Abdul Karim Mollah vs The State Of Assam And 4 Ors
- Court
- Gauhati High Court
GAHC010178132024
2026:GAU-AS:7351
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) Nos. 4498/2024 & 4628/2023
I. WP(C) No. 4498/2024
Mosharraf Hussain,
S/o Mojibar Rahman,
Village-Jhagrapar Part-I, PO-Jhagrapar,
PS-Dhubri, Dist.-Dhubri, Assam,
Pin-783325.
…… Petitioner .
-Versus-
1. The State of Assam,
Represented by the Commissioner & Secretary to the
Government of Assam, Education Department (Elementary),
Dispur, Guwahati-06.
2. The Director of Elementary Education, Assam,
Kahilipara, Guwahati-19.
3. The State Level Scrutiny Committee,
Represented by the Chairman-cum-Director of Elementary Education,
Assam.
4. The District Elementary Education Officer,
Dhubri, Assam.
5. The Executive Director,
Sarba Sikhsha Abhiyan Mission (SSA), Assam,
Kahilipara, Guwahati-781019.
6. The District Scrutiny Committee,
Dhubri, represented by its Chairman,
Dist.-Dhubri, Assam.
7. Abdul Karim Mollah @ Abdul Kasim Mollah,
S/o Lt. Abdus Salam Mollah,
WP(C) 4498/2024 & 4628/2023 Page 1 of 23
Vill-Kalapakani Part-II, PO-Patamari,
Dist.-Dhubri, Pin-783324.
8. Abu Taher Sheikh,
S/O Sorhab Ali,
Vill - Kalapakani Part – II, P.O. – Patamari,
Dist.- Dhubri, Assam, Pin – 783324.
…… Respondents .
For the Petitioner : Mr. I.H. Laskar,
Mr. P.K. Deka,
Mr. P. Daimary,
Mr. R. Karim,
Ms. N.M. Longkeng.
……Advocates.
For the Respondents : Mr. A. Phukan, SC, Ele. Edu.,
Mr. J. Abedin,
Mr. K.I. Mazumder,
Mr. M.Z. Rahman, SC, SSA,
Mr. H. Das.
……Advocates.
II. WP(C) No. 4628/2023
Abdul Karim Mollah,
S/o Late Abdus Salam Mollah,
Vill-Kalapakani, Part-II, PO-Patamari,
Dist.-Dhubri, Assam, Pin-783324.
…… Petitioner .
-Versus-
1. The State of Assam,
Represented by the Secretary to the Govt. of Assam,
Department of School Education,
Dispur, Guwahati-781006.
2. The Director of Elementary Education, Assam,
Kahilipara, Guwahati-781019.
3. The State Level Scrutiny Committee,
Represented by the Chairman-cum-Director of Elementary Education,
WP(C) 4498/2024 & 4628/2023 Page 2 of 23
Assam, Kahilipara, Guwahati-781019.
4. The District Level Scrutiny Committee,
Represented by its Chairman, Deputy Commissioner,
Dhubri, Pin-783330.
5. The District Elementary Education Officer,
Dhubri, Dist.-Dhubri, Assam, Pin-783330.
…… Respondents .
For the Petitioner : Mr. J. Abedin,
Mr. N. Sarma,
Mr. K.I. Mazumder.
……Advocates.
For the Respondents : Mr. A. Phukan, SC, Elem. Edu.,
GA, Assam.
……Advocates.
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
Date(s) of Hearing :- 25.02.2026
Date on which judgment is reserved :- 25.02.2026
Date of pronouncement of judgment :- 27.05.2026
Whether the pronouncement is of
the operative part of the judgment?
:- N/A
Whether the full judgment has been
pronounced?
:- Yes
WP(C) 4498/2024 & 4628/2023 Page 3 of 23
JUDGMENT AND ORDER
Heard Mr. P.K. Deka, learned counsel for the petitioner in
WP(C) No.4498/2024 and Mr. J. Abedin, learned counsel for the
petitioner in WP(C) No.4628/2023 as well as for the respondent
No.7 in WP(C) No.4498/2024. Also heard Mr. A. Phukan, learned
standing counsel for the respondents in Elementary Education
Department and Mr. H. Das, learned counsel for the respondent
No.8 in WP(C) No.4498/2024.
