Anjuwara Khatun vs The State Level Scrutiny Committee
- Court
- Gauhati High Court
GAHC010263352025
2026:GAU-AS:7531
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
Writ Petition (Civil) No. 6968/2025.
Anjuwara Khatun,
W/o Abdur Roshid,
Vill. – Mayer Char Pt-II,
P.O. – Nayer Alga,
P.S. – Bilasipara,
Dist. – Dhubri, Assam,
PIN – 783349.
…… Petitioner.
- Versus -
1. The State Level Scrutiny Committee,
Represented by the Director of Elementary Education Department, Assam,
Kahilipara, Guwahati - 19.
2. The State of Assam,
Represented by the Secretary to the Government of Assam,
Education (Elementary) Department,
Dispur, Guwahati - 6.
3. The Director of Elementary Education Department, Assam,
Kahilipara, Guwahati - 19.
4. The District Scrutiny Committee for Elementary Education,
Represented by its Chairman cum Deputy Commissioner, Dhubri, Assam,
Page 1 of 26
PIN - 783301.
5. The District Elementary Education Officer, Dhubri,
Dist. - Dhubri, Assam,
PIN - 783349.
6. The Head Master cum Secretary, Uttar Ghunimari L.P. School,
Vill. – Mayer Char Pt-II,
P.O. – Nayer Alga,
P.S. – Bilasipara,
Dist. – Dhubri, Assam,
PIN – 783349.
…… Respondents.
BEFORE
HON’BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner :- Mr. M.U. Mahmud.
Advocate for the respondent Nos. 1, 2, 3, 5 & 6 :- Mr. A. Phukan.
Advocate for the respondent No. 4 :- Ms. D.D. Barman.
Date of hearing :- 01.04.2026.
Date of which judgment is reserved :- 01.04.2026.
Date of pronouncement of judgment :- 01.06.2026.
Whether the pronouncement if of the :- N/A
operative part of the judgment?
Whether the full judgment has been :- Yes
pronounced?
Page 2 of 26
JUDGEMENT & ORDER (CAV)
Heard Mr. M.U. Mahmud, learned counsel for the petitioner; Mr.
A. Phukan, learned Standing Counsel for the Elementary Education
Department, being respondent Nos. 1, 2, 3, 5 & 6; and Ms. D.D.
Barman, learned Additional Senior Government Advocate for the
respondent No. 4.
2. In this petition, under Article 226 of the Constitution of India,
the petitioner has challenged the speaking order, dated 01.10.2024,
issued by the Director of Elementary Education, Assam (DEE
hereinafter) and also the decision of State Level Scrutiny Committee
(SLSC hereinafter) dated 07.02.2024, whereby her claim for
provincialisation as Assistant Teacher of Uttar Ghunimari L.P.
School, was rejected.
2.1. Further, in this petition, the petitioner has also prayed for
issuing direction to the respondent authorities to provincialise her
service as Assistant Teacher of Uttar Ghunimari L.P. School.
Background Facts:-
3. The background facts, leading to filing of the present petition,
are adumbrated herein below:-
“On 15.07.2004, the petitioner was appointed as Assistant
Teacher of Uttar Ghunimari L.P. School and she joined the
school on 18.07.2004, and since the date of her joining in the
Page 3 of 26
school, she has been working there without any break and
with the satisfaction of all concerned.
Thereafter, the said school was provincialised w.e.f.
01.01.2013, vide order No. EE(Plan)/Provn/Dhubri/Venture
L.P/62/Pt-II/205/127, dated 09.12.2013, with 2 posts (one
Head Teacher and one Assistant Teacher) by showing one
post vacant.
Though the post of Head Teacher was provincialised
w.e.f. 01.01.2013, the post of the petitioner was not
provincialised, but shown as vacant.
The pleaded case of the petitioner is that the DLC, due to
over sight, had recommended a wrong name in place of the
petitioner to the DEE. Later on, though the DLC had rectified
the mistake and recommended the name of petitioner for
provincialisation, yet in the meantime, while the
provincialisation of service of the petitioner was under
process, this Court, vide order dated 23.09.2016, struck
down the Assam Venture Educational Institutions
(Provincialization of Services) Act, 2011 (Act of 2011
hereinafter).
