Partly allowed

The State of Assam and Anr. v. Sri Hiranya Kr Deka and Anr.

Gauhati HC9 Sept 2019Review.Pet./105/2017

Case brief

AI extract

What is this about?

Review petition challenging withdrawal of financial benefits from schools provincialised under the 2011 Act due to missing DISE codes. Court held DISE code is consequential, not core, requirement. Benefits to continue.

What did the court decide?

Education Department to continue providing financial benefits already provided to provincialised schools; order treated as precedent only for present petitions.

The State of Assam and Anr. Vs Sri Hiranya Kr Deka… — Education and Admissions | Gauhati HC (2019)

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Page No.# 1/10

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GAHC010133942017

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

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Case No. : Review.Pet. 102/2017

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1:THE STATE OF ASSAM and ANR

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REPRESENTED BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, EDUCATION ELEMENTARY DEPTT., DISPUR, GUWAHATI-781006

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2: THE DIRECTOR OF ELEMENTARY EDUCATION

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ASSAM KAHILIPARA GUWAHATI-1

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VERSUS

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1:LEKHAN LAHAN L.P. SCHOOL and 2 ORS

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LAKHIMPUR, REPRESENTED BY ITS HEADMASTER, SRI BIKUL BORAH, S/O LT. NANDESWAR BORAH, R/O DHENDUDHARIA, P.O. PANIGAON, DIST. LAKHIMPUR, ASSAM.

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2:THE DEPUTY COMMISSIONER LAKHIMPUR DIST. LAKHIMPUR ASSAM.

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3:THE MISSION DIRECTOR AXOM SARBA SIKSHA ABHIJAN MISSION KAHILIPARA GUWAHATI-1

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Advocate for the Petitioner : MR. N BORAH

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Advocate for the Respondent :

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Linked Case : Cont.Cas(C) 358/2015 1:BALIPARA SINGIDOLONI JANAJATI L.P. SCHOOL LAKHIMPUR REP. BY ITS HEADMASTER SRI KISHORE CHUNGKRANG S/O LT. TUMSING CHUNGKRANG R/O SINGIDOLONI P.O. BAGINADI DIST- LAKHIMPUR ASSAM VERSUS 1:UDHAB CH. DAS and ANR. THE DIRECTOR OF EDUCATION ELE DEPTT. ASSAM KAHILIPARA GHY-19 2:SRI SANJEEB KR. BHUYAN THE DIRECTOR OF EDUCATION ELEMENTARY DEPTT. ASSAM KAHILIPARA GHY.-19. Advocate for the Petitioner : MR.N BORAH Advocate for the Respondent : Linked Case : Cont.Cas(C) 369/2015 1:HIRANYA KR. DEKA HEADMASTER UTTAR KEKURIJAN KARBI LP SCHOOL S/O LT. KHYATIRAM DEKA R/O JUGIBARI P.O. TETUNBARI DIST- SONITPUR ASSAM VERSUS 1:UDHAB CH. DAS and ANR.

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THE DIRECTOR OF EDUCATION ELE DEPTT. ASSAM KAHILIPARA GHY-19 2:SRI SANJEEB KR. BHUYAN THE DIRECTOR OF EDUCATION ELEMENTARY DEPTT. ASSAM KAHILIPARA GHY.-19.

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Advocate for the Petitioner : MR.R GOGOI Advocate for the Respondent : MR.N SARMAR-2

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Linked Case : Cont.Cas(C) 366/2015

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1:NITYANANDA BORAH HEADMASTER BORAPATHAR L.P. SCHOOL S/O- LT. BONESWRAR BORAH R/O VILL.- PAHUKATA BORAPATHAR P.O.- MAJIKUCHI P.S.- GOHPUR SONITPUR ASSAM.

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VERSUS

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1:UDHAB CH. DAS and ANR. THE DIRECTOR OF EDUCATION ELEMENTARY DEPTT. ASSAM KAHILIPARA GHY- 19.

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2:SRI SANJEEB KR. BHUYAN DIRECTOR OF ELEMENTARY EDUCATION DEPTT. ASSAM KAHILIPARA GHY.-19.

