Kalpana Borah vs The State Of Assam And 5 Ors

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GAHC010136772025

2026:GAU-AS:5365

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./171/2025
KALPANA BORAH
W/O NOREN CH HAZARIKA, R/O VILL. LOTHOW JORHATIA, NORTH
LAKHIMPUR, P.O./P.S. NOWBOICHA, DIST. LAKHIMPUR, PIN 787023,
ASSAM MUSIC TEACHER OF DUBI HIGH SCHOOL.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM, DEPTT. OF SECONDARY EDUCATION, DISPUR, GHY 06
2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GHY 06
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY 19
4:THE INSPECTOR OF SCHOOL
LDC NORTH LAKHIMPUR
PIN 784160
5:THE DIST. SCRUTINY COMMITTEE LAKHIMPUR DISTRICT
REPRESENTED BY ITS CHAIRMAN THE DEPUTY COMMISSIONER
LAKHIMPUR ASSAM PIN 784160

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6:THE HEAD MASTER OF THE SCHOOL
DUBI HIGH SCHOOL
DIST. LAKHIMPUR
PIN 78416
Advocate for the Petitioner : MR M GOSWAMI, MS S PATOWARY,MR R SINGHA
Advocate for the Respondent : SC, SEC. EDU., SC, FINANCE DEPTT.

:::BEFORE:::

HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 12.12.2025
Date of Judgment : 30.03.2026

Judgment and Order (CAV)
Heard Mr. M. Goswami, learned Senior Counsel, assisted by Mr. R. Sinha, learned counsel,
appearing for the review petitioner. Also heard Mr. N. J. Khataniar and Ms. D. Mushahary, learned
Standing Counsel, Secondary Education Department, appearing for the respondents.
2. The petitioner by way of instituting the present review petition has prayed for a review of the
order dated 22.04.2024, passed by this Court in WP(C).No.7596/2022.
3. The facts in brief, leading to the constitution of the present Review petition, is noticed as under;
The School Managing Committee of Dubi High School, a Venture Educational Institution, in
pursuance to the resolution adopted by it had proceeded to appoint the petitioner as a Music Teacher in
the School on 25.01.1998. The petitioner in terms of the said appointment joined her service in the
school on 02.02.1998, and her such appointment was provisionally approved by the Inspector of
Schools.
The Government of Assam had enacted in the Assam Educational (Provincialisation of
Services) Act, 2011, in order to provincialise the services of teachers working in various educational
institutions in the State. The Dubi High School being found to be an eligible institutions for

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provincialisation of the services of the teachers working, therein, the names of the teachers working,
therein, including the petitioner, herein, came to be forwarded for placing before the District Scrutiny
Committee (DSE). The District Scrutiny Committee on verification of the service particulars of the
teachers of the said school, including the petitioner, herein, recommended the name of the petitioner
along with other teachers found eligible in the said school, for provincialisation of their services.
Thereafter, upon further processing of the said proposal in terms of the provisions of Section 10 (4) of
the Act of 2011, on the post requisite for provincialisation of the eligible teachers in the said school
being sanctioned, and necessary notifications issued in this connection, the Director of Secondary
Education, Assam, proceeded to provincialise the services of the teachers found eligible for
provincialisation of their services. However, the name of the petitioner was not included in the list of
teachers, whose services were provincialised in the School, wherein, the petitioner was working. It is to
be noted that the Act of 2011, on being declared to be unconstitutional and invalid by a Division Bench
of this Court in the case of Chandan Kumar Neog and Ors. Vs. State of Assam and Ors. [Judgment
and Order dated 23.09.2006 in WP(C).No.3190/2011], the State respondents had enacted the Assam
Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions)
Act, 2017. The case of the petitioner was considered under the provisions of the Act of 2017, and the
District Scrutiny Committee, on verification of her service particulars had recommended her case for
being placed before the State Level Scrutiny Committee. It is at this stage that the petitioner had
instituted the connected writ petition being WP(C).No.7596/2022, praying for consideration of her case
under the provincialisation of her service w.e.f. 01.01.2013, in terms of the provisions of the Act of
2011. This Court noticing that after the Act of 2011, on being declared ultra vires by this Court, the
case of the petitioner was considered under the provisions of the Act of 2017, the said process however,
being found to have not been taken to its logical conclusion, proceeded vide order dated 22.04.2024, to
dispose of the said writ petition by directing the petitioner to submit a detailed representation before the
Director of Secondary Education, Assam. It was further stipulated that the Director of Secondary
Education, Assam, on receipt of the representation from the petitioner, shall place the recommendation
made, in her favour by the jurisdictional District Scrutiny Committee, before the State Level Scrutiny
Committee. Thereafter, the process was directed to be taken to its logical conclusion in accordance with
the re-commendations as would now be made by the State Level Scrutiny Committee.
The petitioner, herein, being aggrieved by the said order and claiming that her services would
be mandated to be so considered under the provisions of the Act of 2011, has instituted under the
present review petition.

