Md. Mahar Ali Vs the State of Assam and 3 Ors.

Heard Mr. A. Chakraborty, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned Standing counsel for the respondent Nos. 1, 2 and 3 and Mr. B. Gogoi, learned Standing counsel for the respondent No. 4.

¶19

In this petition, under Article 226 of the Constitution of India, the petitioner, namely, Md. Mahar Ali, has challenged the order No. EPD/H/86/2022/100, dated 12.04.2023, passed by the Director of Elementary Education, Assam/respondent No. 2.

¶20

It is to be noted here that vide impugned order dated 12.04.2023, the respondent No. 2 has rejected the appeal dated 19.12.2022, filed by the petitioner for provincialisation of his service.

¶21

Mr. Chakraborty, learned counsel for the petitioner submits that the petitioner has joined Dakshin Kumullipara M.E. Madrassa on 01.01.1995, as Assistant Teacher of Language (Assamese) and has been continuously working since then. The school was granted recognition in the year 2005. Thereafter, the District Level Committee submitted proposal for provincialisation of services of three teachers/tutors of Dakshin Kumullipara M.E. Madrassa, including the petitioner. Then the services of the Headmistress, namely, Alia Khanam and one Science Tutor, namely, Nazmul Hoque were provincialised, however, said Nazmul Hoque left the job. Mr. Chakraborty further submits the service of the petitioner was not provincialised and no reason was assigned for the same and being aggrieved, the petitioner had preferred one writ petition, being WP(C) No. 6106/2021 before this Court. Thereafter, this Court, vide order dated

¶22

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¶23

01.12.2022, disposed of the said writ petition by directing the petitioner to prefer an appeal before the State Level Scrutiny Committee under Section 14 of the Assam Education (Provincialisation of Services of Teachers and ReOrganisation of Educational Institutions) Act, 2017. Accordingly, the petitioner had preferred an appeal dated 19.12.2022, but the name was rejected by the respondent No. 2, vide impugned order dated 12.04.2023, on the ground that his name was not reflected in the DISE data for the year 2011-12. However, Mr. Chakraborty submits that a bare perusal of the DISE data for the academic year 2011-12, which is being annexed with the petition as Annexure-9, clearly shows that the name of the petitioner was reflected at Sl. No. 2 and as such, the impugned order dated 12.04.2023, is perverse.

¶24

4.1. Referring to the affidavit-in-opposition filed by the respondent No. 4, especially to Annexure-A, at page No. 43 of this petition, Mr. Chakraborty submits that the stand taken by the respondent No. 4 and the Annexure-A also fortified the claim made by the petitioner and that in the year 2011-12, the name of the petitioner was reflected in the DISE data, and therefore, it is contended to allow this petition.

¶25

Mr. Phukan, learned Standing counsel for the respondent Nos. 1, 2 and 3 submits that in view of the Annexure-A submitted by the respondent No. 4, and the stand taken in the affidavit-in-opposition filed by the respondent No. 4, the impugned order dated 12.04.2023, may be set aside and the matter may be remanded to the respondent No. 2 to examine the matter afresh and to provincialise the service of the petitioner, if the name of the petitioner is found reflected in the DISE data for the year 2011-12.

¶26

Mr. Gogoi, learned Standing counsel for the respondent No. 4 also submits that in view of Annexure-A, the name of the petitioner is reflected in the DISE

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data for the year 2011-12 and his name is continuously being reflected since the year 2006-07 till 2020-21, in the DISE data.

¶29

Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 12.04.2023.

¶30

It appears that respondent No. 2 had rejected the appeal of the petitioner on the ground that his name does not appear in the DISE data for the year 2011-12 and as such, he did not fulfil the DISE criteria as per the decision of the Joint Committee minutes, dated 24.07.2020 and thereafter, dismissed the appeal.

¶31

On the other hand, it is the categorical stand of the petitioner that his name is reflected in the DISE data, not only for the year 2011-12, but also continuously being reflected w.e.f. 2006-07 till 2020-21. The stand taken by the petitioner is further strengthened by the Annexure-A of the affidavit-inopposition filed by the respondent No. 4 and also the same is apparent from the stand taken by the respondent No. 4 in paragraph No. 4 of the affidavit-inopposition. And as such, the impugned order, so passed by the respondent No. 2 based on the decision of the Joint Committee minutes dated 24.07.2020, is perverse, arbitrary and illegal and without any basis. The Joint Committee as well as the respondent No. 2 have failed to apply their mind and acted like a post office and the said practice deserves deprecation in the strongest term.

¶32

Under the aforesaid facts and circumstances, this Court is constrained to set aside the impugned order dated 12.04.2023. As the contention made by the petitioner and also from the Annexure-A and paragraph No. 4 of the affidavit-inopposition of the respondent No. 4, clearly indicates that the name of the

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petitioner is being reflected since the year 2006-07, continuously till 2020-21 and thereby, fulfil the DISE criteria, by a mandamus of this Court, the respondent No. 2 is directed to provincialise the service of the petitioner from the date, on which the service of the Headmistress, namely, Alia Khanam was provincialised, and to release the consequential service benefits to him.

¶35

The aforesaid exercise has to be carried out within a period of one month from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent No. 2 within a week from today.

¶36

In terms of above, this writ petition stands disposed of.

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JUDGE

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Md. Mahar Ali v. the State of Assam and 3 Ors.

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Md. Mahar Ali v. the State of Assam and 3 Ors.

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