The State of Assam and Anr. Vs Jiban Ch Barman and Ors.

BTAD KOKRAJHAR ASSAM PIN- 783370 5:THE DIRECTOR EDUCATION BTAD KOKRAJHAR ASSAM PIN- 783370 6:THE DY. COMMISSIONER CHIRANG KAJALGAON ASSAM PIN- 783385 7:THE DISTRICT ELEMENTARY EDUCATION OFFICER (DEEO) CHIRANG BTAD ASSAM 8:THE DY. INSPECTOR OF SCHOOLS BIJNI DIST.- CHIRANG BTAD ASSAM 9:THE BLOCK ELEMENTARY EDUCATION OFFICER (BEEO) BOROBAZAR DIST.- CHIRANG BTAD ASSAM 10:THE ASSAM SAMAGRA SHIKSHA ABHIYAN REP. BY THE MISSION DIRECTOR OF ASSAM KAHILIPARA GHY-19 11:THE DISTRICT MISSION CO-ORDINATOR SSA CHIRANG KAJOLGAON BTAD ASSAM PIN- 783385 12:THE BLOCK MISSION CO-ORDINATOR

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BOROBAZAR DIST.- CHIRANG BTAD ASSAM 13:THE UNION OF INDIA REP. BY THE MINISTRY OF EDUCATION GOVT. OF INDIA NEW DELHI-0

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Advocate for the Petitioner : MR. N J KHATANIAR, MS K DAS

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Advocate for the Respondent : DY.S.G.I., MR K ISLAM(R-1,2),MR. A W MONDAL(R-1,2),MS. N NASRIN(R-1,2),MD. I H KHAN (R-1,2),MR. M U MONDAL(R-1,2),SC, SSA,SC BTAD

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BEFORE

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HON'BLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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10.02.2025

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Heard Mr. N.J. Khataniar, learned standing counsel, Education (Elementary) Department, appearing for the review petitioners. Also heard Mr. M.U. Mondal, learned counsel for the respondent Nos.1 and 2/petitioners and Mr. S. Bora, learned standing counsel, BTC/SSA.

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2. This review petition is preferred by the petitioners – (1) State of Assam, represented by the Secretary to the Govt. of Assam, Department of School Education, Dispur and (2) The Director of Elementary Education, Assam, Kahilipara, under Article 215 of the Constitution of India, read with Chapter X of the Gauhati High Court Rules praying for review of the order dated 01.12.2023 passed by this Court in WP(C) No.6147/2022.

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3. The background facts leading to filing of the present writ petition is briefly stated as under:-

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“The respondent Nos.1 and 2/petitioners have preferred one writ petition, being

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WP(C) No.6147/2022 for setting aside the orders dated 29.09.2015, 07.07.2022 and 25.07.2022 issued by the Director of Elementary Education and Mission Director, SSA, Assam, whereby the prayer for payment of salary to the writ petitioners was rejected.

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It is to be noted here that the other prayer made in the writ petition was to release salary to the petitioners w.e.f. 01.01.2013. The said writ petition was allowed vide order dated 01.12.2023 by setting aside the orders dated 29.09.2015, 07.07.2022 and 25.07.2022 by holding that the petitioners are entitled for provincialisation under the law and their entitlement for provincialisation should not be rejected merely on the ground that the DISE data being not available and accordingly, direction was issued for payment of salary to the petitioners within a period of one month.

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The review of the order dated 01.12.2023 was sought for on the ground that while adjudicating the claim of the petitioners for payment of salary, the finding of the Managing Director, SSA, in the order dated 07.07.2022 was not considered by this Court to the effect that the petitioners failed to produce any document in support of their claim that the petitioners' school, namely, Beltoli Nabajyoti L.P. School was allotted UDISE 0311206 for the year 2009-10 and in the DISE data maintained by NUPEA, the school bearing DISE Code 0311206 is not available for the year 200910. Further, as per report of the SSA, the name of the school Beltoli Nabajyoti School was found with DISE Code 0111206 under Chirang district from the year 2011-12, so the claim of the petitioners that the school bearing DISE Code 0311206 for the year 2009-10 and 0111206 from the year 2011-12 is the same school and is doubtful. But the aforementioned aspect has not been considered by this Court while passing the order dated 01.12.2023. Hence, this review petition is preferred.”