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4. Mr. M. Goswami, learned Senior Counsel, appearing for the petitioner has submitted that the
petitioner’s case was duly recommended by the District Scrutiny Committee for provincialisation of
her services much before the Act of 2011 was struck down. He further submits that the petitioner’s
case, in the attending facts and circumstances involved, would have to be deemed to have been so
provincialised by operation of law in view of the provisions of the Section 10 (4) of the Act of 2011,
read with the provisions of Section 6, thereof. He submits that in terms of the schedule appended to the
Act of 2011, a post of Music Teacher is mandated to be sanctioned for provincialisation of the Music
Teacher working in the school, provided that such teacher is found to be in position w.e.f. 01.01.2006
or before. He submits that the petitioner being appointed in the Dubi High School by the Managing
Committee of the school in the year 1998, as a Music Teacher, she was within the purview of the Act of
2011, for provincialisation of her services. He submits that there is no reason assigned as to the
exclusion of the name of the petitioner from the purview of provincialisation, when services of other
teachers in the school came to be provincialised vide order dated 20.08.2013, w.e.f. 01.01.2013.
5. The learned Senior Counsel in support of his submissions has placed reliance on a decision of a
Division Bench of this Court in the case of Mohar Ali Sheikh and Ors. Vs. State of Assam and Ors.
reported in (2024) 5 GLT 689 . He also places reliance on a decision of the Hon’ble Supreme Court in
the case of Nur Islam and Ors. Vs. State of Assam and Ors . [2025 INSC 1506].

6. In the above premises Mr. M. Goswami, learned Senior Counsel, submits that the order dated
22.04.2024, passed by this Court in WP(C).No.7596/2022, would mandate to be reviewed.

7. Per contra Ms. D. Mushahary, learned Standing Counsel, Secondary Education Department,
appearing for the respondents, by reiterating the facts noticed, hereinabove, has submitted that the Act
of 2011, having been struck down by this Court in the case of Chandan Kumar Neog (supra), it is a Act
that is to be treated as non-est from its inception. Accordingly, the petitioner cannot claim any right
under the statute that has already been declared unconstitutional and no mandamus can be issued for
enforcement of any right under the said statute already struck down. The learned counsel for the
respondents submits that the decision of the Division Court in the case of Mohar Ali Sheikh (supra)
would not advance the case of the petitioner, inasmuch as, the said decision was rendered after the

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disposal of the connected writ petition preferred by the petitioner. She submits that a subsequent change
of law or a later judgment cannot be projected as a ground for review under order XLVII Rule 1 of the
CPC. She further submits that in the present review petition, the petitioner has not highlighted any error
in the order dated 22.04.2024 and/or discovery of any new or important evidence, which would
mandate this Court to review its own order.

8. Ms. D. Mushahary, has further submitted that similar prayer made before this Court for
provincialisation of services of the teachers under the Act of 2011, after the said Act was set aside, as
being unconstitutional by this Court, were rejected by both the Co-ordinate Benches as well as the
Division Bench of this Court. In the above premises Ms. D. Mushahary, submits that the present review
petition would mandate to be dismissed.