2. As parties involved in both the petitions are same, and the
issues required to be addressed in both the petitions are inter-
related and as agreed upon by both the parties, it is proposed to
dispose of both the petitions by this common judgment and order.
3. It is to be noted here that WP(C) No.4498/2024, is preferred by
the petitioner, namely, Mosharraf Hussain challenging the impugned
order, dated 04.02.2021, issued by the respondent No.2, by which
the service of the teacher in Kalapakani Sakatun Nessa M.E.
Madrassa have been provincialized without, however, the service of
the petitioner, who has been rendering service as an Assistant
Teacher in the subject Social Science. The petitioner has also prayed
for issuing direction to the respondent authorities, to provincialize
his service.
3.1. And in WP(C) No.4628/2023, the petitioner, namely, Abdul
Karim Mollah, has challenged the order, dated 18.07.2023, whereby
WP(C) 4498/2024 & 4628/2023 Page 4 of 23
the provincialization of service of the petitioner, dated 05.02.2021,
has been cancelled, without assigning any reason. The petitioner
also prayed for issuing direction to the respondents, more
particularly the respondent No.2, to restore the order of
provincialization, dated 05.02.2021, in respect of the petitioner, and
also prayed for allowing him to continue his service in the said
institution, as Tutor, with all consequential benefits.
Background Facts:-
4. The background facts, leading to filing of the WP(C)
No.4498/2024 and WP(C) No. 4628/2023 are briefly stated as
under:-
“The petitioner was appointed as an Assistant Teacher in
Kalapakani Sakatun Nessa M.E. Madrassa on a temporary
basis, on 14.06.2008, by the Managing Committee of the said
Madrassa. And accordingly, he joined as Assistant Teacher and
has been discharging his duties, teaching Social Science.
Thereafter, the District Scrutiny Committee has prepared a
report for provincialization of service, as per the statement
submitted by the Headmaster of the concerned Madrassa and
his name was mentioned at Sl.No.3, as an Assistant Teacher,
against Social Science subject, whereas the respondent No.7,
namely, Abdul Karim Mollah, who is the petitioner in WP(C)
No.4628/2023, is shown as Hindi Teacher, against the subject
language. Thereafter, vide Notification, dated 04.02.2021, the
respondent No.2, has provincialized the services of 5(five)
WP(C) 4498/2024 & 4628/2023 Page 5 of 23
teachers, including private respondent No.7, and thereby
deprived of the writ petitioner, from being provincialized,
although, he was the only Social Science teacher in the said
Madrassa.
Then, in the year 2017, the Government has enacted the
Assam Education (Provincialization of Services of Teachers and
Re-organization of Educational Institutions) Act, 2017
(hereinafter referred to as the Act of 2017) and Section 3 of
the said Act prescribes eligibility criteria for selection of
educational institutions, for provincializing the services of
teachers and tutors. And Clause (xi) of Section 3(1) of the Act
of 2017, provides for the number of teachers or tutors in a
venture upper primary school.
The total number of enrolment of students in the
Kalapakani Sakatun Nessa M.E. Madrassa was above 100, and
as per Section 19 and 25 of the Right of Children to Free and
Compulsory Education (RTE) Act, 2009 (hereinafter referred to
as the Act of 2009) in the aforesaid Madrassa, there is a
requirement of full-time head teacher, and at least one
teacher each for (i) Science and Mathematics, (ii) Social
Studies and (iii) Languages, and as per the provisions of the
Act of 2009 and the Act of 2017, the service of the petitioner
should have been provincialized as Assistant Teacher, against
the subject Social Science, since he, all along, has been
teaching Social Science subject. But, vide impugned
WP(C) 4498/2024 & 4628/2023 Page 6 of 23
Notification, dated 04.02.2021, the respondent No.2 in
contravention to the provisions of the Act of 2009, in a most
illegal and arbitrary manner, did not provincialize the service
of the petitioner, in the post of Assistant Teacher, against the
subject Social Science. Instead, the services of respondent
No.7 and other teachers have been provincialized in the post
of Assistant Teacher in the aforesaid Madrassa and further,
the report of the District Scrutiny Committee prepared on the
basis of the statement forwarded by the Headmaster of the
aforesaid Madrassa, the name of the respondent No.7 and
other provincialized teachers were shown against the subject –
Language, except Meheboob Alom Ahmed, who was
provincialized against Mathematics and Science subjects.