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4. Mr. Khataniar, learned standing counsel for the review petitioners submits that while passing the order dated 01.12.2023, this Court has not taken into account the

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report of the Managing Director, SSA, dated 07.07.2022, which indicates mismatching of the DISE Code of the school, namely, Beltoli Nabajyoti L.P. School, where the respondent Nos.1 and 2/writ petitioners are working, has been allotted UDISE 0311206 for the year 2009-10. The same was not available with the data maintained by NUPEA and further, Mr. Khataniar submits that the order was passed by this Court for regularisation of the service of the petitioners under the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017. But, there was no specific direction from which date the salary of the petitioners has to be paid. If the prayer of the petitioners are considered w.e.f. 01.01.2013, then under the present Act the review petitioners are unable to give effect from that date i.e. 01.01.2013 and as such, Mr. Khataniar submits that the order dated 01.12.2023 requires to be reviewed/modified.

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5. Per contra, Mr. Mondal, learned counsel for the respondent Nos.1 and 2/petitioners submits that the school of the petitioners was provincialised w.e.f. 01.01.2013 and at that point of time the Act of 2011 i.e. Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 was in force and in view of Section 24 of the Act of 2017, it is provided that “the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended vide the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2012 and the Assam Venture Educational Institutions (Provincialisation of Services) (Amendment) Act, 2013, which have been struck down by the Hon'ble Gauhati High Court vide order dated 23.09.2016 in WP(C) No.3190/2012, and all rules, orders, notifications issued thereunder, shall stand repealed, however, all the teachers whose services were provincialised prior to 23.09.2016, shall continue and their cases shall be reviewed as per the eligibility norms set forth for provincialisation under this Act and in view of the expressed provision of Section 24, no clarification of the order dated 01.12.2023 is required to be given. The section is clear that the same shall be considered under the new Act. Under such circumstances, Mr. Mondal, learned counsel for the respondent Nos.1 and 2/petitioners contended to dismiss the review petition.

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6. Having heard the submission of learned Advocates of both the parties, I have

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carefully gone through the petition and the documents placed on record and also perused the order of this Court dated 01.12.2023 and I find substance in the submission of Mr. Mondal, learned counsel for the respondent Nos.1 and 2/writ petitioners.

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7. The principles, on which review is permissible, is well settled in catena of decisions of Hon’ble Supreme Court. In the case of Kamlesh Verma v. Mayawati, reported in (2013) 8 SCC 320, Hon’ble Supreme Court had summarized the principles as under:-

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Summary of the principles

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20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

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20.1. When the review will be maintainable:

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(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

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(ii) Mistake or error apparent on the face of the record;

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(iii) Any other sufficient reason.

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The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144: (1922) 16 LW 37: AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275]

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20.2. When the review will not be maintainable:

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(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

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(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the original hearing of the case.

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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

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(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

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(vi) The mere possibility of two views on the subject cannot be a ground for review.

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(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

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(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

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8. Keeping the above principles in mind now an endeavour will be made to find out if there is any discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; if there is any mistake or error apparent on the face of the record; or if there is any other sufficient reason.

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9. Here in this case, it is apparent from the contention made in the review petition and also from the submission of Mr. Khataniar, learned standing counsel, Education (Elementary) Department, for the review petitioners that review is being sought

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for basically on following two grounds:-

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(i) While passing the order under review this Court has not considered the report of the Managing Director, SSA, dated 07.07.2022,

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(ii) While passing the order under review for regularisation of the service of the petitioners under the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017, no specific direction was issued from which date the salary of the petitioners has to be paid.

