Disposed

Abdul Ali v. the State of Assam and 2 Ors.

Gauhati HC8 Feb 2021WP(C)/292/2021

Case brief

AI extract

What is this about?

The Gauhati High Court directed the Secondary Education Department to consider the petitioner's case for appointment to the vacant Junior Assistant post created by the retirement of Rina Begum, directing authorities to follow the 2018 Rules and consider relaxation under Rule 33 if warranted.

What did the court decide?

Directs respondents to consider petitioner's representation for appointment to vacant Junior Assistant post under 2018 Rules, with option for relaxation under Rule 33 if required, to be decided within

Abdul Ali Vs the State of Assam and 2 Ors. — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010002732021

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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)/292/2021

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ABDUL ALI S/O LATE ASMAN ALI RESIDENT OF VILLAGE BARKHETRI BARNI PO BATSOR, 781303, NALBARI, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 2 ORS

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION ( SECONDARY) DEPARTMENT, DISPUR GUWAHATI 6

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2:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI 781019

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3:INSPECTOR OF SCHOOLS

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NALBARI DISTRICT CIRCLE NALBARI ASSAM 78133

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Advocate for the Petitioner : MR. D S DEKA

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Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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08/02/2021

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Heard Mr. D Sen Deka, learned counsel for the petitioner and Mr. S M T Chistie, learned Standing counsel, Secondary Education Department for the respondent Nos. 1 to 3.

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It is stated that pursuant to a resolution No. 1 dated 22.04.1997 of the School Managing Committee of Batsor Barkhetri Barni Sursuri Bilaswar High School (in short, BBSB High School) a 2 (two) classes High School under 61 No. Dharmapur Legislative Assembly Constituency of Nalbari district, petitioner a matriculate (Class X pass) was appointed as a Lower Division Assistant in the said school. He accordingly joined his said service on 02.05.1997 as an Office Assistant (LDA) in that school. The said appointment of the petitioner was approved by the Inspector of Schools, Nalbari District Circle, Nalbari by an order under Memo No. GEN-6/1563-67 dated 10.09.2004. The Board of Secondary Education, Assam vide order dated 23.09.1998 granted its provisional recognition to said BBSB High School w.e.f. 01.01.1997. The said school was later considered for provincialisation under the provisions of the Assam Venture Educational Institution (Provincilisation of Service) Act, 2011. Pursuant to a Government letter No. ASE.86/2013/Pt-II/301 dated 25.07.2013, the Director of Secondary Education, Assam by its order under No. PC/CC/57/2013/113 dated 06.11.2013 provincialised the services of the teaching and non-teaching staff of said 2 (two) class BBSB High School, District-Nalbari w.e.f. 01.01.2013 under the provisions of the said 2011 Act amended in 2012 along with 1 (one) Junior Assistant, namely, Rina Begum. At the time of provincialisation of said BBSB High School on 06.11.2013, only 1 (one) post of Junior Assistant (LDA) was sanctioned in that school and therefore the service of the petitioner being the 2^nd Junior Assistant could not be provincialised.

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It is stated that in the meanwhile, said Rina Begum, Junior Assistant of the said school retired from service on 31.08.2020 on attaining the age of superannuation. Petitioner submitted his application before the Director of Secondary Education, Assam on 10.9.2020 with regard to adjustment of his service against the said vacant post of Mrs. Rina Begum, Junior Assistant (LDA) of said BBSB High School.

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The State Government in the Secondary Education Department has brought into force the Assam Secondary Education (Provincialised Schools) Service Rules, 2018, a statutory Rule under Article 309 of the Constitution of India w.e.f. 10.10.2019 (the date on which the said Rule was published in the Assam Gazette) regulating the recruitment and conditions of service of the teaching

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and non-teaching employees appointed to the Assam Secondary Education (Provincialised Schools) Service.