Thereafter, though the Government had enacted a new
act, namely, the Assam Education (Provincialization of Service
of Teacher and Re-Organization of Educational Institutions)
Page 4 of 26
Act, 2017 (Act of 2017 hereinafter), yet the service of the
petitioner has not been provincialised till today.
Being aggrieved, she had approached this Court by filing
a writ petition, being W.P.(C) No. 5945/2021. Thereafter,
considering the case of the petitioner, a Coordinate Bench of
this Court was pleased to pass an order, dated 09.01.2024,
by directing the DEE to consider her case by the SLC for
provincialisation in terms of the recommendation made by
the DLC, vide communication, dated 07.05.2015, and
17.11.2018, and to pass a speaking order, in the event that
the petitioner is eligible to be provincialised and further
directed that her service should be provincialised w.e.f.
04.02.2021.
Thereafter, the DEE had placed the case of the petitioner
before the SLC, on 07.02.2024 and as per the decision of
SLC, the DEE had passed the impugned order, dated
01.10.2024, whereby the claim for provincialisation of her
service as Assistant Teacher of Uttar Ghunimari L.P. School
was rejected. ”
4. Then being aggrieved, the petitioner has approached this Court
by filing the present petition with the following relief.
5. The respondent No. 3, the DEE, has filed affidavit-in-opposition,
wherein a stand has been taken that the Uttar Ghunimari L.P.
School was provincialised during the year 2013, with
Page 5 of 26
provincialisation of Abdul Rashid and keeping one post vacant, as
the other incumbent, namely, Mogol Hussain, was found to be not
qualified. Thereafter, the respondent No. 5 had informed that the
name of the petitioner was not recommended at the time of
provincialisation due to inadvertent mistake.
5.1. Another stand taken by the respondent No. 3 is that based on
the report of the respondent No. 5, the Government had directed to
proceed with the matter of provincialization of service of the
petitioner as per the Act of 2017, since the Act of 2011 was struck
down by this Court, vide order dated 23.09.2016, passed in W.P.(C)
3190/2012. Thereafter, the proposal was placed before the SLSC,
but the SLSC could not recommend the name of the petitioner as
she did not fulfill the DISE criteria, and being aggrieved for non-
provincialization of her services, she had filed a petition before this
Court, being W.P.(C) 5945/2021 and this Court, vide order dated
09.01.2024, had directed the respondent authorities to place the
case of the petitioner before the SLSC for consideration towards
provincialization of her service under the Act of 2017.
5.2. Accordingly, the proposal of the petitioner was placed before
the SLSC, in its meeting held on 07.02.2024, and the SLSC had
reviewed the case of the petitioner and found that the petitioner
does not fulfill the DISE criteria, as her name is not appeared in the
DISE Data till 2016 – 2017, and therefore, the SLSC had rejected
her claim for provincialization of service and authorized the
respondent No. 2 to issue speaking order and accordingly, vide
Page 6 of 26
impugned speaking order dated 01.10.2024, the respondent No. 2
had rejected the claim of the petitioner for provincialisation of her
service as per the Act of 2017.
5.3. It is also stated that, thereafter, the petitioner had filed one
writ petition, being W.P.(C) No. 6968/2025, wherein this Court, vide
order dated 10.12.2025, had directed that the learned standing
counsel for the Elementary Education Department, shall obtain
instructions as to whether the petitioners of W.P.(C) No. 3499/2014
and W.P.(C) No. 6804/2017 were appointed by the State, in
compliance with the direction passed in those writ petitions and if
they have been appointed by the State, then their appointment
letters shall be produced before the Court on the next date.
5.4. It is also stated that W.P.(C) No. 3499/2014, pertains to the
Directorate of Secondary Education and W.P.(C) 6804/2017,
pertains to the Directorate of Higher Education and that the DISE
Data of Elementary School was maintained from 2006 – 2007 and
accordingly, provincialization of services is done as per DISE related
conditions under the Act of 2017, and for provincialization of
schools, under Secondary Education, separate parameters are used
and as such, the DISE related matter is not similar with Secondary
Education institution as well as Higher Educational Institutions, with
the Institution of Elementary Education.