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10. That a perusal of the order under review reveals that this Court had taken note of the report of the Managing Director, SSA, dated 07.07.2022 and consciously arrived at a conclusion that Beltoli Nabajyoti L.P. School is situated in a very remote area of Kuklung Forest Range in the Indo-Bhutan Border and the area is very backward both economically and educationally and that is the only educational institution within the radius of 3 KM of such a remote area and a clarification was also given by this Court that the present adjudication is made in the peculiar facts and circumstances on the matter regarding extreme remote location of the school in the Indo-Bhutan Border in a forest area where the school being isolated from others may not have been subjected to the same treatment as the said school in the State may have received and as such strict technical interpretation of the requirement of Section 3(1)(xii) of the Act of 2017 is satisfied and there may be a reasonable classification with an intelligible differentia with the object at hand from the other regular schools which are subjected to provincialisation under the Act and if the same applicability and meaning of Section 3(1)(xii) is also given to the Beltoli Nabajyoti L.P. School, there would be a violation of Article 14 of the Constitution in as much as, two classes having a distinct differentiation with each other would be subjected to the same law. This Court had also taken note of the verification report of the District Mission Coordinator, dated 08.06.2022, who had personally visited the school on 04.06.2022, in respect of verification of reports and records of DISE Code of 2009-10, which indicates that the school is in existence since 17.03.1999 and also indicates

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fulfillment of all the requirements. Further, it was clarified that the direction contained in the order under review shall not read as a precedent.

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11. Thus, it is apparent that there is no discovery of new and important matter or evidence which, after the exercise of due diligence, or there is any mistake or error apparent on the face of the record or there is any other sufficient reason for review of the above finding.

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12. Now, coming to the second point, I find from para 7 of the judgment under review that in no uncertain term it has been held that the claim for provincialisation of the services of the petitioner would now have to be considered under the Act of 2017. The said paragraph read as under:-

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“ 7. As the matter had not been carried forward sufficient enough to invoke the provisions of the Act of 2011, we are of the view that the claim for provincialisation of the petitioners would now have to be considered under the Act of 2017. But at the same time, we also take note of the reasons provided in the three orders dated 29.09.2015, 07.07.2022 and 25.07.2022 for rejecting the claim for provincialisation. ”

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13. But, this aspect also stands clarified in paragraph No.22 of the judgment under review in following terms:-

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“ 22. By referring to page-37 Mr. M.U. Mondal, learned counsel for the petitioners states that the school was already provincialised but it is only the salaries which are not being paid to the petitioners. If that is so, as the school is otherwise to be provincialised as held hereinabove, consequence thereof would be that the teachers would also be entitled to the salaries and accordingly, the salaries of the petitioners be also paid as per their entitlement within a period of one month from the date of receipt of certified copy of this order. ”

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14. Further, from a cursory perusal of the Section 24 of the Act of 2017, makes it discernible that all the teachers, whose services were provincialised prior to 23.09.2016, shall continue and their cases shall be reviewed as per the eligibility norms set forth for provincialisation under the Act of 2017.

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15. It is not in dispute that the petitioners’ school was provincialised w.e.f. 01.01.2013, much prior to 23.09.2016, as mentioned in Section 24 of the Act of 2017. And as such, they are entitled to salary with effect from that date on which their services were provicialised i.e. 01.01.2013. And it is discernible from the paragraph No.22 of the judgment under review and from Section 24 of the Act of 2017, itself.

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16. In view of above and also in view of the submission of Mr. Mondal, learned counsel for the respondent Nos.1 and 2/writ petitioners, this Court is of the view that no error apparent on the face of the record or any sufficient ground could be shown by the petitioners, from the record, requiring review of the order dated 01.12.2023.

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17. Consequent upon quashing and setting aside of the three orders, dated 29.09.2015, 07.07.2022 and 25.07.2022 for rejecting the claim for provincialisation, no occasions arises for review of their service, as per the eligibility norms set forth for provincialisation under the Act of 2017.

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18. In the result, I find no merit in this petition and accordingly, the same stands dismissed. Consequent upon dismissal of this review petition, the petitioners herein are under obligation to comply with the order dated 01.12.2023, of this Court in WP(C) No.6147/2022 within the period stipulated therein by this court.

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Sd/- Robin Phukan JUDGE

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Comparing Assistant

The State of Assam and Anr. v. Jiban Ch Barman and Ors.

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The State of Assam and Anr. v. Jiban Ch Barman and Ors.

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