Disposed

Md. Abul Hasen v. the State of Assam and 4 Ors.

Gauhati HC17 Dec 2021WP(C)/3650/2021

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition regarding the provincialisation of a teacher's service. The Court declined to decide the inter se dispute between respondents and directed the petitioner to file a representation with the Director of Elementary Education for a departmental review.

What did the court decide?

Permitted petitioner to submit representation to Director of Elementary Education within 10 days; writ and interlocutory application disposed.

Md. Abul Hasen Vs the State of Assam and 4… — Pension and Retirement Benefits | Gauhati HC (2021)

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Page No.# 1/7

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GAHC010172472021

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

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Case No. : I.A.(Civil)/1881/2021

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MD. SAFIUL HOQUE ASSISTANT TEACHER, KESHARVITA ME MADRASSA, PO JHOWDANGA, DIST DHUBRI, ASSAM

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VERSUS

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HE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT , DISPUR, GHY -06.

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2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM

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KAHILIPARA GUWAHATI 781019

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3:THE DISTRICT SCRUTINY COMMITTEE (DSC) REPRESENTED BY THE DISTRICT ELEMENTARY EDUCATION OFFICER CUM MEMBER SECRETARY OF DISTRICT SCRUTINY COMMITTEE OF PROVINCIALIZATION DHUBRI

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4:MD. ABDUL AKHER ALI HEADMASTER KESHARVITA ME MADRASSA PO JHOWDANGA DIST DHUBRI ASSAM

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5:MD. ABUL HASEN

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S/O-LATE TURAB ALI VILL-KESHARVITA

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Page No.# 2/7

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P.O.-JHOWDANGA DIST- DHUBRI ASSAM. PIN-783131

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Advocate for the Petitioner : MR. M KHAN

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Advocate for the Respondent : SC, ELEM. EDU

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Linked Case : WP(C)/3650/2021

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MD. ABUL HASEN S/O LATE TURAB ALI VILLAGE KESHARVITA PO JHOWDANGA PS MANKACHAR DIST DHUBRI

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VERSUS THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT DISPUR GUWAHATI 781006 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 781019 3:THE DISTRICT SCRUTINY COMMITTEE (DSC) REPRESENTED BY THE DISTRICT ELEMENTARY EDUCATION OFFICER CUM MEMBER SECRETARY OF DISTRICT SCRUTINY COMMITTEE OF PROVINCIALIZATION DHUBRI 4:MD. ABDUL AKHER ALI HEADMASTER KESHARVITA ME MADRASSA PO JHOWDANGA DIST DHUBRI ASSAM 5:MD. SAFIUL HOQUE ASSISTANT TEACHER

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Page No.# 3/7

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KESHARVITA ME MADRASSA PO JHOWDANGA DIST DHUBRI ASSAM

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-----------Advocate for : MR. S K TALUKDAR Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 4 ORS.

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 17-12-2021

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Heard Mr. S.K. Talukdar, learned counsel for the petitioner. Also heard Mr. P.K. Borah, learned standing counsel for the Elementary Education Department representing respondent nos. 1 to 3, Mr. R. Islam, learned counsel for respondent no. 4 and Mr. M. Khan, learned counsel for respondent no. 5.

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The respondent no. 5 is the applicant in the interlocutory application, which has been filed under Article 226(3) of the Constitution of India for modification/altering/varying the interim directions contained in the order dated 13.08.2021, passed in the writ petition.

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At the outset, it would be pertinent to mention that the learned counsel for the appearing parties are ad idem on the point that it would meet the ends of justice if the inter se dispute that has arisen amongst Md. Abul Hasen (petitioner), Md. Abdul Akher Ali (respondent no. 4) and Md. Safiul Hoque (respondent no. 5) upon provincialisation of the service of the respondent no. 5 as Language Teacher in Kesharvita ME School.

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Page No.# 4/7

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In view of the aforesaid stand of all the appearing parties, the Court has refrained from rendering any opinion as no affidavit-in-opposition has been filed by any of the respondents. Therefore, the documents filed by the petitioner and the respondent no. 5 in the interlocutory application has been made only with the purpose of examining if the matter is required to be departmentally examined by the authorities of the Elementary Education Department.