5.5. It is further stated that the appointment orders of the
petitioners in W.P.(C) No. 3499/2014, and W.P.(C) No. 6804/2017,
Page 7 of 26
are not issued by the Directorate and that the name of Mogol
Hussain is found to be appeared in the DISE Data against the
petitioner’s school from 2010 – 2011 till 2015 – 2016, i.e. during the
provincialization, as per Act of 2011, year 2013. On the other hand,
the name of the petitioner was found to be appeared in the year
2016 – 2017, after three years of provincialization of school during
the year 2013, and that her name should have appeared in the DISE
Data earlier as she had claimed to have joined the school on
18.07.2004, as per the Writ Petitions. Therefore, the matter of
inadvertent mistake is doubtful. It is also stated that permanent
retention of posts provincialized in the year 2013, has been issued
by the Government only against posts, which are held by
incumbents and all vacant posts are abolished and as such, the
vacant post of the petitioner’s school is abolished and under such
circumstances, it is contended to dismiss this petition.
6. The petitioner has also filed an additional affidavit, bringing on
record one appointment order, dated 05.02.2025.
Submissions of learned counsel for the petitioner:-
7. Mr. Mahmud, learned counsel for the petitioner submits that
the petitioner was appointed in the year 2004, and since then, she
has been rendering her service as Assistant Teacher in Uttar
Ghunimari L.P. School and that the said school was provincialised in
the year 2013. However, the service of the petitioner was not
provincialised, for the reason that -instead of the name of the
Page 8 of 26
petitioner, the DLC had forwarded the name of one Mogol Hussain,
but no person, by the name of Mogol Hussain was there.
Subsequently, when the matter was brought to the notice of the
DLC, the DLC had corrected the same and forwarded it to the SLC.
But, the SLC had rejected the claim of the petitioner.
7.1. Mr. Mahmud further submits that though the case of the
petitioner was considered under the Act of 2017, yet her case ought
to have been considered under the Act of 2011, as the school has
already provincialised in the year 2013, long before coming into
force of the Act of 2017. Mr. Mahmud also submits that in view of
Section 4(1) of the Act of 2011, the service of the petitioner is
deemed to have been provincialised by operation of law. To bolster
his submission, he has referred to a decision of this court dated
03.10.2018,
in WP(C) No. 6804/2017(Dilip Das vs. The
and decision dated 22.01.2019,
State of Assam and 2 Others)
in WP(C) No. 3499/2014 (Sailendra Nath Sarma vs. The
State of Assam and 4 Others).
7.2 . Referring to the order of appointment of one Sailendra Nath
Sharma, the petitioner in WP(C) No. 3499/2014, which is annexed
with the additional affidavit filed by the petitioner, Mr. Mahmud
submits that pursuant to the direction passed in the said petition by
this court the petitioner was appointed by the respondent
authorities and that the present petitioner is similarly situated with
the petitioner in the said petition and as such she is entitled to
similar benefit.
Page 9 of 26
7.3. Under such circumstances, Mr. Mahmud has contended to
allow this petition by setting aside the speaking order and direct the
respondent authorities to provincialise the service of the petitioner.
Submissions of learned counsel for the respondents:-
8. Per-contra, Mr. Phukan, learned Standing Counsel for the
Elementary Education Department, has vehemently opposed the
petition. He submits that the case of the petitioner was considered
under the Act of 2017, where one of the requirements of
provincialisation of service is fulfillment of DISE criteria. But, the
petitioner herein has failed to satisfy the requirement of DISE and
therefore, her case could not be considered.
8.1. Further, Mr. Phukan submits that as per DISE data, the name
of one Mogol Hussain was found to be reflected against the school
where the petitioner is serving, but, his service could not be
provincialised due to lack of qualification.
8.2. Under the given facts and circumstances Mr. Phukan also
submits that this writ petition is devoid of merit and therefore, he
has contended to dismiss the same.
Consideration and Analysis:-
9. Having heard the submissions of learned counsel for both the
parties, this Court has carefully gone through the petition as well as
the documents placed on record and also perused the impugned
speaking order dated 01.10.2024.
Page 10 of 26
10. The impugned speaking order, dated 01.10.2024, is extracted
herein below:-
Government of Assam
Office of the Director of Elementary Education, Assam
Kahilipara, Guwahati – 19
ORDER
Read: The Hon’ble High Court Order dated 09.01.2024, passed
in W.P.(C) No. 5945/2021 (Anjuwara Khatun v/s The State of Assam
and others).
