Abdus Sabur Ali Mollah and 27 Ors. Vs the State of Assam and 2 Ors.

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GAHC010221752025

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undefined

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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)/6260/2025

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ABDUS SABUR ALI MOLLAH AND 27 ORS. S/O MONSER ALI MOLLAH, VILL BORJAN, P.O. BORJAN, DISTRICTDHUBRI, ASSAM-783332

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2: ABDUS MATIN SARKAR S/O- MANSUR ALI SARKAR VILL- JHAPUSA BARI PT. I P.O.- JHAPUSA BARI DISTRICT- DHUBRI ASSAM- 783335

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3: MALEKA KHATUN D/O- MD. HOSSAIN ALI FOKIR VILL. SARPOMARI P.O. TAMARHAT DISTRICT- KOKRAJHAR PIN 783332

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4: ABDUL BASED SK S/O AZIZUR RAHMAN VILL POKALAGI P.O. KAMANDANGA DISTRICT- KOKRAJHAR PIN 783332

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5: GORIB NAWAS AHAMED S/O JAHANUDDIN AHMED VILL. NATABARI P.O. TAMARHAT DISTRICT- KOKRAJHAR PIN 783332

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6: ABDUL MOZID SK S/O ABDUL AZIZ SK

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VILL- BARKHASUA P.O. BARJAN DISTRICT- DHUBRI PIN 783332

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7: ABDUL MAZID FOKIR S/O- ABDUL HAMID FOKIR VILL. AND P.O UJAN PETLA PT. 1 DISTRICT- DHUBRI PIN 783332 8: MD ABDUL RAHMAN SK S/O- MD. PANAULLAH SK VILL- BAR KHASUA P.O- SRI NAGAR DISTRICT- DHUBRI PIN- 783332

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9: SULTANA SHAHIDURA YESMIN W/O AWAIDUL ISLAM VILL- KANAIMARA PT. II P.O- KANAIMARA DISTRICT- DHUBRI PIN- 783135 10: AMINUR ROHMAN S/O LATE RUSTOM ALI VILL FERANGGIRCHAR P.O. SUCKCHAR DISTRICT- DHUBRI PIN 783128

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11: ABDUL KADER SK S/O- HAZI ISRAFIL SK VILL DHUTRAMARI P.O. SRI NAGAR DISTRICT- DHUBRI PIN- 783332 12: NUR AMIN AKAND S/O- ABDUL KASHEM AKAND VILL HARBHANGA GOSSAIGAON P.O. TULSHIBIL DISTRICT- KOKRAJHAR PIN- 783337 13: RABIUL AWAL S/O- ABDUL HUSSAIN

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VILL HARBHANGA P.O. KARTIMARI DISTRICT- KOKRAJHAR PIN 783337

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14: SALIMUDDIN AHMED S/O JAMSED ALI VILLAGE - MADAIKATA P.O.-DHEPARGAON P.S.-TAMULPUR DISTRICT- TAMULPUR PIN - 781354 15: RUPAI BORO S/O- MANGAL CH. BORO VILLAGE AND P.O - DHEPARGAON P.S.- TAMULPUR DISTRICT- TAMULPUR PIN- 781354 16: MD NAJRUL ISLAM S/O- LATE AHMAD ALI VILLAGE - NIZ KAURBAHA P.O.- BARGHULI P.S.-TAMULPUR DISTRICT-TAMULPUR PIN-781354

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17: JAHANARA BEGUM S/O- ABBAS ALI VILLAGE - NIZ KAURBAHA P.O.- BARGHULI P.S.- TAMULPUR DISTRICT- TAMULPUR PIN- 781354

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18: JOGEN CH BORO S/O- LATE PUWA RAM BORO VILLAGE - BALAHATI P.O.- GURMOW P.S.-GORESWAR DISTRICT-TAMULPUR PIN-781366

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19: MINA MEDHI W/O KALPA RAM DAS VILL RAMDIABANGALTOLA P.O. MAJORKURI

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P.S. HAJO DISTRICT- KAMRUP PIN-781102 20: ADIBUL AMIN KHANDAKAR S/O RUHUL AMIN KHANDAKAR VILL- DHINGBORI POTHER P.O- KASHORI P.S. JURIA DISTRICT- NAGAON PIN- 782124 21: AZIZUL HOQUE CHOUDHURY S/O- AKKAS ALI VILL AND P.O- CHITALMARI BILL P.S- JURIA DISTRICT- NAGAON PIN 782124 22: MD MAZIBUR RAHMAN S/O ABDUL AZIZ VILL. SUTIR PAR P.O. SUTIR PAR P.S. JURIA DISTRICT- NAGAON ASSAM PIN 782124 23: MANIR UDDIN KHANDAKAR S/O- ABUL KASHEM KHANDAKAR VILL UTTAR ATHIABARI (AZAD NAGAR) P.O. AND P.S.-BARPETA ROAD DISTRICT BARPETA PIN 781315 24: PUTULI BORO D/O LATE THUSHAI BORO VILL KALAPANI P.O. P.S. GINGIYA DISTRICT SONITPUR PIN 784173 25: MONTU GHATOWAL S/O NANDESWAR GHATOWAL VILL RATOWA PATHAR P.O. CHARIALI P.S. BIHALI DISTRICT SONITPUR

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PIN 784176

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26: RAGHUBIR CHETRY S/O- LATE TARABIR CHETRY VILL SHINGRI BANGALI P.O. SINGRI P.S. DHEKIAJULI DISTRICT SONITPUR PIN 784110 27: DIGANTA HAZARIKA S/O LATE KULADHAR HAZARIKA VILL BAHAABARI PATHAR HATIBANDHA P.O. GANGMOUTHAN P.S. BEHALI DISTRICT SONITPUR PIN 784167 28: NATHU RAM CHAUHAN S/O LATE RATAN CHAUHAN VILL CHITALMARI BILL P.O. CHITALMARI BILL P.S. JURIA DISTRICT NAGAON PIN - 78212 VERSUS THE STATE OF ASSAM AND 2 ORS. REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6.