Thereafter, being aggrieved by the impugned order,
dated 04.02.2021, the present petitioner has preferred one
writ petition, being WP(C) No.2143/2021, before this Court.
But, vide order, dated 16.03.2022, this Court was pleased to
dispose of the same without determining the rights of the
parties and directed the respondent No.2, to examine the
matter as to whether the said Madrassa has 236 nos. of
students and if yes, as to whether one additional post of
teacher can be provincialized over and above three teachers,
who were provincialized under the Act of 2017, and further
directing the respondent No.2 to examine as to which teacher
of the said school is to be provincialized against such
WP(C) 4498/2024 & 4628/2023 Page 7 of 23
additional post and in doing so, the case of the petitioner shall
be given due consideration.
Thereafter, the petitioner has submitted the order of this
Court, dated 16.03.2022, before the respondent No.2. But, the
same failed to yield any result for which the petitioner had
instituted the Cont.Cas(C) No.95/2023. And during the
pendency of the said contempt petition, the respondent No.2
had passed the impugned order, dated 18.07.2023, cancelling
the provincialization of service of the respondent No.7, based
on the report of hearing, in respect of the WP(C)
No.2143/2021.
Thereafter, the respondent No.2 had issued the order
dated 21.06.2024, stating that after due verification by the
SLSC and the Joint Committee, had recommended that 5(five)
nos. of teachers for provincialization as Tutor against the said
school, wherein the name of the petitioner is reflected as the
sole teacher for the subject of Social Science. Moreover, it was
also stated that the Kalapakani Sakatun Nessa M.E. Madrassa
is not entitled for provincialization of services of more than 5
teachers, as per Section 3(1)(xi) of the Act of 2017 based on
the enrolment for the year 2016-17 and 2017-18 and
thereafter, the contempt petition was closed.
Thereafter, the petitioner has approached the
respondent No.2 and submitted his representation on
01.07.2024, and furnished a copy of the detailed order, dated
WP(C) 4498/2024 & 4628/2023 Page 8 of 23
21.06.2024, issued by the respondent No.2, with a copy of
the judgment and order, dated 16.03.2022, passed in WP(C)
No.2143/2021. But, the same failed to evoke any response
from the respondents.
Then, after cancellation order dated 18.07.2023, so
passed by the respondent No.2, the respondent No.7, Abdul
Karim Mollah, also approached this Court by filing a writ
petition, being WP(C) No.4628/2023, challenging the order,
dated 18.07.2023, suppressing the material fact that the
present petitioner is the only Social Science teacher of the said
Madrassa, and he has obtained the interim stay of the order
dated 18.07.2023, issued by the respondent No.2.
And under such circumstances, he has approached this
Court by filing the present petition seeking the relief as
aforesaid and the respondent No.7 of this petition has already
filed the WP(C) No.4628/2023, challenging the order dated
18.07.2023.”
5. The respondent No.2, the Director of Elementary Education,
Assam, has filed affidavit-in-opposition, wherein it is stated that
under Section 3(1)(xi) of the Act of 2017, 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, and the said Section also provides that
for additional posts, it shall be considered in accordance with the
norms and standard, stipulated under Sections 19 and 24 of the Act
WP(C) 4498/2024 & 4628/2023 Page 9 of 23
of 2009. It is also stated that the District Scrutiny Committee,
Dhubri, submitted proposal for provincialization of services as per
the Act of 2017 against Kalapakani Sakatun Nessa M.E. Madrassa
(now M.E. School) with the following 6(six) teachers:
(i) Abu Taher Sheikh, Language.
(ii) Sekender Ali, Language.
(iii) Mosharraf Hussain, Social Science.
(iv) Meheboob Alom Ahmed, Maths & Science.
(v) Kashem Ali, Language.
(vi) Abdul Karim Mollah, Language.
5.2. It is also stated that based on the recommendation of the
District Scrutiny Committee, Dhubri, the proposal, as received from
the District Elementary Education Officer (DEEO), Dhubri, was
placed before the State Level Scrutiny Committee, followed by the
Joint Committee, and as per decision of the Committee, vide
minutes dated 24.07.2020, the Joint Committee decided to verify
the following parameters of DISE data maintained by NUEPA, New
Delhi of the proposed school as per the Act of 2017:
(a) Whether the name of school appears in the DISE data
maintained by NUEPA, New Delhi for the year 2009 or
before?
(b) Whether the name of the incumbent appears in the DISE
data of 2011 and afterwards?