Perused:
1. Proposal for Provincialisation of Services submitted by
DEEO, Dhubri with recommendation of DSC, Dhubri letter
dated 11/01/2018.
2. Minutes of meeting of SLSC, dated 21/11/2020.
3. Minutes of meeting of SLSC, dated 07/02/2024.
4. Minutes of meeting of Joint Committee, dated 24/07/2020.
Findings:
DSC. Dhubri submitted proposal for Provincialisation of
services as per Act 2011 as amended in 2012 in respect of
Uttar Ghunimari VLP School. This office submitted proposal
to Govt. and accordingly, Govt. sanctioned one post and this
office issued provincialisation order to Abdul Rasid against
Uttar Ghunimari VLP School keeping one post vacant as per
Govt. instruction vide letter No. PMA.29/2013/Ptiii/121,
dated 22/11/2013. Communications were made with Govt.
regarding provincialisation of service of Anjuwara Khatun
against Uttar Ghunimari VLP School vide this office letter
No. EPD-185/2013/Pt-i/52, dated 28/05/2016 and EPD-
185/2013/Pt-i/57, dated 17/09/2016.
Page 11 of 26
In the meantime, as per the Hon'ble High Court order dated
23/09/2016, passed in WP(C) No. 3190/2012, "The Assam
Venture Educational Institutions (Provincialisation of
Services) Act. 2011." had been struck down and Govt. enacted
"The Assam Education (Provincialisation of Services of
Teachers and Re- organisation of Educational Institutions)
Act, 2017" for provincialisation of services of teachers of
venture Educational Institutions.
Thereafter a letter was received from the Govt. regarding
Provincialisation of Services of Anjuwara Khatun as A.T. of
Uttar Ghunimari VLP School as per Act. 2017 due to repeal of
the earlier Act, 2011 as amended 2012 vide Govt. Letter No.
PMA-241/2016/35, dated 17/11/2018.
Accordingly, DEEO, Dhubri submitted the proposal for
Provincialisation of Services as per Act 2017 along with
recommendation of DSC, Dhubri to this office and this office
submitted the proposal along with recommendation of SLSC as
well as Joint Committee constituted by Govt. under
Chairmanship of R.C. Jain, IAS (Retd.) Chairman, SEBA to
examine the proposal for Provincialisation of Services as
per Act. 2017 vide Govt. Notification No. PMA. 162/2019/600-
A dated 18/03/2019.
Subsequently, as per minutes of the Joint Committee
meeting held on 24/07/2020 decision was taken to instruct
the Mission Director, SSA to verify the following DISE
related parameters:
(a) Whether the name of school appear in DISE data
(maintained by NUEPA New Delhi) of 2009 or before.
(b) Whether the name of incumbent appear in the DISE data of
2011 and afterwards.
(c) Enrolment position of the school during 2016-17 and
2017-18.
Page 12 of 26
Accordingly, SSA, Assam submitted the DISE data in which the
name of petitioner Anjuwara Khatun, A.T. of Uttar Ghunimari VLP
School does not appear in DISE data up-to 2011-12.
The proposal as received from DSC, Dhubri was placed before
the SLSC as well as Joint Committee constituted by Govt. in
respect of Provincialisation of Services of the petitioner,
Anjuwara Khatun against Uttar Ghunimari VLP School. Upon
verification of the DISE data as submitted by SSA, Assam, it had
been found that the petitioner, Anjuwara Khatun does not fulfil
the criteria as laid down in the minutes of the Joint Committee
meeting as the name of the petitioner does not appear in the
DISE data of up to 2011-12.
In view of the mentioned facts SLSC as well as the Joint
Committee constituted by Govt. could not recommend the name of
the petitioner, Anjuwara Khatun for provincialisation of
services as per Act, 2017.