9. I have heard the learned counsel for the parties and perused the materials available on record.

10. The review petitioner in the present review petition has based her case for such review on the
provisions of Section 10 (4) of the Act of 2011. Sub Section (3) of Section 10 of the said Act of 2011,
mandates that the jurisdictional District Scrutiny Committee, shall first scrutinize and then prepare a
list of all venture educational institutions situated within the District, which are eligible in terms of the
provisions of the Act, and, thereafter, proceed to scrutinize and verify the service records of all serving
employers, who are eligible or would become eligible for being consider for provincialisation of their
services. Sub Section (4) of Section 10, mandates that on completion of the scrutiny of the particulars
of the teachers working in various ventures educational institutions, the jurisdictional District Scrutiny
Committee, shall forward the verified list of eligible teachers, school wise, in accordance with the
number of post specified in the schedule appended to the Act, to the concerned Director, who shall after
making such further scrutiny, as may be required, forward the same to the concerned Department of the
State Government for consideration and for issuance of notification in respect of all eligible institutions
and employees eligible for getting their services provincialised.

11. Section 6 of the Act of 2011, mandates that w.e.f. the date of publication of the notification
under Sub Section (4) of Section 10, the Superintendence and control of all educational institutions

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coming within the purview of the Act, shall vest in the said State Government. In other words on a
notification being issued under the provisions of the Sub Section (4) of Section 10, the services of the
teachers so included in such notification shall be deemed to have been provincialised under the
provisions of the Act of 2011, and they would be deemed to have become Government servants.
In the case on hand the name of the petitioner was duly recommended for provincialisation of
her services, after scrutiny of her service particulars, by the jurisdictional District Level Scrutiny
Committee. However, the name of the petitioner was not included in the order dated 20.08.2013,
passed by the Director of Secondary Education, Assam, provincialising the services of teachers
working in Dubi High School w.e.f. 01.01.2013. The schedule appended to the Act of 2013, with regard
to the maximum number of employees entitled to have their services provincialised in each educational
institution, in so far as, it concerns High School, amongst others, also provides for creation of a post of
Music Teacher, wherein, the Music teacher is in position in the school since 01.01.2006 or before. In
the case on hand the petitioner is found to have been serving in the school as a Music Teacher w.e.f.
1998. However, vide the order dated 20.08.2013, while sanctioning posts, to the said School and
provincialising the services of eligible teachers and staff against the posts so sanctioned, a post of
Music Teacher is not found to have been sanctioned to the said school and accordingly, the services of
the petitioner was also not provincialised.
12. After the enactment of the Act of 2017, the same was assailed before this Court in a number of
writ petitions including a writ petition instituted by Music Teachers, similarly situated like the
petitioner, herein. A Division Bench of this Court vide Judgment and Order dated 04.10.2024,
proceeded to dispose of the said writ petition being WP(C).No.8148/2018, along with other writ
petitions pending before it. The Division Bench of this Court in the said decision had observed that the
employees in whose favour recommendation were made by the Scrutiny Committee, had a vested right
for their claims to be taken to its logical conclusions under the Act of 2011, as such it was held that
such vested right of those employees could not have been taken away by the subsequent enactment of
the Act of 2017. However, no mandamus having been issued in respect of the petitioner in
WP(C).No.8148/2018, the petitioners in WP(C).No.8148/2018 assailed the decision of the Division
Bench of this Court in the said writ petition before the Hon’ble Supreme Court by way of instituting
Civil Appeal No.13802/2025, arising from Civil Leave Petition being SLP(C).No.30099/2024 (Nur
Islam and Ors. Vs. State of Assam and Ors.) [2025 INSC1506].