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On a perusal of the documents filed with the writ petition, prima facie, it appears that Md. Abdul Akher Ali (respondent no. 4) is a Language Teacher appointed in the year 1993, the respondent Md. Safiul Hoque (respondent no. 5) is also a Language Teacher appointed in the year 2002. That as per Section 3(1)(xi) of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (hereinafter referred to as the “2017 Act”) provides for provincialisation of one Language Teacher along with one Social Science Teacher and one Mathematics/ Science Teacher. Therefore, as Md. Abdul Hasen (petitioner) is a Social Science Teacher appointed in the year 1998, the petitioner has been able to demonstrate a good prima facie case for requiring the Director of Elementary Education to revisit and re-consider the claim of Md. Abdul Hasen (petitioner) for provincialisation of his service as Social Science Teacher in Kesharvita ME School. The claim of the petitioner as Social Science Teacher is not disputed in the interlocutory application filed by the respondent no. 5.

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However, by filing the interlocutory application, the respondent

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Page No.# 5/7

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no. 5 claims that Md. Abdul Akher Ali (respondent no. 4), who was the Headmaster of the said Kesharvita ME School had submitted the proposal for provincialisation of services of teachers of the said school under the 2017 Act in the prescribed format before the District Scrutiny Committee. It is claimed that in the said proposal, the name of the respondent no. 4 appears as serial no. 1 and that his date of joining was shown as 12.03.2002 and the subject taught is shown as English, and it is further stated that in the said proposal, the name of the respondent no. 5 has been shown at serial no. 2 as Assistant Teacher with date of joining as 14.01.1993 and subject taught is shown as Assamese. It is claimed by the respondent no. 5 that the position of the petitioner, respondent no. 4 and respondent no. 5 is captured in the D.I.S.E. (i.e. District Information System of Education) data. Accordingly, it is claimed by the respondent no. 5 that he has a better claim than the respondent no. 4 for having his service provincialised.

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Per contra, the learned counsel for the respondent no. 4 has submitted that as per instructions received by him, the respondent no. 5 had resigned from service on 08.10.1997 and that he was re-appointed on 09.03.2012. Accordingly, it is submitted that as per the requirement of the 2017 Act, the service of only those teachers could be provincialised, whose named appeared in the DISE data continuously since year 2010-11. Accordingly, it is claimed that the respondent no. 4 had a better claim for provincialisation of his service.

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It has been submitted by the learned standing counsel for the Elementary Education Department that the dispute of such nature where highly

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Page No.# 6/7

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disputed questions of facts arise, the matter can either be revisited by the Director of Elementary Education, Assam (respondent no.2), or the parties may be relegated to approach the appellate forum as provided under Section 14 read with Section 19 of the 2017 Act.

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Having regard to the stand of the learned counsel for the appearing parties, and upon the perusal of the materials available on record, the Court is of the considered opinion that in a writ petition filed by the petitioner, the Court would refrain from deciding inter se dispute between the respondent no. 4 and 5. Therefore, in light of the fact that the position of the petitioner is neither disputed at the Bar nor by filing any affidavit-in-opposition against the writ petition, this appears to be a fit and proper case to relegate the parties herein to approach the Director of Elementary Education, Assam (respondent no.2), who is the competent authority to revisit the entire matter.

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Accordingly, this writ petition is disposed of by permitting the petitioner to submit his representation before the Director of Elementary Education, Assam (respondent no.2) together with a certified copy of this order and a copy of this writ petition with all enclosures within a period of 10 (ten) days from the date of the order. Upon receipt of the same, the respondent no. 2 shall dispose of the said representation within a period of 2 (two) months from the date of presentation of such representation before his office.

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It would also be open for the respondent nos. 4 and 5 herein to also approach the Director of Elementary Education, Assam (respondent no.2)

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Page No.# 7/7

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by filing their separate representations accompanied by a certified copy of this order together with any document on which they rely upon. It is clarified that no final opinion has been expressed by this Court as such the respondent no. 2 shall decide the matter without being influenced by any observations made herein.

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As the respondent nos. 4 and 5 are represented before this Court, the respondent no. 2 need not send any notice upon the said respondent nos. 4 and 5, but the said authority shall wait till the expiry of 10 (ten) days from the date of this order and proceed to decide the claim of the petitioner. Therefore, the respondent nos. 4 and 5 may be well advised to appear before the respondent no. 2 well within a period of 10 (ten) days from the date of the order.

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This writ petition as well as the interlocutory application filed by the respondent no. 5 are both disposed of on terms as indicated herein above.

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JUDGE

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Comparing Assistant

Md. Abul Hasen v. the State of Assam and 4 Ors.

Case brief

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Md. Abul Hasen v. the State of Assam and 4 Ors.

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