Being aggrieved, the petitioner Anjuwara Khatun filed a court
case before Hon'ble Gauhati High Court in WP(C) 5945/2021, and
the Hon'ble Court passed an order dated 09/01/2024 in WP(C)
5945/2021 with a direction to dispose of the writ petition
stating that "view of the above, this writ petition is disposed
of directing the Director of Elementary Education, Assam to
forthwith have the case of the petitioner considered by the
State Level Committee for provincialisation of her services in
terms of the recommendation made by the District Level Committee
and as indicated in the communication dated 07.05.2015 and
17.11.2018, referred to hereinabove. The said exercise be
initiated and completed within a period of 3(three) months from
the date of receipt of a certified copy of this order. The
outcome of this exercise be communicated to the petitioner in
the form of a speaking order and in the event the petitioner's
services are found to be eligible to be provincialised, her such
services shall be provincialised w.e.f. 04.02.2021."
Accordingly, matter is placed before SLSC, dated 07/02/2024
and it was found that:
i. The name of petitioner was recommended by DSC, Dhubri for
provincialisation of services as per Act, 2017.
Page 13 of 26
ii. The proposal was placed before SLSC, as well Joint
Committee constituted by the Govt. and forwarded to the
SSA, Assam for verification of petitioner name in DISE.
iii. But, the petitioner, Anjuwara Khatun does not fulfil the
criteria as laid down in the minutes of the Joint
Committee meeting, since the name of the petitioner does
not appear in the DISE data of up to 2011-12.
Accordingly, SLSC decided and authorized DEE, Assam to reject
the claim of petitioner for provincialisation of services as per
Act/2017 by issuing a Speaking order.
Decision: - As per clause 4(iii) of the Act, 2017, the teachers
of Venture Education Institutions are to be eligible for
provincialisation of services, who joined in the institution on
or before 31/12/2010. Accordingly, the Joint committee vide
minutes dated 24/07/2020 resolved for uniformity of the date of
joining to verify the appearance in DISE data for the year 2011-
12 and afterwards as the DISE data is updated in September every
year.
But the petitioner name does not appear in DISE data upto
2011-12, hence, SLSC as well as Joint Committee could not
recommend the name of petitioner, Anjuwara Khatun for
provincialisation of services as per Act, 2017 against Uttar
Ghunimari LP School and accordingly claim of the petitioner is
hereby rejected.
This order is issued in compliance of the Hon'ble High
Court order, dated 09/01/2024, passed in WP(C) 5945/2021-
(Anjuwara Khatun V/s The State of Assam & others).
S/d- Smti. Suranjana Senapati, ACS
Director
Elementary Education, Assam
Kahilipara, Guwahati-19
11. It appears from the impugned order that the petitioner does
not fulfill the DISE criteria. It also appears that as per clause 4(iii) of
Page 14 of 26
the Act, 2017, the teachers of Venture Education Institutions, in
order to be eligible for the provincialisation of services, must have
joined the institution on or before 31/12/2010. Further, from the
minutes of the Joint Committee, dated 24/07/2020, it appears that it
has been resolved for uniformity of the date of joining to verify the
appearance in DISE data for the year 2011-12 and afterwards.
Further it appears that the name of the petitioner did not appear in
DISE data up to 2011-12, and therefore the SLSC, as well as Joint
Committee, could not recommend the name of petitioner, for
provincialisation of services as per Act, 2017 against Uttar
Ghunimari LP School.
12. It is not in dispute that the case of the petitioner is considered
under the Act of 2017, not under the Act of 2011, as the same was
struck down by Division Bench of this Court, vide order dated
23.09.2016, in W.P.(C) No. 3190/2012.
13. But, the pertinent question is, under which Act, the case of the
petitioner ought to have been considered.
13.1. It is worth mentioning in this context that the school, in
which the petitioner has been serving, was provincialised in the year
2013, vide order dated 09.12.2013, while the Act of 2011 was
holding the field. But, the said Act was struck down by this court,
vide order dated 23.09.2016, in W.P.(C) No. 3190/2012.
13.2. Before proceeding further, this court deems it necessary to
look into the repeal and saving provision of the Act of 2017.
Page 15 of 26
Provision. The relevant provision is Section 24 of the Act of 2017, is
read as under:-
“The Assam Venture Educational Institutions
(Provincialisation of Services)Act, 2011 as
amended vide the Assam Venture Educational
Institutions (Provincialisation of Services)
(Amendment)Act, 2012 and the Assam Venture
Educational Institutions (Provincialisation of
Services) (Amendment) Act, 2013, which have been
struck down by the Hon'ble Gauhati High Court
vide order dated 23.09.2016 in WP(C) No.
