Disposed

Bishnu Deka v. Chittaranjan Sarmah and 11 Ors.

Gauhati HC8 Jan 2018I.A./1293/2015

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the provincialization of services disregarding petitioner's seniority. Relying on precedents declaring the 2011 Act ultra vires and directing the setting up of Education Tribunals, the Court directed the petitioner to approach the Tribunal for seniority disputes.

What did the court decide?

Petition disposed; petitioner directed to approach the appropriate Education Tribunal for redressal of grievances regarding seniority and provincialization.

Bishnu Deka Vs Chittaranjan Sarmah and 11 Ors. — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010008562013

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3837/2013

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CHITTARANJAN SARMAH S/O LT. GAJENDRA NATH SARMAH ASSISTANT TEACHER, SONAPANI SARVAJANIN L.P. SCHOOL, VILL and P.O. SONAPANI DIST. UDALGURI BTAD,A SSAM PERMANENT ARESIDENT OF VILLANADHOWAPARA P.O. PANERI P.S. PANERI DIST. UDALGURI, BTAD, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 11 ORS REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM, EDUCATION ELEMENTARY DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE DIRECTOR OF ELEMENTARY EDUCATION

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3:THE BODOLAND TERRITORIAL COUNCIL

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4:THE SECRETARY EDUCATION

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5:THE DIRECTOR OF EDUCATION

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6:THE DISTRICT ELEMENTARY EDUCATION OFFICER

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7:THE DEPUTY INSPECTOR OF SCHOOLS

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8:THE BLOCK ELEMENTARY EDUCATION OFFICER

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9:THE MANAGING COMMITTEE

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10:THE HEADMASTER

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11:SRI BISHNU DEKA

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12:THE DISTRICT SCRUTINY COMMITTE

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Advocate for the Petitioner : MSR D KAKATI

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Advocate for the Respondent : SC, BTC

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Linked Case : I.A./1293/2015

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BISHNU DEKA Address:

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VERSUS

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CHITTARANJAN SARMAH and 11 ORS Address:

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Advocate for : MR.R SARMA Advocate for : MR.S K SINGHA appearing for CHITTARANJAN SARMAH and 11 ORS: Advocate appearing for respectively.

ORDER

Date : 08-01-2018

BEFORE

HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

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Heard Mr. P Sarmah, learned counsel for the petitioner. Also heard Mr. A Deka,

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learned Standing counsel, Education Department for the respondent Nos. 1 and 2, Ms. B

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Bhuyan, learned Standing counsel, BTC for the respondent Nos. 3 to 8, Mrs. R S Deuri, learned counsel for the respondent Nos. 9 & 10, Mr. R Sarma, learned counsel for the private respondent No. 11 and Mr. S Tai, learned Government advocate for the respondent No. 12.

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The petitioner herein is aggrieved with the decision of the respondents in the Elementary Education Department to provincialize the service of the respondent No. 11 as the 2^nd Assistant Teacher in Sonapani Sarbajanin Lower Primary School, Nizsonapani, Paneri in the Udalguri Education Block of Udalguri District in terms of the provisions of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended disregarding his seniority over the respondent No. 11. To that extent, the petitioner has also annexed the certificate issued by the School Managing Committee, the school authority as well as the Inspection reports of the school in question.

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This Court while issuing notice to the respondents by order dated 16.07.2013, in the interim observed that the provincialization benefit should not be granted to the respondent No. 11, i.e., Bishnu Deka as an Assistant Teacher of said Sonapani Sarbajanin Lower Primary School, Nizsonapani, as the authorities took such decision to provincialise the service of the said respondent No. 11 disregarding the claim of the present petitioner, namely, Sri Chittaranjan Sarmah.

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During the pendency of this writ petition, the Division Bench of this Court in the case of Chandan Kumar Neog Vs. State of Assam and Ors. by its order dated 23.09.2016 passed in WP(C) No.3190/2012 have held the said 2011 Act as ultra vires. In the meanwhile, a Full Bench of this Court in the case of Abdul Gaffur Mondal Vs. State of Assam and Others reported in 2014 (2) GLT 223 have also observed that with regard to any such dispute pertaining to seniority, suspension, termination etc. of the teaching and non-teaching staff of such Venture Educational Institutions under the Assam Non-Government Educational Institutions (Regulation and Management) Act, 2006 and the Assam Non-Government Education Institutions (Regulation and Management) Rules, 2007, the Writ Court is not the proper Court to decide such issues and directed the State Government in the Education Department to constitute Education Tribunals in the Districts of the State to decide such issues.

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Accordingly, the State Government in the Education Department vide its Notification dated 02.06.2016 constituted Education Tribunal in each of the Districts of the State presided

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by the concerned District Judge and/or Additional District Judge. Further, after the said 2011 Act being declared as ultra vires, the State Government in the Education Department have also brought into the force a new Act, namely, the Assam Education (Provincialization of Services of Teachers and Re-organization of Educational Institutions), Act 2017 for provincialisation of service of such teaching and non-teaching staff of Venture Education Institutions constituted under the aforesaid 2006 Act and 2007 Rules.

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In that view of the matter, this writ petition stands disposed of with a direction that the petitioner shall approach the appropriate Education Tribunal for redressal of his grievance.

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In the event of any such approach by the petitioner, the concerned Education Tribunal after giving an opportunity of hearing to both the petitioner as well as the present respondent No. 11 and on perusal of the original records pertaining to the appointment of both the petitioner and the respondent No. 11 in the school in question by the Managing Committee of said school, the Attendance Register etc. shall pass appropriate order regarding the seniority between them and thereafter, the respondents both in the BTC as well as the Director of Elementary Education, Assam shall decide regarding provincialization of service of either of the petitioner or the respondent No. 11 in accordance to their seniority to be decided by the concerned Tribunal.

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With the aforesaid observations and directions, this writ petition stands disposed of.

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The interim order passed earlier by this Court on 16.07.2013 stands merged with this order.

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Sd/- JUDGE

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Comparing Assistant

Bishnu Deka v. Chittaranjan Sarmah and 11 Ors.

Case brief

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Bishnu Deka v. Chittaranjan Sarmah and 11 Ors.

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