(c) Enrollment position of the school during 2016-17 and
2017-18.
WP(C) 4498/2024 & 4628/2023 Page 10 of 23
5.3. Further it is stated that as per instruction of the Joint
Committee, vide minutes dated 24.07.2020, the SSA, Assam
submitted the DISE data verification report maintained by NUEPA,
New Delhi, from which the enrolment position of the petitioner’s
school i.e. Kalapakani Sakatun Nessa M.E. School during 2016-17
and 2017-18 are shown as 170 and 137, respectively and as per
Section 3(1)(xi) of the Act of 2017, the said school was entitled for
provincialization of services of 5(five) nos. of teachers based on the
enrolment position 170, during 2017-18. Accordingly, (i) Abu Taher
Sheikh (Language), (ii) Sekender Ali (Language), (iii) Meheboob
Alom Ahmed (Maths & Science), (iv) Kashem Ali (Language) and (v)
Abdul Karim Mollah (Language) are found to be fulfilled all the
criteria laid down in the Act of 2017.
5.4. It is also stated that after the recommendation of the State
Level Scrutiny Committee, as well as the Joint Committee, the
proposal was submitted to the Government for creation of posts
against Kalapakani Sakatun Nessa M.E. School. Subsequently, the
Government had sanctioned posts of Tutors, as mentioned above,
and connected Notification was issued on 05.02.2021. Thereafter,
the petitioner approached this Court by filing WP(C) No.2143/2021,
and thereafter, a meeting of the State Level Scrutiny Committee
was convened on 12.12.2022, and upon verification of the data in
respect of the petitioner’s school, discrepancies have been found in
the recommendation of teachers as the names of teachers
recommended are different in hard copy in prescribed format and
WP(C) 4498/2024 & 4628/2023 Page 11 of 23
the copies of prescribed format sent through email and more than
one language teacher was provincialized in violation of Section
3(1)(xi) of the Act of 2017. And thereafter, the State Level Scrutiny
Committee decided to recommend the name of the petitioner as
Social Science teacher of Kalapakani Sakatun Nessa M.E. Madrassa
to the Government for provincialization of services as per the Act of
2017, by cancelling the service of one of the language teachers
(junior most amongst the language teachers).
5.5. It is also stated that the service of Abdul Karim Mollah, the
respondent No.7, was initially provincialized as Tutor along with
4(four) others against Kalapakani Sakatun Nessa M.E. School vide
Notification, dated 04.02.2021, which is also under challenge in the
present writ petition, has approached this Court in WP(C)
No.4628/2023, challenging the order dated 18.07.2023, passed by
the respondent No.2, whereby the provincialization order, dated
05.02.2021, in favour of the respondent No.7 has been cancelled.
However, vide order dated 11.08.2023, by an interim order, passed
in WP(C) No.4628/2023, the order dated 18.07.2023 is stayed.
5.6. Further, it is also stated that as per recommendation of the
District Scrutiny Committee, Dhubri, the following teachers are
eligible for provincialization of services as Tutor, under the provision
of the Act of 2017 against the Kalapakani Sakatun Nessa M.E.
School:-
(i) Abu Taher Sheikh, Language.
(ii) Sekender Ali, Language.
WP(C) 4498/2024 & 4628/2023 Page 12 of 23
(iii) Meheboob Alom Ahmed, Maths & Science.
(iv) Kashem Ali, Language.
(v) Mosharraf Hussain, Social Science.
6. The respondent No.7, the writ petitioner in WP(C)
No.4628/2023, has filed affidavit-in-reply to the affidavit-in-
opposition filed by the respondent No.2, wherein he had taken a
stand that the SLSC and the Joint Committee after due verification,
recommended and approved 5(five) teachers for provincialization
and that though the name of the petitioner was recommended by
the DLSC, Dhubri, but the SLSC and the Joint Committee did not
approve the same. Further, it is stated that as per enrolment data of
the school, it needs 5 nos. of teachers and one head teacher and
that the District Level Scrutiny Committee has rightly recommended
the names of 6 teachers and at present there are 236 nos. of
students in the school and in view of that number of students, as
per the Act of 2009, 7(seven) teachers, plus the Headmaster, all
total 8 teachers are required in the said school, and that the
authority has decided in the meeting, dated 12.12.2022, to
provincialize the service of the writ petitioner against the subject of
Social Science by cancelling the junior most amongst the language
teachers. But, the respondent No.7 is not the junior most language
teacher and that the respondent No.7 has not infringed the right of
the petitioner and the petition is devoid of merit and therefore, it is
contended to dismiss the same and it is also contended that the
WP(C) 4498/2024 & 4628/2023 Page 13 of 23
petitioner did not possess the required educational qualification in
the Higher Secondary School.