3190/2012, and all rules, orders, notifications
issued there under, shall stand repealed,
however, all the teachers whose services were
provincialised prior to 23.9.2016, shall continue
and their cases shall be reviewed as per the
eligibility norms set forth for provincialisation
under this Act.”
14. In the instant case, the petitioner was appointed as Assistant
Teacher of Uttar Ghunimari L.P. School on 15.07.2004. Since then,
the petitioner has been rendering her services. The statement and
averments in this regard by the petitioner in the paragraph No. 3 of
the petition have remained un-traversed in the affidavit in
opposition filed by the respondent No.2. On account being non-
traversed, the same has to be accepted as admitted by the
respondent authorities more particularly by the respondent No.2.
The school, i.e. Uttar Ghunimari L.P. School, in which the present
petitioner is serving, was provincialised, and two posts, one
Page 16 of 26
Headmaster and one Asstt. Teacher were created and the post of
Asstt. Teacher is lying vacant, prior to the date so mentioned in
Section 24 of the Act of 2017, i.e. on 23.9.2016. In that view of the
matter, this court is of the view that applicable Act here in would be
the Act of 2011.
14.1. Further perusal of Section 4(1) of the Act of 2011, reveals
that on the date of coming into force of the Act of 2011, the
services of employees of all eligible venture educational institutions
shall be deemed to have been provincialised and they shall become
employees of the State Government with effect from that date,
provided such institutions have completed at least 7 years of
imparting education from the date of affiliation, recognition,
concurrence or permission, as the case may be, as on the date of
coming into force of this Act. Notably, the said Act came to be
th
notified in the official Gazette on 5 September, 2011. Thus, having
been appointed on 15.07.2004, the petitioner had already
completed 7 years, when the Act of 2011, came into force and it
also appears that the petitioner had fulfilled the requirements of
Section 3 of the said Act. It is to be noted here that the School has
already been provincialised, creating two posts, i.e. one head
master and another Asstt. Teacher and provincialising the service of
the Head Master. Notably, the petitioner was left out on account of
mistake committed by the DLSC, while forwarding the name of the
Assistant Teacher. Though, the mistake was corrected, the same
Page 17 of 26
was not accepted by the SLC and Joint Committee by holding the
explanation for the mistake as doubtful.
14.2. The provision of Section 4(1) is extracted herein below:-
"The services of the employees of all eligible
Venture Educational Institutions under Section 3
shall be deemed to have been provincialised on
the date of coming into force of this Act and
they shall become employees of the State
Government with effect from that date, provided
such institutions have completed at least 7 years
of imparting education from the date of
affiliation, recognition, concurrence or
permission, as the case may be, as on the date of
coming into force of this Act.
Provided that the services of those
employees of the Venture Educational Institutions
eligible for provincialisation under Section 3
which have not completed 7 years of their
imparting education from the date of their
affiliation, recognition, concurrence or
permission, as the case may be, as on the date of
coming into force of this Act, shall be
provincialised as and when the concerned
educational institution completed 7 years of
Imparting education from the date of such
affiliation, recognition, concurrence or
permission, as the case may be."
14.3. It also appears that Section 10 of the Act provides for
constitution of District Scrutiny Committee and Sub-Section (4)
Page 18 of 26
provides that the District Scrutiny Committee shall forward the
verified list of eligible teachers school-wise in accordance with the
number of posts specified in the Schedule appended to this Act, to
the concerned Director who shall, after making such further scrutiny
as may be required, shall forward the same to the concerned
Department of the State Government for consideration and for
issuing Notification in respect of the eligible institutions and
employees eligible for getting their services provincialised. In the
instant case, the DLSC has forwarded the names of two teaches,
one of whom was already provincialised and the name of the
petitioner was mistakenly forwarded, for which her service was not
provincialised though subsequently the mistake was rectified by
DLSC, yet, in the meantime the Act of 2011 was struck down and
her case was considered under the Act of 2017, and due to non-
fulfillment of DISE criteria the same was rejected. But, such a
criteria was not there in the Act of 2011, and the requirement of
Section 3 of the said Act has already been held to be fulfilled.