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Advocate for the Petitioner : MR.N BORAH Advocate for the Respondent : MR.N SARMAR-2

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Linked Case : Cont.Cas(C) 357/2015 1:LEKHAN LAHAN L.P. SCHOOL LAKHIMPUR REP. BY ITS HEADMASTER SRI BIKUL BORAH S/O- LT. NANDESWAR BORAH R/O VILL.- DHENUDHARIA P.O.- PANIGAON DIST.- LAKHIMPUR ASSAM. VERSUS 1:UDHAB CH. DAS and ANR. THE DIRECTOR OF EDUCATION ELEMENTARY DEPTT. ASSAM KAHILIPARA GHY- 19. 2:SRI SANJEEB KR. BHUYAN THE DIRECTOR OF EDUCATION ELEMENTARY DEPTT. ASSAM KAHILIPARA GHY.-19. Advocate for the Petitioner : MR.D BORAH Advocate for the Respondent : MR.R MAZUMDARR-2

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Linked Case : Review.Pet. 105/2017

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1:SRI HIRANYA KR DEKA and ANR HEADMASTER UTTAR KEKURIJAN KARBI LP SCHOOL S/O LATE KHYATIRAM DEKA R/O VILL. JUGIBARI P.O. TETUNBARI DIST. SONITPUR ASSAM. 2:THE MISSION DIRECTOR AXOM SARBA SIKSHA ABHIJAN MISSION KAHILIPARA GUWAHATI-19 Advocate for the Petitioner : SC EDUCATION Advocate for the Respondent :

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Linked Case : Review.Pet. 106/2017

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1:THE STATE OF ASSAM and ANR REPRESENTED BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM EDUCATION ELEMENTARY DEPTT. DISPUR GUWAHATI-6 2: THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19 VERSUS 1:NITYANANDA BORAH and ANR HEADMASTER BORAPATHAR L.P. SCHOOL S/O LATE BONESWAR BORAH R/O PAHUKATA BORAPATHAR P.O. MAJIKUCHI P.S. GOHPUR DIST. SONITPUR ASSAM. 2:THE MISSION DIRECTOR AXOM SARBA SIKSHA ABHIJAN MISSION

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KAHILIPARA GUWAHATI-19 Advocate for the Petitioner : MR.A DEKA Advocate for the Respondent :

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Linked Case : Review.Pet. 95/2017

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1:THE STATE OF ASSAM and ANR

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM EDUCATION ELEMENTARY DEPTT. DISPUR GHY- 06 2: THE DIRECTOR OF ELEMENTARY EDUCATION

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ASSAM KAHILIPARA GUWAHATI -19. VERSUS 1:BALIPARA SINGIDOLONI JANAJATI L.P. SCHOOL and 2 ORS REP. BY ITS HEAD MASTER SRI KISHORE CHUNGKRANG S/O- LATE TUMSING CHUNGKRANG R/O- VILL- SINGIDOLONI P.O- BAGINADI DIST- LAKHIMPUR ASSAM

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2:THE DEPUTY COMMISSIONER LAKHIMPUR DIST. LAKHIMPUR ASSAM

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3:THE MISSION DIRECTOR AXOM SARBA SIKSHA ABHIJAN MISSION KAHILIPARA GUWAHATI -19

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Advocate for the Petitioner : MR.A DEKA Advocate for the Respondent :

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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JUDGMENT

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Date : 09-09-2019

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Heard Mr. R Mazumdar, learned counsel for the review petitioners. Also heard Mr. KN Choudhury, learned senior counsel for the respondents in the review petition.

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Without going into the details of the dispute that has arisen between the parties, we take note of certain core facts which would be relevant for an appropriate adjudication in the review petition.

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All the respondents’ school, as well as the contempt petitioners’ school did exist prior to the year 2009 and all of them were provincialised under Section 4 of the Assam Venture Educational Institutions( Provincialisation of Services) Act, 2011 ( in short ‘the Act of 2011’). But subsequent to such provincialisation, benefits that a provincialised school is entitled were stopped. With the aforesaid grievances, the respondents in the Education Department took the stand that the schools concerned did not have the DISE code which were required to be allotted as per rules and therefore, they could not have been provincialised and accordingly the financial benefits that they were provided was withdrawn.

