISE code or as a matter of fact there was incorrect
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decision of the SLC in not recommending the petitioner who otherwise may have
been entitled , it was for the Director to look into the matter and pass a
reasoned order rather than taking a perfunctory view that as the SLC did not
recommend the petitioner so the petitioner is rejected and as the SLC had
recommended another person whose name did not appear in the DISE code and
therefore the said person be also rejected.
6. Accordingly, we interfere with the order dated 07.01.2022 and direct the
Director of Elementary Education Assam to determine as to who would be
entitled to be provincialised and accordingly pass a reasoned order thereon.
Requirement may be done within 2 months from the date of receipt of a certified
copy of this order and in doing so, if necessary, the other person may also be
given a hearing by the Director.”
Pursuant to the directions passed by this Court vide the order dated 06.05.2022,
the Director of Elementary Education, Assam, issued the impugned order dated
25.04.2023.
4. On a perusal of the order dated 25.04.2023, it is revealed that the contents of
the same is just a replication of the contents in the earlier order dated 07.01.2022,
which has since been interfered by this Court. It is also revealed that while passing
the order dated 25.04.2023, the Director of Elementary Education, Assam, had not
considered the observations made by this Court vide order dated 06.05.2022 and had
reiterated what had been contended in the earlier order dated 07.01.2022.
5. The materials as available on record reveal that the names of the petitioner and
the respondent No. 6 were recommended by the jurisdictional District Level Scrutiny
Committee for provincialisation of their services as Language Teachers. The
recommendations as made by the District Level Scrutiny Committee came to be placed
before the State Level Scrutiny Committee for further scrutiny. The State Level
Scrutiny Committee recommended the name of the respondent No. 6 for
provincialisation of her services as Language Teacher along with the names of two
other serving teachers in the school against the posts of Science and Social Studies
subjects. Thereafter, the matter was further processed with and again came to be
placed before the State Level Scrutiny Committee. The State Level Scrutiny Committee
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now dropped the name of the respondent No. 6 and only recommended the names of
two serving teachers of the school for provincialisation of their services against the
posts of Science and Social Studies subjects. The post of Language Teacher was kept
vacant. The case of the petitioner after being dropped by the State Level Scrutiny
Committee after the initial scrutiny, her case was not further considered for
provincialisation of her services. The above position was noticed by this Court in the
proceedings of WP(C) No. 2893/2022 and, accordingly, vide order dated 06.05.2022
this Court had required the Director of Elementary Education, Assam, to carry out a
fresh consideration in the matter on examination of the records to find out as to which
teacher was entitled for being considered for being provincialised as a Language
Teacher. The said examination as required by this Court has admittedly not been
carried out while issuing the impugned order dated 25.04.2023. As such, the order
dated 25.04.2023 was so issued in clear violation of the directions as passed by this
Court vide the said order dated 06.05.2022.
6. Having heard the learned counsel for the parties and having gone through the
material on record, this Court is of the view that the order dated 25.04.2023 does not
stand to the scrutiny of law and needs to be interfered with. Accordingly, the
impugned order dated 25.04.2023 is hereby set aside.
7. At this stage, it is contended at the Bar that a post of Language Teacher is still
lying vacant in the school in question, which is required to be filled up in terms of the
provisions of Section 3(xi) of the Assam Education (Provincialisation of Services of
Teachers and Re-organisation of Educational Institutions) Act, 2017 (hereinafter
referred to as “Act of 2017”).
8. In view of the above, the present writ petition is disposed of requiring the
Director of Elementary Education, Assam, to place the cases of the petitioner and the
respondent No. 6 again before the State Level Scrutiny Committee and the State Level
Scrutiny Committee shall, by exercising the powers under the provisions of Section
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13(11) of the Act of 2017, cause physical verification of the institution and, on
examination of the contemporaneous records, as maintained in the school and after
ascertaining as to whether the petitioner and the respondent No. 6 were in continuous
service for the period, as mandated under the provisions of the Act of 2017, shall
make necessary recommendations with regard to the provincialisation of the services
of the petitioner and/or the respondent No. 6 against the post of Language Teacher
presently lying vacant in the said school. The Director of Elementary Education, on
receipt of such recommendations from the State Level Scrutiny Committee, shall
proceed with the matter in accordance with the recommendations so made and shall
pass the requisite consequential orders after receiving necessary approval from the
Government in this regard towards provincialising the services of the teacher so
recommended.
9. In the event the case of the petitioner is not recommended by the State Level
Committee, the Director of Elementary Education, Assam, shall issue a speaking order
recording therein the reason(s) for such rejection of the petitioner’s case and shall
communicate the same to the petitioner. The exercise, as directed hereinbefore, shall
be initiated and concluded within a period of three months from the date of receipt of
a certified copy of this order by the Director, Elementary Education, Assam. The
petitioner is left at liberty to furnish a certified copy of this order before the Director of
Elementary Education, Assam, for compliance.
10. The writ petition stands disposed of with the above observations and directions.
JUDGE
Comparing Assistant