Disposed

Rafi Ahmed Mazumder v. the State of Assam and 7 Ors.

Gauhati HC10 Nov 2022WP(C)/1330/2021

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition challenging the exclusion of a petitioner teacher from provincialisation while other staff were included. Directing the petitioner to file a statutory appeal under the 2017 Act, the court suspended cliff opponents' provincialisation pending that appeal, citing the Supreme Court on statutory forum jurisdiction.

What did the court decide?

Petitioner directed to prefer statutory appeal; order of provincialisation for opponent teachers suspended till appeal disposed; interim order merged.

Rafi Ahmed Mazumder Vs the State of Assam and 7 Ors. — Service and Employment | Gauhati HC (2022)

¶1

Page No.# 1/6

¶2

GAHC010090842021

¶3

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

¶4

Case No. : WP(C)/1330/2021

¶5

RAFI AHMED MAZUMDER S/O- FURKAN ALI MAZUMDER R/O- WARD NO. 11 HAILAKANDI TOWN P.O.- R.P. ROAD P.S. HAILAKANDI DIST.- HAILAKANDI ASSAM

¶6

VERSUS

¶7

THE STATE OF ASSAM AND 7 ORS REP. BY ITS COMM. AND SECY. ELEMENTARY EDUCATION DEPTT. GOVT. OF ASSAM DISPUR GHY-6

¶8

2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19 3:STATE LEVEL SCRUTINY COMMITTEE REP. BY ITS CHAIRMAN CUM DIRECTOR ELEMENTARY EDUCATION KAHILIPARA GHY-19 4:DISTRICT SCRUTINY COMMITTEE FOR ELEMENTARY EDUCATION HAILAKANDI REP. BY ITS CHAIRMAN CUM DY. COMMISSIONER HAILAKANDI ASSAM

¶9

Page No.# 2/6

¶10

5:THE DISTRICT ELEMENTARY EDUCATION OFFICER HAILAKANDI DIST.- HAILAKANDI ASSAM 6:BLOCK ELEMENTARY EDUCATION OFFICER HAILAKANDI 7:KHADIZA BEGUM MAZUMDER HEAD MASTER ARZOD ALI MEMORIAL MEM VILL- DOLIDHAR GRANT P.O. JANKIBAZAR DIST.- HAILAKANDI ASSAM PIN- 788150 8:MD. NIZAM UDDIN MAZUMDER ASSISTANT TEACHER ARZOD ALI MEMORIAL MEM S/O LATE SAMSUL HAQUE MAZUMDER R/O VILL. SAYEDBOND PART II P.O. ALGAPUR DIST. HAILAKANDI ASSAM PIN- 788150. -----------Advocate for : MR E AHMED Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 7 ORS

¶11

BEFORE

¶12

HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

¶13

10/11/2022

¶14

Heard Mr. E Ahmed, learned counsel for the petitioner and Mr. P K Bora, learned Standing counsel, Department of School (Elementary) Education for the respondent Nos. 1, 2, 5 & 6. Also heard Mr. G Bokalial, learned Government Advocate, Assam for the respondent Nos. 3 & 4 and Mr. M J Quadir, learned counsel for the respondent Nos. 7 & 8 vis-à-vis the respondent Nos. 7 & 8.

¶15

2. For proper adjudication of this case, the Finance Commissioner to the Govt. of Assam represented by its Commissioner & Secretary be impleaded as party respondent No. 9.

¶16

Page No.# 3/6

¶17

3. Mr. A Chaliha, learned Standing counsel, Finance Department has entered appearance on behalf of the newly impleaded respondent No. 9.

¶18

4. Matter pertains to provincialisation of the services of the petitioner vis-à-vis the respondent Nos. 7 & 8 under the provisions of the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 as amended.

¶19

5. Petitioner and the respondent Nos. 7 & 8 were appointed as Teachers in Arzod Ali Memorial M.E. Madrassa in Hailakandi Education Block of District-Hailakandi by its School Managing Committee during its venture stage.