7. The respondent No.8, the In-Charge Headmaster of
Kalapakani Sakatun Nessa M.E. Madrassa, has also filed his affidavit-
in-opposition, wherein it is stated that for provincialization of the
school, under the Act of 2017, the information and particulars were
submitted before the District Level Scrutiny Committee along with
the statement, dated 03.06.2017, showing the educational and
professional qualifications of all the teachers, serving in the said
school, namely, the respondent No.8 himself (Social Science &
English), Sekender Ali (English & Assamese), Mehbub Alom Ahmed
(Mathematics & Science), Abdul Karim Mollah (Hindi), Kashem Ali
(Arabic) and the petitioner (Assamese & Social Studies) and the
District Scrutiny Committee has approved the same and thereafter,
the matter was placed before the State Level Scrutiny Committee,
and the State Level Scrutiny Committee has approved the service of
the respondent No.8, and 4 other teachers, vide order, dated
04.02.2021. But, in the final approval the writ petitioner was left
out from the benefit of provincialization.
7.1. Thereafter, the petitioner has preferred the WP(C)
No.2143/2023, challenging the provincialization of 4 teachers and
the said petition was disposed of in the line of the order dated
16.09.2021, passed in WP(C) No.4670/2021, whereby direction was
issued upon the District of Elementary Education to examine as to
whether the said school has 236 nos. of students and if yes, as to
WP(C) 4498/2024 & 4628/2023 Page 14 of 23
whether one additional post of teacher can be provincialized and
further, it is provided that if the school is entitled to one additional
post of teacher, then the case of the petitioner (Mosharraf Hussain)
shall be given due consideration. His further contention is that the
writ petitioner did not have the required educational qualification, as
at the time of entry, he did not acquire the educational qualification
and on the date of joining he did not possess the required
educational qualification i.e. 45% in HSLC/HS, at the time of his
appointment as required by the Rule of 2005, and under the given
facts and circumstances, it is contended to dismiss the petition.
Submissions:-
8. Mr. P.K. Deka, learned counsel for the petitioner, in WP(C)
No.4498/2024, has supported the order, dated 18.07.2023, by
which the respondent authority had corrected the mistake of non-
provincialisation of service of the petitioner, vide impugned order
04.02.2021. He submits that order, dated 18.07.2023, was passed
in accordance with the provisions of Section 3(i) (xi) of the Act of
2017. He further submits that this court in WP(C) No. 4628/2023,
vide order dated 11.08.2023, was pleased to stay operation of the
order dated 18.07.2023, and thereby the petitioner is deprived of
the benefit of provincialisation. He also submits that in the writ
WP(C) No. 4628/2023, the petitioner was not arrayed as a party and
this goes to she that he has no grievance against the petitioner.
Under such circumstance, Mr. Deka has contended to allow this
petition and to vacate the stay order dated 18.07.2023.
WP(C) 4498/2024 & 4628/2023 Page 15 of 23
8.1. Per contra, Mr. Abedin, learned counsel for the petitioner in
WP(C) No. 4628/2023, has supported the order dated 11.08.2023,
by which the order of cancellation of provicialisation of service of the
petitioner, dated 18.07.2023, issued by the respondent No.2, was
stayed. Mr. Abedin also submits that the DLSC and the SLSC and
Joint Committee, having considered all aspect, had recommended
for provincialisation of service of the petitioner, and accordingly, the
service of the petitioner was provincialized, vide order dated
05.02.2021. And in that view of the matter, the order of
cancellation, dated 18.07.2023, issued by the respondent No.2, is
illegal and arbitrary and as such, the same requires interference of
this court. He further submits that the earlier order of
provincialisation, dated 05.02.2021, in respect of the petitioner may
be restored. Mr. Abedin has also pointed it out that given the
enrolment position of the students as per Annexure-3 of WP(C) No.
4498/2024, in the year 2016, in the School was 170 and as such,
provincialisation of service of another teacher in the said Madrassa
is justified, and since the petitioner herein is rendering service for a
long period, his claim for provincialisation may be considered.