14.4. Indisputably, in the instant case, the school was provincialised
in the year 2013, by creating two posts, one for Headmaster and
another for the Assistant Teacher. But, the post of Assistant Teacher
has not been filled up. In that view of the matter, under Section
4(1) of the Act of 2011, the service of the petitioner is deemed to
have been provincialised w.e.f. the date of coming into force of the
said Act. Mr. Mahmud, learned counsel for the petitioner has rightly
pointed this out and the decisions in WP(C) No. 6804/2017(Dilip
Page 19 of 26
Das vs. The State of Assam and 2 Others), and in WP(C)
No. 3499/2014 (Sailendra Nath Sarma vs. The State of
Assam and 4 Others), referred by him also strengthened the
same.
14.5. In the case of Dilip Das (supra) [ WP(C) No.
6804/2017(Dilip Das vs. The State of Assam and 2
Others)], a Co-ordinate Bench of this Court, while dealing with
the issue, specially Section 4(1) of the Act 2011, has held as
under:-
“9. It is an admitted position that upon
verification of the numbers of the employees
of the Pachim Guwahati Mahavidyalaya, the
authorities arrived at a conclusion as per
Annexure-5 page 16 statement that the
petitioner is within the permissible number as
provided in the Schedule to the Act of 2011.
Once this conclusion is arrived at by the
authorities, there is no further requirement
of issuing any order to provincialise the
service of the petitioner inasmuch as, his
service stood provincialised by operation of
law u/s 4(1) of the Act of 2011.
10. In the present case, some other dissatisfied
employees of the college had assailed the
statement showing the inclusion of the
petitioner within the numbers provided in the
Schedule, which upon being assailed, was
initially stayed by this Court by the order
dated 27.05.2013 in WP(C) No.2908/2013. But,
subsequently by the order dated 01.09.2016,
Page 20 of 26
the interim order so passed, stood vacated,
meaning thereby that the statement including
the name of the petitioner within the numbers
specified in the Schedule stood as it was.
11. A stand had been taken by the authorities in
the Higher Education Department that by the
judgment and order dated 23.09.2016 in WP(C)
No.5825/2012, the Act of 2011 was declared to
be ultra-vires. According to the learned
Standing Counsel for Higher Education
Department, it is the view of the Department
that as the Act had already been declared
ultra-vires, therefore, no further order for
provincialisation of the petitioner can be
effected by the Department.
12. It is taken note of that although by the
judgment and order dated 23.09.2016 in WP(C)
No.5825/2012, the Act of 2011 was declared to
be ultra-vires, but by a subsequent decision
dated 02.01.2017 in Review Petition No.
167/2016, it had been provided that the rights
of the employees, who have been benefited
under the struck down statute can be taken
care of by giving retrospective effect to the
proposed legislation, if the legislature so
decides and till then, the services of the
provincialised category and their status as
Government employees shall not be disturbed
and they will continue to receive all the
benefits which they are getting under the
Provincialisation Act of 2011.
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13. In the instant case, as already concluded
hereinabove, the petitioner being included
within the numbers specified in the Schedule
and there being no other impediment, his
service stood provincialised by operation of
law u/s 4(1) of the act of 2011. Therefore,
the case of the petitioner would also be
covered by the provision of paragraph-19 of
the decision of the Division Bench of this
Court dated 02.01.2017 in Review Petition No.
167/2017 and the benefits of provincialisation
that accrued to him by operation of law shall
remain.
14. In view of the above, as the service of the
petitioner stood provincialised u/s 4(1) of
the Act of 2011, the Court is of the view that
there is no requirement of any further
administrative order by the Department to
provincialise his service and all that is
required is to recognize that his service
already stood provincialised u/s 4(1) of the
Act of 2011 in the facts and circumstance of
the present case.
15. It is clarified that this order has been
passed upon an interpretation of the
provisions of Section 4(1) read with Section
10(4) and the Schedule to the Act of 2011 and
has been passed only upon the circumstance
that prior to the Act of 2011 being declared
ultra-vires, the authorities had already
arrived at a conclusion that the petitioner is
included within the number of posts under the
Schedule to the Act of 2011 and therefore, it
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being so, his service stood provincialised by
operation of law u/s 4(1) of the Act of 2011.
It is also provided that as even the
Government had accorded their approval to the
aspect that the petitioner came within the
number of posts provided in the Schedule
before the Act was declared ultra-vires, the
provisions of this order be not construed to
provide that provincialisation can still go on
under the Act of 2011 even in the absence of
the situation based upon which this order is
passed.