¶20

6 . The petitioner, a Higher Secondary (FM) passed candidate joined the said M.E. Madrassa on 04.08.2004, whereas the respondent No. 7, a Graduate in Arts joined the said Madrassa on 04.04.1993 and the respondent No. 8, a Higher Secondary passed joined the said Madrassa on 03.05.1995.

¶21

7. The names of the petitioner along with the other teaching staff of the said M.E. Madrassa were forwarded for consideration for provincialisation of their services under the provisions of said 2017 Act as amended and in the list recommended for provincialisation by the District Scrutiny Committee (Elementary), Hailakandi, the name of the petitioner was placed as not eligible for provincialisation recommending the name of the respondent Nos. 7 & 8 along with the Science Teacher of the said Madrassa.

¶22

8. Petitioner stated that both the respondent Nos. 7 & 8 are Language Teachers of said Madrassa. Relying on the provisions of Section 3(1)(xi) of the said 2017 Act, the petitioner stated that for the purpose of provincialisation of a Venture Upper Primary School, like the M.E. Madrassa involved in the case, there is a requirement of provincialisation of minimum three teachers or tutors, one teacher each for the subjects of (a) Science and Mathematics (b) Social Studies and (c) Languages.

¶23

9. Petitioner stated that as per the provisions of the Right of Children to Free and Compulsory Education Act, 2009, there is a requirement of the Head Teacher in case of a Lower Primary School where admission of children is above 150 and in case of an Upper Primary School/M.E. Madrassa where admission of children is above 100. Petitioner, therefore, stated that considering the number of enrolment of students in the said Madrassa being 31 only, there is no requirement for provincialisation of a Head Teacher in the said M.E. Madrassa, i.e., the respondent No. 7, who is also a Language

¶24

Page No.# 4/6

¶25

Teacher of said Madrassa whereas the petitioner is the Social Studies Teacher of the said Madrassa.

¶26

10. Petitioner has annexed the copy of the DISE Status of the said M.E. Madrassa from the year 2014-2015 to 2019-2020 as Annexure-1 that contains his name. Petitioner has also annexed the copy of the report of the District Scrutiny Committee where the respondent No. 7 was shown as the Headmistress of the said Madrassa and the subject she used to teach is English and the respondent No. 8 an Assistant Teacher of said Madrassa and teaches Bengali to its students, who were found eligible for provincialisation under the provisions of said 2017 Act. But in the said report, the name of the petitioner figured as not eligible for provincialisation due to non-availability of required enrollment, showing him to be an Assistant Teacher of said Madrassa teaching Social Science to its students.

¶27

11. As the Court prima-facie found that both the private respondent Nos. 7 & 8 are Language Teachers of the said Madrassa, whereas the petitioner is a Social Studies Teacher of the said M.E. Madrassa. While issuing notice to the respondents, the Court by order dated 01.03.2021 considering the provisions of Section 3(1)(xi) of the said 2017 Act, stayed the provincialisation of the respondent Nos. 7 & 8 until further order which is still in force.

¶28

12. Being aggrieved, the respondent Nos. 7 & 8 filed the connected interlocutory application being I.A.(C) No. 1232/2021 for modification/alteration/ vacation of the exparte ad interim order dated 01.03.2021 which is pending for adjudication. The respondent Nos. 7 & 8 placed before the Court that by orders dated 05.02.2021, the Director of Elementary Education, Assam provincialised their services under the said 2017 Act as amended as Tutors placing both of them at Janaki Bazar M.E. School under Hailakandi Education Block of District-Hailakandi.

¶29

13. It is noticed that both the respondent Nos. 7 & 8 are senior in service to the petitioner in said M.E. Madrassa and both of them taught Language, i.e., English and Bengali, respectively, to the students of the said Madrassa. It is Section 3 (1)(xi) of 2017 Act that provides the eligibility criteria for provincialisation of services of teaching staff of a venture upper primary school, which reads as follows –

¶30

Section 3(1)(xi):-

¶31

In case of Venture Upper Primary School, there shall be minimum three teachers or tutors at least one teacher each for (a) Science and Mathematics (b) Social Studies and (c) Languages:

¶32

Provided that for additional posts it shall be considered in accordance with the

¶33

Page No.# 5/6

¶34

norms and standard stipulated in the Schedule under Sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009 (Central Act No. 35 of 2009).