8.2. On the other hand, Mr. A. Phukan, learned standing counsel
for the respondents in Elementary Education Department, submits
that the order, dated 18.07.2023, was passed by correcting the
mistake done in the order dated 04.02.2021. He also submits that
as per provisions of Section 3(i) (xi) of the Act of 2017, there is a
requirement of provincialisation of service of teacher in the subject
Social Science and as no teacher in the subject Social Science was
WP(C) 4498/2024 & 4628/2023 Page 16 of 23
provincialised vide order, dated 04.02.2021, the same was corrected
by order dated 18.07.2023, by the respondent No.2. Therefore, Mr.
Phukan has contended to dismiss the WP(C) No. 4628/2023.
8.3. Having heard the submission of learned counsel for both the
parties, this Court has carefully gone through the petition and the
documents placed on record and gone through the relevant
provision of law. Also perused the orders so impugned in both the
petitions.
Consideration and Analysis:-
9. The basis facts, in both the petitions, are not in dispute. The
petitioner in WP(C) No.4498/2024, namely, Mosharraf Hussain was
appointed as an Assistant Teacher in Kalapakani Sakatun Nessa M.E.
Madrassa on a temporary basis, on 14.06.2008, by the Managing
Committee. Then he joined as Assistant Teacher and has been
discharging his duties, by teaching Social Science in the said
Madrassa. Thereafter, the District Scrutiny Committee has
forwarded his name at Sl.No.3 of the report, for provincialisation of
his service, as an Assistant Teacher against Social Science subject.
In the said report the respondent No.7, namely, Abdul Karim Mollah,
who is the petitioner in WP(C) No.4628/2023, is shown as Hindi
Teacher, against the subject language.
9.1. Thereafter, vide notification, dated 04.02.2021, the
respondent No.2, has provincialized the services of 5(five) teachers,
including private respondent No.7, and thereby deprived of
WP(C) 4498/2024 & 4628/2023 Page 17 of 23
Mosharraf Hussain, the writ petitioner in WP(C) No. 4498/2024,
from being provincialized, although he was the only Social Science
teacher in the said Madrassa. Then being aggrieved Musarraf
Hussain has challenged the order, dated 04.02.2021, in WP(C)
No.2143/2021, before this Court and the same was disposed of vide
order dated 16.03.2022, directing the respondent No.2, to examine
the matter as to whether enrolment in the said Madrassa was 236
nos. of students and if yes, as to whether one additional post of
teacher can be provincialized over and above three teachers, who
were provincialized under the Act of 2017, further, the respondent
No.2 was directed to examine as to which teacher of the said school
is to be provincialized against such additional post and in doing so,
the case of the petitioner shall be given due consideration.
9.2. Then due to inaction of respondent No.2, Musarraf Hussain
has instituted the Cont.Cas(C) No.95/2023. Only then the
respondent No.2 had passed the impugned order, dated
18.07.2023, cancelling the provincialization of service of the
respondent No.7, based on the report of hearing.
9.3. Thereafter, the respondent No.2 had issued the order dated
21.06.2024, stating that after due verification by the SLSC and the
Joint Committee recommended that 5(five) nos. of teachers for
provincialization as Tutor against the said school and wherein the
name of the petitioner is reflected as the sole teacher for the
subject of Social Science. It was also stated that the Kalapakani
Sakatun Nessa M.E. Madrassa is not entitled for provincialization of
WP(C) 4498/2024 & 4628/2023 Page 18 of 23
services of more than 5 teachers, as per Section 3(1)(xi) of the Act
of 2017 based on the enrolment for the year 2016-17 and 2017-18
and thereafter, the contempt petition was closed vide order dated
24.06.2024.
9.4. Then, after order of cancellation, dated 18.07.2023, being
passed by the respondent No.2, the respondent No.7, Abdul Karim
Mollah, also approached this Court by filing WP(C) No.4628/2023,
challenging the order, dated 18.07.2023, wherein, interim stay of
the order dated 18.07.2023, was granted.
10. It is to be noted here that Clause (xi) of Section 3(1) of the Act
of 2017 is read as under :-
“3(1)(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.”