16. With the above observation, this writ petition
stands allowed and the petitioner be provided
with the benefits of provincialisation from
the date on which the Act of 2011 came into
force, which is 01.01.2013."
14.6. Another Co-ordinate Bench of this Court also in the decision
dated 22.01.2019, in WP(C) No. 3499/2014 (Sailendra Nath
Sarma vs. The State of Assam and 4 Others) has followed
the decision in the case of (Dilip Das vs. The State of Assam
and 2 Others), and held as under:-
“9. I have gone through the contents of
Section 3 and Section 4 of the Act of 2011 and
also gone through the contents of Section 24
of the Act of 2011. I have also gone through
the judgment passed in the Review Petition
No.167/2016 and the judgment dated 03.10.2018
of this Court passed in WP(C) 6804/2017.
Considering the facts and circumstances of the
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case of the petitioner in WP(C) 6804/2017 and
the case of the petitioner in this case, I
find that facts and circumstances of the two
cases are quite similar. Considering the
provisions of Section 4 of the Act of 2011 and
the judgment passed In Review Petition
NO.167/2016, I am in total agreement with the
judgment passed by the Coordinate Bench dated
03.10.2018 in the WP(C) 6804/2017. Therefore,
I am of the considered view that the
petitioner should be deemed to have been
provincialised on the day the other employees
were provincialised. Hence the writ petition
is allowed and the respondents are directed to
issue necessary orders within a period of 2
(two) months from the date of receipt of the
copy of this order.”
14.7. Thus, having gone through the provision of Section 4(1) of
the Act of 2011, and also having gone through the pleadings of the
parties and the submissions of their respective counsel, this Court
finds that the present petitioner is similarly situated with the
petitioners in and
W.P.(C) No. 3499/2014 W.P.(C) No.
6804/2017. And therefore, the present petitioner is entitled to
similar benefits like the petitioners in the said two writ petitions. The
service of the present petitioner is deemed to have been
provincialised on the day on which the other teachers of the school
were provincialised by operation of law, i.e. Section 4(1) of the Act
of 2011. Further from Annexure-A1 of the additional affidavit, filed
by the petitioner, indicates that the petitioner in
W.P.(C) No.
Page 24 of 26
has already been appointed by the respondent of the
3499/2014,
said petition. Mr. Mahmud, learned counsel for the petitioner has
also submitted that the petitioner in other writ petition, being
W.P.(C) No. 6804/2017, was also appointed by the state
respondent.
15. Though in the affidavit-in-opposition, the respondent No. 3
had taken a stand that a Coordinate Bench of this Court, in W.P.(C)
No. 5945/2021, vide order dated 09.01.2024, had directed to place
the case of the petitioner before the SLC for consideration towards
provincialisation of her service under the Act of 2017, yet nowhere
in the said order, dated 09.01.2024, this Court was pleased to direct
respondent authority to consider the case of the petitioner under
the Act of 2017. What was said in the aforesaid order was that vide
a communication dated 17.11.2018, the Government in Education
Department had directed the DEE to consider the case of the
petitioner as recommended by the SLC for provincialisation of her
service, under the Act of 2017. But, it was not the direction of the
Court. The Court had only referred to the letter, dated 17.11.2018,
issued by the Government in the Education Department, wherein
the DEE was directed to consider the case of the petitioner as
recommended by the SLSC for provincialisation, under the Act of
2017.
16. In the result, this Court finds sufficient merit in this petition
and accordingly, the same stands allowed. The impugned speaking
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order, so passed by the respondent No. 3, dated 01.10.2024, stands
set aside and quashed.
17. The respondent authorities, more particularly, the respondent
No.3, by a mandamus of this court, are directed to consider the
case of the petitioner under Section 4(1) of the Act of 2011 and if it
is found that the petitioner fulfills the requirement of Section 3 so as
to reap the benefits of Section 4(1) of the Act of 2011, then to issue
necessary order of provincialisation of service of the petitioner with
effect from the date from which the School was provincialied.
18. 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.
19. The petitioner shall obtain a certified copy of this order and
place the same before the respondent authorities within a period of
1 (one) week from today.
20. The parties have to bear their own costs.
JUDGE
Comparing Assistant
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