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As per the provision of Sub Rule (3) of Rule 1 of said 2018 Rules, said 2018 Rules is applicable to the employees appointed for teaching and non-teaching purpose in the Senior Secondary Schools, Higher Secondary Schools, Assam High Madrassa and High Schools that were provincialised under the Assam Secondary Education (Provincialisation) Act, 1977, Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, Assam Junior Colleges (Provincialisation) Act, 2012 and Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

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Rule 5 of said 2018 Rules prescribes the procedure of recruitment to the post of Junior Assistant, Library Assistant and selection. As per Rule 5 of said 2018 Rules, the vacant post of Junior Assistant/LDA in such provincialised Senior Secondary School/ Higher Secondary School/High School /High Madrassa is required to be made by direct recruitment on the basis of selection of the District Selection Committee as provided under Rule 16 of the said 2018 Rules. Since said BBSB High School, Nalbari has already been provincialised w.e.f. 01.01.2013 under the provisions of the said 2011 Act, the post of Junior Assistant that felt vacant due to retirement of the erstwhile Office Assistant, Rina Begum on 30.08.2020 needs to be filled up by following the said 2018 statutory recruitment Rules.

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Rule 33 of said 2018 Rules provides for Relaxation, which reads as follows:-

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“33. Where the Government is satisfied that operation of any of these rules leads to undue hardship in any particular case, it may, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary dealing with the case in a just and equitable manner:

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Provided that the case of any person shall not be dealt with any manner less favourable to him than provided in these rules.”

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The petitioner on 08.09.2020 through the Head Master of said BBSB High School submitted a representation before the Director of Secondary Education Assam praying to adjust his service in the vacant post of Junior Assistant (LDA) in that school. The Head Master of said BBSB High School forwarded the same to the Inspector of Schools, Nalbari who in turn, in pursuance to the Government Notification No. ASE-208/2019/954 dated 17.08.2020, by its communication No. IS/NDC (Provincialisation/Drop/1/2020/730) dated 08.09.2020 forwarded the said representation of the

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petitioner to the Director of Secondary Education, Assam stating that the same pertains to provincialisation of dropped Junior Assistant (LDA), a non-teaching staff of BBSB High School. The said application forwarded by the Inspector of Schools, Nalbari is presently pending before the Director of Secondary Education, Assam.

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After considering the entire aspects of the mater, this writ petition is disposed of directing the respondents in the Secondary Education Department, more particularly, the respondent Nos. 1, 2 and 3, the Commissioner & Secretary to the Govt. of Assam, Secondary Education Department, the Director of Secondary Education, Assam and the Inspector of Schools, Nalbari District Circle, Nalbari respectively to consider the case of the petitioner for his appointment to the vacant post of Junior Assistant (LDA) in said BBSB High School that felt vacant since 01.09.2020 due to retirement of the erstwhile regular Junior Assistant, Mrs. Rina Begum, in accordance with law, following the provisions of the said 2018 Rules and if so required in exercise of the power of the Rules as provided under Rule 33 of said 2018 Rules. However, it is made clear that such benefit shall be given to the petitioner, if only he is entitled to such relaxation as per the provisions of said 2018 Rules, otherwise the said vacant post of Junior Assistant (LDA) in said BBSB High School shall be filled up by following the provisions prescribed in Rule 5 of said 2018 Rules.

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Petitioner shall submit a fresh representation before the Commissioner & Secretary to the Govt. of Assam, Secondary Education Department as well as the Director of Secondary Education, Assam along with a certified copy of this order and a copy of this writ petition including the annexures appended thereto forthwith and shall obtain necessary acknowledgments from them in that regard.

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In the event of filing any such representation by the petitioner, the same shall be considered by the respondents authority within a period of 3 (three) months from the date of receipt of the said representation of the petitioner in accordance with law intimating him about the outcome of the said representation.

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With the aforesaid observation and direction, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Abdul Ali v. the State of Assam and 2 Ors.

Case brief

What is this about?

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Abdul Ali v. the State of Assam and 2 Ors.

Case brief

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