Allowed

Gerjaipam Adarsha High School and Anr. v. the State of Assam and Anr.

Gauhati HC7 Feb 2020WP(C)/781/2020

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition seeking provincialisation of services for employees of Gerjaipam Adarsha High School. Relying on a precedent regarding the Assam Venture Educational Institutions Act, 2011, held that services were deems provincialised per Section 4(1) as names were in the Schedule, though the Act was later declared ultra-vires.

What did the court decide?

Petition disposed with direction to respondent authorities to verify petitioner's inclusion in the Act's Schedule and grant benefit of provincialisation within 4 months without requiring fresh adminis

Gerjaipam Adarsha High School and Anr. Vs… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010019602020

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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) 781/2020

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1:GERJAIPAM ADARSHA HIGH SCHOOL AND ANR.

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TO BE REP. BY ITS HEAD MASTER RANJIT DAS, VILL. GERJAIPAM, P.O.GERJAIPAM, DIST. NAGAON, ASSAM.

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2: RANJIT DAS S/O- LT. RAMANI DAS R/O- VILL. AND P.O. GERJAIPAM P.S. KACHUA DIST.- NAGAON ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND ANR.

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TO BE REP. BY THE COMM. AND SECY., GOVT. OF ASSAM, EDUCATION SECONDARY DEPTT., DISPUR,GHY.-06.

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2:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GHY.-19

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Advocate for the Petitioner : MR A R BHUYAN Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HON’BLE MR.JUSTICE N. KOTISWAR SINGH order

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07-02-2020

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Heard Mr. A.R. Bhuyan, learned counsel for the petitioner. Also heard Mr. S.P.

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Bhattacharjee, learned Standing Counsel, Secondary Education Department.

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Mr. A.R. Bhuyan, learned counsel for the petitioner, submits before this Court that the matter is squarely covered by the decision of this Court rendered in WP(C) no.9306/2019, which was disposed of on 17.12.2019.

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Learned Standing Counsel for the Secondary Education Department has no objection to such consideration.

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Accordingly, the present petition is disposed of with a similar direction passed by this Court in the aforesaid writ petition, which reads as follows:

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“........

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The matter pertains to claim for provincialisation under the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 (hereinafter referred to as the Act of 2011).

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The case of the petitioners is that the case of petitioners was duly considered by the authorities and though their names were included for provincialisation in the Schedule for that purpose under the said Act, because of certain litigation initiated by a 3rd party, the process got stalled though they were otherwise eligible for provincialisation and in the meantime, the aforesaid Act was declared null and void. However, the said Act also has certain saving clauses for provincialisation of those, whose names have been already included in the Schedule of the Act.

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It is stated by the learned counsel for the petitioners that their names were already included in the schedule to the Act and as such by virtue of Section 4(1) of the 2011 Act, they shall be deemed to have been provincialised. It has been further submitted that this aspect had been already considered by this Court in WP(C) No.6804/2017 in respect of persons, whose names were included in the schedule of the 2011 Act for provincialisation and this Court had held that they shall be entitled to the benefit of provincialisation irrespective of the fact that the said Act had been declared null and void.

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This Court on 03.10.2018 had made the following observation in WP(C) No.6804/2017, which are extracted herein below:-

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“…..............................

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The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011) was enacted, which was notified on 05.09.2011. Section 4(1) of the Act of 2011 provides as under:-

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“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

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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.

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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.”

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Section 4(1) of the Act of 2011 provided that the services of the employees of all eligible venture educational institutions u/s 3 of the Act shall be deemed to have been provincialised on the date of coming into force of the Act and they shall become employees of the State Government with effect from that date. Section 3 of the Act of 2011 provided, amongst others, that the venture educational institutions, which were established and had obtained the required permission or recognition or affiliation or concurrence as the case maybe from the respective competent authority on or before 01.01.2006 and had a minimum enrolment of 25 students in the final year of the three years degree course, if it is a degree college, would be eligible for the provincialisation as provided in Section 4(1) of the Act of 2011. Section 3(2) of the Act of 2011 further provided that in case of a degree college, the eligibility criteria specified in sub-section1 would also have to be satisfied in respect of each of the subjects with or without major as the case may be. Section 3 provided for some further eligibility criteria, which the respective institutions must fulfill in order to avail the benefit of Section 4(1) of the Act.

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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, 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.

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….......................................

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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 betaken 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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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.

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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 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 ultravires, 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.”

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Accordingly, the present petition is disposed of directing the respondent authorities to grant the benefit of provincialisation of services of the petitioners after making necessary verification that the names of the petitioners had been included in the schedule to the Act in terms of Section 4(1) of the Act of 2011. The aforesaid exercise shall be undertaken by the authorities as expeditiously as possible preferably within a period of 4(months) from the date of receipt of a certified copy of this order.”

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In view of above, the present petition is also disposed of with a similar direction

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to the respondent authorities to provincialise the services of the employees of the

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petitioner no.1 i.e. the Gerjaipam Adarsha High School after making necessary verification that the names of the petitioner’s no.1 employees had been included in the schedule to the Act in terms of Section 4(1) of the Act of 2011. The aforesaid exercise shall be undertaken by the authorities as expeditiously as possible preferably within a period of 4 (months) from the date of receipt of a certified copy of this order.”

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JUDGE

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Comparing Assistant

Gerjaipam Adarsha High School and Anr. v. the State of Assam and Anr.

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Gerjaipam Adarsha High School and Anr. v. the State of Assam and Anr.

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