10.1. Further, in view of relevant Schedule of Section 19 and 25 of
the Right of Children to Free and Compulsory Education (RTE) Act,
2009 (hereinafter referred to as the Act of 2009) the requirement of
numbers of teachers are extracted as under:
WP(C) 4498/2024 & 4628/2023 Page 19 of 23
1. Number of teachers:-
(a) For first class to fifth class
Admitted children Numbers of teachers
Up to Sixty Between sixty -Two
Between sixty-one to ninety - Three
Between ninety-one to one hundred and twenty - Four
Between One hundred and twenty-one to two hundred - Five
Above One hundred and fifty children -- one Head teacher
Above Two hundred children -- Pupil-Teacher Ratio (excluding
Head-teacher) shall not exceed
forty.
(b) For sixth class to eighth class:-
1) At least one teacher per class so that there shall be at least one
teacher each for-
(I) Science and Mathematics;
(II) Social Studies;
(III) Languages.
2) At least one teacher for every thirty-five children.
3) Where admission of children is above one hundred:-
(i) a full time head-teacher;
(ii) part time instructors for-
(A) Art Education;
(B) Health and Physical Education;
(C) Work Education.
10.2. Thus, it appears that in the Kalapakani Sakatun Nessa M.E.
Madrassa, there is a requirement of full-time head teacher and at
least one teacher each for (i) Science and Mathematics, (ii) Social
WP(C) 4498/2024 & 4628/2023 Page 20 of 23
Studies and (iii) Languages and as per the provisions of the Act of
2009 and the Act of 2017, given the enrollment position of the
students.
11. In the instant case, the respondent No.2, in view of the
relevant provision of law, as discussed herein above, has fairly
admitted in paragraph No. 8 of the Affidavit in opposition, dated
17.07.2025, that more than one language teacher was provincialised
in violation of Section 3(1) (xi) of the Act of 2017.
12. Further, respondent No.2, in the affidavit dated 24.09.2025,
had categorically stated that following teachers are found to be
eligible for provincialization of services as Tutors, under the
provision of the Act of 2017, against the Kalapakani Sakatun Nessa
M.E. School:-
(i) Abu Taher Sheikh, Language.
(ii) Sekender Ali, Language.
(iii) Meheboob Alom Ahmed, Maths & Science.
(iv) Kashem Ali, Language.
(v) Mosharraf Hussain, Social Science.
13. And in view of the aforementioned admitted facts, and in view
of the cancellation of the provincialization order of the respondent
No.7 and also in view of the admission made, that more than one
language teacher was provincialized in violation of Section 3(1)(xi)
of the Act of 2017, this Court is of the view that nothing left to be
WP(C) 4498/2024 & 4628/2023 Page 21 of 23
adjudicated in the writ petition No. 4498/2024. Moreover, the
respondent No. 2 had also issued an order dated 21.06.2024, after
due verification.
14. Further, in view of the contention made by Mr. Abedin,
learned counsel for the respondent No.7, and the data in respect of
the enrolment of students in the said Madrassa, which has been
projected before this Court, this Court is of the view that there is a
requirement to relook the number of enrolment in the said school so
as to ascertain the requirement of provincialization of another
teacher.
Conclusion:-
15. In the given factual and legal scenario following observation
and directions are passed:-
(i) By a mandamus of this Court, the respondents
authorities are directed to provincialize the services of
the petitioner, namely Mosharraf Hussain, in WP(C) No.
4498/2024, in the subject -Social Science with effect
from the date of provincialization of the said Madrassa,
vide order dated 04.02.2021, and to give effect of the
order, dated 21.06.2024.
(ii) Respondent No.2 is further directed to examine the data
in respect of the enrolment of students in the Madrassa,
which has been projected before this Court, by the
petitioner in WP(C) No. 4628, namely, Abdul Karim
WP(C) 4498/2024 & 4628/2023 Page 22 of 23
Mullah and thereafter, to take a decision as to whether
one additional post is required in the said Madrassa and
if it is found to be justified, then the service of
respondent No.7 has also to be provincialized with effect
from the date of 04.02.2021.
(iii) Let the aforementioned exercise be carried out within a
period of 3(three) months from the date of receipt of
certified copy of this order.
(iv) The petitioners shall obtain a certified copy of this order
and place the same before the respondent authorities,
within a period of one week from today.
16. The parties have to bear their own costs.
Sd/- Robin Phukan
Comparing Assistant
JUDGE
WP(C) 4498/2024 & 4628/2023 Page 23 of 23