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13. The Hon’ble Supreme Court upon consideration of the issues arising in the said appeal
proceeded vide order dated 18.11.2025, to dispose of the said appeal. The Hon’ble Supreme Court, in
the said order noticed that the Director of Secondary Education, Assam, has forwarded to the Secretary
Government of Assam, Education (Secondary) Department, a list of 214 Music Teachers, for
provincialisation of their services after due verification, however, no such notification being issued,
litigation came to be instituted culminating in the proceedings before the Hon’ble Supreme Court. After
noticing the conclusion drawn by the Division Court in the proceedings of Civil Appeal
No.13802/2025, found the same to be in favour of the appellants, therein, and held that a prima facie
case was made out for issuance of the writ of mandamus to the State and its authorities in terms of the
prayer made in the connected writ petition. The Hon’ble Supreme Court further held that nothing
contrary was brought on record to indicate that, at any point of time, there was any controversy/dispute
with regard to the veracity of the list of 214 persons taken note of, in the impugned judgment by the
Division Bench of this Court in the above noted writ petition.

14. Basing on the said conclusions, the Hon’ble Supreme Court proceeded to interfere with the
observations made by the Division Bench of this Court in WP(C).No.8148/2018 in paragraph-194,
thereof, and a writ of mandamus was issued to the State authorities concerned in terms of the prayer in
paragraph-4 of the said writ petition. The State Respondents were directed to complete the necessary
consequential actions within a period of 03 (three) months reckoned from the date of the order. It
further provided that the provincialisation in respect of the appellants, therein, would be effective from
01.01.2013.
15. Noticing the decision of the Division Bench of this Court, in WP(C).No.8148/2018, and other
analogous matters as well as the decision of the Hon’ble Supreme Court in the case of Nur Islam and
Ors. (supra), this Court is of the considered view that it is to be examined now as to whether the present
petitioner can also be held to be similarly situated like the appellants in the case of Nur Islam and Ors.
(supra). It is also to be examined as to whether the name of the petitioner figures within the list of 214
Music Teachers forwarded to the Government by the Director of Secondary Education, Assam, for
provincialisation of their services. The said exercise would be permissible to be so done on an affidavit
being filed in the matter dealing with the said issues by the State Respondents.
The developments as noticed, hereinabove, although have occasioned after the passing of the
order dated 22.04.2024, in the connected writ petition, this Court also notices that the issues involved,

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therein, were pending before the Division Bench of this Court, much prior to the date of institution of
the connected writ petition by the review petitioner, herein. Accordingly, the decisions noticed,
hereinabove, both by the Division Bench of this Court, as well as the Hon’ble Supreme Court would
have a bearing on the issues raised in the connected writ petition and the said aspect of the matter not
being considered by this Court vide the order dated 22.04.2024, this Court is of the considered view
that an error had occasioned in the order dated 22.04.2024, requiring the said order to be reviewed.

16. Considering the facts as well as the developments taking place with regard to the issues
involved, this Court is of the considered view that the case of the petitioner would also be required to
be examined in the light of the said developments and accordingly to permit such consideration to be
made by this Court, the order dated 22.04.2024, passed in WP(C).No.7596/2022, on review stands
recalled.

17. Registry to restore WP(C).No.7596/2022, to its original file and list the same for admission
hearing on 27.04.2026 .

18. With the above observations and directions, the present Review Petition stands allowed.
JUDGE
Comparing Assistant
Ranu
Boro
Digitally signed by Ranu Boro
DN: c=IN, o=Personal, postalCode=781005, l=Kamrup Metro, st=Assam, street=HOUSE NO 25
JAPORIGOG, KRISHNANAGAR,GUWAHATI, Japorigog, Dispur Assam India 781005 NEAR MASJID,
title=0094,
2.5.4.20=c747c5c0d257d22064ef564859e1ebec92d7 edcfa1fcc678cbde562c68c9e94f,
serialNumber=e8ee80fb826c508f1dcf37332bc0b9e2 47dba00f5758c2dde86f2e36159f37d6,
[email protected], cn=Ranu Boro
Date: 2026.04.17 14:08:55 +05'30'