Allowed

Firoj Alam Laskar v. the State of Assam and 4 Ors.

Gauhati HC13 Dec 2021WP(C)/3571/2020

Case brief

AI extract

What is this about?

The Gauhati High Court, in a writ petition regarding the provincialisation of services at Silchar Senior Madrassa, directed the respondent Government departments to complete the examination of the petitioner's claim and that of similarly situated teaching staff within two months, acting in accordance with law.

What did the court decide?

Respondents directed to examine the petitioner's claim and that of similarly situated staff regarding provincialisation of services and complete the exercise within two months.

Firoj Alam Laskar Vs the State of Assam and… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010119612020

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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)/3571/2020

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FIROJ ALAM LASKAR

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S/O- MD. MOIN UDDIN LASKAR, R/O- VILL- RAMNAGAR PECHADAHARR PART-IV, P.S. SILCHAR SADAR, DIST.- CACHAR, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, SECONDARY EDUCATION DEPTT., DISPUR, GHY-6

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2:THE JOINT SECY. TO THE GOVT. OF ASSAM SECONDARY EDUCATION DEPTT. DISPUR GHY-6

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3:THE DIRECTOR SECONDARY EDUCATION ASSAM KAHILIPARA GHY-6

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4:THE DY. COMMISSIONER CACHAR P.O. AND P.S. SILCHAR DIST.- CACHAR ASSAM PIN- 788001

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5:THE INSPECTOR OF SCHOOLS CACHAR DISTRICT CIRCLE P.O. AND P.S. SILCHAR DIST.- CACHAR

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ASSAM PIN- 78800

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Advocate for the Petitioner : MR. M H LASKAR

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Advocate for the Respondent : SC, SEC. EDU.

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 13-12-2021

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Heard Mr. M.H. Laskar, learned counsel for the petitioner as well as Mr. R. Mazumder, learned Standing counsel for the Secondary Education Department and Mr. G. Pegu, learned Government Advocate appearing for the respondent no.4.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of the impugned letter dated 26.10.2018 issued by the respondent no.2 to the respondent no.4 to complete the process of verification afresh for provincialisation of Silchar Senior Madrassa so as to expedite the scrutiny of teaching and non-teaching employees of the said Madrassa and for a direction upon the respondent nos. 1 and 2 to consider the matter of provincialisation of the said Madrassa. As per Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 which was in force at the time of passing of judgment dated 26.08.2016 in WP(C) 490/2013 and to issue the provincialisation order forthwith.

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The case projected by the petitioner is that on 26.12.2012, the District Level Scrutiny Committee had submitted its report to the then Director of Madrassa Education thereby recommending Silchar Senior Madrassa for provincialisation. Accordingly, on 27.12.2013, the then Director of Madrassa Education had issued the order of provincialisation of the said Madrassa under the 2011 Act in force.

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The In charge Superintendent of said Madrassa had sent a staff pattern vide communication dated 29.06.2012 to the respondent no.3 herein and as the name of the certain persons were found to be excluded being aggrieved, those affected persons had filed WP(C) 490/2013, praying for setting aside the communication of staff pattern dated 29.06.2012 and for setting aside the appointment made to the private respondent nos.8 to 12 in the said writ petition.

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The said writ petition was disposed of by order dated 26.08.2016, thereby remanding the matter relating to provincialisation of the said Madrassa to the Government in the Education Department for examination afresh in accordance with law, holding the provincialisation order dated 27.12.2013 of having no legal consequence, and the said authorities were directed to complete the process within a period of 4(four) months from the date of certified copy of the order and it was also provided that the aggrieved persons would be at liberty to approach the competent Educational Tribunal for redressal of grievances.

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Accordingly, on 15.09.2016, the petitioner had submitted a representation before the respondent no.1 and as the exercise as was directed by this Court vide order dated 26.08.2016 has not been complied with, a contempt petition being Cont. Cas (C) 379/2017 was filed. During the pendency of the said petition, the State had enacted the Assam Madrassa Education (Provincialisation of Services of Employees and Re-organization of Madrassa Educational Institutions) Act, 2018 and the said Act was notified on 16.05.2018. It is projected that despite the order passed in the said writ petition, the respondent no.2 had issued an impugned letter directing the respondent no.4 to complete the verification process of the said Madrassa and accordingly, the present writ petition is filed before the Court to challenge the communication dated 26.10.2018.

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The State in the Education Department has not filed their response. However, the learned Standing counsel for the Secondary Education Department has submitted that pursuant to a challenge made to the Assam High Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 the said Act had been declared ultra vires and unconstitutional vide judgment and order dated 23.09.2016 passed in WP(C) 3190/2012 in Chandan Kr. Neog Vs. State of Assam and ors.

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Thereafter, as indicated above, the 2018 Act was notified on 16.05.2018. It is also submitted that in the meanwhile the 2018 Act that was notified on 16.05.2018 has also been repealed and by enacting the Assam Repealing Act, 2020 (Assam Act No.X of 2021) which has received assent from the Governor on 27.01.2021 and published in the Assam Gazette on 30.01.2021

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and as a result of such repeal, the Madrassa covered by the definition of Venture Educational Institutions now comes within the meaning of The Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017.

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As per the projection made by the learned counsel for the petitioner and the stand taken by the learned Standing counsel for the Secondary Education Department, it is observed that till date the order dated 26.08.2016 passed by this Court in WP(C) 490/2013 has not been complied with in terms of directions contained in para-39, the said para-39 is extracted below –

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In view of above, matter of provincialisation of Silchar Senior Madrassa is remanded back to the Government in the Education Department for examination afresh in accordance with law and having regard to the discussions made above since the provincialisation order dated 27.12.2013 has been held to be of no legal

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consequence. This exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order. If after fresh exercise any party is aggrieved, the aggrieved party would be at liberty to approach the competent Educational Tribunal for redressal of his/her grievance in terms of the Full Bench judgment of this Court in Abdul Gafur Mondal Vs. State of Assam,

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2015 (2) GLT 337.”

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It is also seen that due to non-examination of the matter relating to provincialisation of Silchar Senior Madrassa, no occasion has arisen for any of the party to be aggrieved for approaching the Educational Tribunal in terms of the said judgment. Accordingly, having noted that the petitioner claims to have joined service on 23.12.2010 pursuant to appointment order dated 21.12.2010 and claims to have been discharging his duties without any break. It is claimed

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in the writ petition that the service of the petitioner is yet to be provincialized.

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The Court is of the considered opinion that i.e the respondent nos.1 and 2 be directed to undertake the exercise as directed by this Court in para-39 of the judgment and order dated 26.08.2016 passed in the WP(C) 490/2013 by examining the claim of the petitioner and other similarly situated teaching staff of the said Silchar Senior Madrassa. The respondent nos.1 and 2 are free to take assistance of the District Level Scrutiny Committee to complete the exercise. The respondent nos.1 and 2 are directed to complete the said exercise within an outer period of 2(two) months from the date of receipt of the certified copy of the order to the office of the respondent no.1 and shall act in accordance with law.

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JUDGE

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Firoj Alam Laskar v. the State of Assam and 4 Ors.

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Firoj Alam Laskar v. the State of Assam and 4 Ors.

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