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By the order, dated 25.02.2015, the said stand taken by the respondents in the writ petitions were found to be unacceptable and accordingly, the respondent No.2 being the Director of Elementary Education Department was directed to rectify the discrepancy in the DISE data in consultation with respondent No.7 i.e. the Mission Director of Axom Sarba Siksha Abhijan Mission.

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The present review petition had been preferred against the order, dated 25.02.2015. The other contempt petitions which are listed along with the review petition are for alleging a violation of the order, dated 25.02.2015.

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Accordingly, in this review petition, the question for determination would be as to whether the withdrawal of the financial benefits of being provincialised in respect of the schools concerned would be sustainable. In the review petition, the stand taken by the Education Department is that the DISE data basis maintained by the Axom Sarba Siksha Abhijan Mission did not contain the DISE Code of the schools and therefore, it is not a case of rectifying discrepancy and it is a case where the writ petitioners’ schools were not entitled to have been provincialised.

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For the purpose, Mr. R Mazumdar, learned counsel for the Education Department refers to the definition of the venture primary school as defined in Section 2 (s) of the Act of 2011 which provides that a venture primary school means a primary school imparting education upto class-5 and established by the people of the locality and prior to 01.01.2006 and captured in the District Information System for Education upto 2009-10. By referring to the venture primary school Mr. R Mazumdar stated that in the instant case, the schools had not made the appropriate application for being issued the DISE code and as such, they did not have the DISE code. Mr. Mazumdar further submits that the definition of venture primary school shows that capturing the name of the school in the DISE code upto 2009-2010 is a mandatory requirement and in the instant case, the mandatory requirement is absent due to laches on the part of the schools concerned and therefore, the authorities were right in withdrawing the financial benefits which was earlier offered to them on being provincialised.

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When we read the definition of venture primary school as defined in Section 2 (s) of the Act of 2011, we find that there are two requirements for a primary school to be classified as venture primary school. The first requirement is that the school be imparting education upto class-5 and be established by the people of the locality prior to 01.01.2006 and the

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other requirement is that its existence be captured by DISE code upto 2009-10.

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A prima facie reading of the definition of venture primary school would show that out of the two requirements, the requirement of the primary school imparting education upto ClassV and being established by the people of the locality prior to 01.01.2006 would be a core requirement for the purpose of provincialisation and the other requirement that the primary school be captured with the DISE code would be more of a consequential and procedural requirement to enable the authorities to further process of provincialisation. If the existence of the school prior to 01.01.2006 is an admitted position of the Education Department, we are of the view that non-existence of the procedural and consequential requirement of the schools concerned being provided with the DISE code cannot itself be a reason to deprive the schools from being considered as venture primary schools. It is also an admitted position that the schools concerned not only existed prior to 01.01.2006, but also continuously continued to exist and function all along till date. No doubt, there may be laches on the part of the schools in not making appropriate application but in our view as because of its continued existence till date since prior to 01.01.2006, it would have to be considered to be a curable defect rather than incurable defect because of which the schools concerned would remain deprived from being provincialised forever although it otherwise satisfies the core requirement of being provincialised i.e. the existence of the school prior to 01.01.2006.

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In the circumstances, we are of the view that no interference is required to be made to the order, dated 25.02.2015 in the Writ Petition (C ) No. 388 of 2015. But however, we provide that the benefits of the said order shall be confined to the present petitions wherein orders have already been passed and the observations made herein be confined to the present proceeding only and more so, in view of the fact that the schools concerned had already been provincialised. Accordingly, it is provided that the Education Department would continue with the benefits that were already provided to the schools upon being provincialised under the Act of 2011. It is further provided that this order passed in this case will not be treated as precedent for other cases.

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This order shall also cover the contempt petitions and the authorities in the Education Department shall do the needful in respect of the contempt petitioners also. By providing so, the contempt petitions also stands closed on the undertaking that the requirement as indicated above be also done in respect of the contempt petitioners also. The requirement be done within a period of 4(four) months

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JUDGE

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Comparing Assistant

The State of Assam and Anr. v. Sri Hiranya Kr Deka and Anr.

Case brief

What is this about?

What did the court decide?

The State of Assam and Anr. v. Sri Hiranya Kr Deka and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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