¶35

14. Section 14 of the said 2017 Act relates to “Appellate Authority” which reads as follows:“Appellate Authority:-

¶36

The State Level Scrutiny Committee shall be the appellate authority against any recommendation of the District Scrutiny Committee and the State Government in the concerned administrative department shall be the Appellate Authority against any recommendation of the State Level Scrutiny Committee.”

¶37

15. The Hon’ble Supreme Court in the case of Commissioner of Income Tax and Another -VsChhabil Dass Agarwal reported in (2014) 1 SCC 603 held that “when a statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring said statutory provision”.

¶38

16. After hearing the learned counsels for the parties and considering the entire aspects of the matter as well as taking into account that it is the District Scrutiny Committee (Elementary), Hailakandi that did not recommend the petitioner for provincialisation of his service, therefore, he, i.e., the petitioner is directed to prefer a statutory appeal before the Director of Elementary Education, Assam being the Chairman of the State Level Scrutiny Committee as provided under Section 14 of said 2017 Act forthwith along with a certified copy of this order and a copy of this writ petition including the Annexures appended thereto and also the affidavits of the respondents as well as his replies, obtaining necessary acknowledgment from the said authority in that regard.

¶39

17. In the event of filing such statutory appeal by the petitioner, as directed above, the Director of Elementary Education, Assam shall dispose of the said statutory appeal of the petitioner within a period of 90 (ninety) days, with a reasoned order, in accordance with law, after verification of all the relevant records of the said M.E. Madrassa, its relevant DISE/UDISE, appointment orders of the petitioner as well as the respondent Nos. 7 & 8, their joining reports, subjects taught by each of them etc. and after giving an opportunity of hearing to the petitioner as well as the respondent Nos. 7 & 8, enabling them to place their case and relevant documents for necessary consideration, intimating them about the outcome of the said appeal.

¶40

18. Subject to the filing of the statutory appeal by the petitioner as directed above, the

¶41

Page No.# 6/6

¶42

provincialisation of the respondent Nos. 7 & 8 in said Arzod Ali Memorial M.E. Madrassa in Hailakandi Education Block of District-Hailakandi shall remain suspended till disposal of the appeal to be preferred by the petitioner.

¶43

19. While considering the appeal of the petitioner, if the said concerned Appellate Authority comes to the conclusion that it is the petitioner whose service is provincialised as a Teacher or Tutor, as the case may be, being the Social Studies Teacher of said M.E. Madrassa, which the DSC, Hailakandi wrongfully ignored recommending two Language Teachers of the said Madrassa for provincialisation in violation of Section 3 (1)(xi) of said 2017 Act, the authorities concerned including the Secretary to the Department of School Education, Assam as well as the Finance Department of the State shall do the needful for provincialising the service of the petitioner w.e.f. 01.01.2021 giving him all such consequential service benefits. However, if the said Appellate Authority comes to the finding that the petitioner is not entitled for provincialisation under the said 2017 Act, then the respondent authorities shall release the salaries of the respondent Nos. 7 & 8 in terms of provincialisation of their services as Tutors pursuant to the orders dated 05.02.2021 passed by the Director of Elementary Education, Assam, noted above.

¶44

20. The interim order dated 01.03.2021 passed earlier in this proceeding accordingly stands merged with this order.

¶45

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

¶46

JUDGE

¶47

Comparing Assistant

Rafi Ahmed Mazumder v. the State of Assam and 7 Ors.

Case brief

What is this about?

What did the court decide?

Rafi Ahmed Mazumder v. the State of Assam and 7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Baby Singha Vs the State of Assam and 6 Ors.

Baby Singha Vs Preetom Saikia and 3 Ors.

Rantu Kalita Vs the State of Assam and 6 Ors.

Khadiza Begum Mazumder and Anr. Vs Rafi Ahmed Mazumder and 6 Ors.

Jahirul Islam Vs the State of Assam and 6 Ors.

Babita Das Vs the State of Assam and 2 Ors.