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2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENTOF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6 3:THE DIRECTOR OF ELEMENTARY EDUCATION KAHILIPARA ASSAM GUWAHATI-19

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Advocate for the Petitioner : MR. B D KONWAR SR. ADV., ANACLATAS AHMED,MS S JAIN,MR P DOLEY,MS M ZOMUANPUII,MS. B SOREN,MRS J M KONWAR

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Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE

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BEFORE

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HONOURABLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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ORDER

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12-11-2025

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(Arun Dev Choudhury,J)

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1. Heard Mr. B. D. Konwar, learned Senior counsel assisted by Ms. S. Jain, learned counsel and Mr. P. Doley, learned counsel for the petitioners and Mr. N. J. Khataniar, learned Standing counsel, Elementary Education Department, Assam for the respondent Nos. 1 & 3.

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2. The petitioners herein were appointed as Assistant Teachers and Head Teachers in L.P. Schools and M.E. Schools in various districts of Assam between 1985 and 1990 by the respective School Managing Committees. Their services were provincialised as ‘Tutors’ under the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Education Institution) Act, 2017 (hereinafter referred to as the Act, 2017). The grievance of the petitioners raised in this petition is that their services could not have been provincialised as ‘Tutors’, but rather their services ought to have been provincialised as ‘Teachers.’

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3. It is not disputed by Mr. Konwar, learned Senior counsel for the petitioners, that in terms of Section 4 of the Act 2017, the services of any teacher/tutor etc., provincialised under the aforesaid Act 2017, will take effect from the publication of the order of provincialisation in the Official Gazette.

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4. It is also not disputed that on the date of publication of such Notification of provincialization of services of the petitioners as Tutors, the petitioners, though were having all other qualifications but were not having 2-year Diploma in Elementary Education (D.El.Ed.)/1-year Bachelor of Education (B.Ed.) qualification and for this reason, the services of the petitioners were provincialised as Tutors instead of Teachers.

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5. It is the argument of Mr. Konwar, learned Senior counsel for the petitioners that such action on the part of the respondent authorities is not legally sustainable, in view of specific prescriptions made under the National Council for Teachers Education Act, 1993 (as amended) (hereinafter referred to as the NCTE Act, 1993) as well as the Rules and Regulations and the Notification framed thereunder.

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6. Referring to Section 12A of the NCTE Act 1993, Mr. Konwar, learned Senior counsel for the petitioners contends that the National Council For Teacher Education (hereinafter referred to as NCTE) is empowered to frame regulation, determine qualification for persons being recruited as teachers in any Primary, Upper Primary, Pre-Primary Secondary, Senior Secondary schools and all the intermediate Schools or Colleges (by whatever name it is called). It is the contention of Mr. Konwar, learned Senior counsel that in terms of Section 2 (ka) of the NCTE Act, 1993 (as amended), a school which is not receiving any aid or grant to meet whole or part of its expenses from the State Government, Central Government or a local authority, also comes under the definition of a school and therefore, the venture schools of the petitioners shall also come under the definition of schools as well as shall be governed by the NCTE Act and Rules framed thereunder.

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7. According to Mr. Konwar, learned Senior counsel, the requirement of the D.El.Ed./B.Ed. certificate is exempted for those teachers who entered into the service of a school before 03.09.2001 in terms of the Notification dated 23.08.2010, which prescribes the minimum qualification for being appointed as teachers in classes I-VIII,

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to which category the petitioners belong. As the petitioners' schools are under the purview of the NCTE Act 1993, and the petitioners entered into service at the venture stage before the aforesaid cutoff date, when D.El.Ed./B.Ed qualification was not made mandatory, the petitioners are entitled to provincialization as Teachers and not as Tutors inasmuch as such teachers are protected.

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8. Referring to Section 2(t) of the Act, 2017, which deals with the definition of ‘Teacher’, Mr. Konwar, learned Senior counsel, contends that a person is treated to be a teacher, when said teacher enters into the service at the venture stage having required qualification under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as RTE, Act, 2009) and NCTE Act, 1993 etc. and the relevant rules and regulation framed thereunder, a harmonious construction of these Acts, i.e., RTE Act 2009, NCTE Act and the Act, 2017 is necessary. According to him, it is not in dispute that the petitioners did have required qualification at the relevant point of time, when they entered into service at the venture stage of their respective schools under the aforesaid provisions of law and therefore, the petitioners could not be treated as Tutors, more particularly, for the reasons that they were having required qualification on the date of entry in their schools at venture stage in terms of the provision of Section 2 (t) of the Act 2017.

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9. According to Mr. Konwar, learned Senior counsel for the petitioners, a harmonious construction of the provisions prescribed under the Act, 2009, the Act, 1993 as well as the rules and regulations framed thereunder with the ACT, 2017 is required so that the object of the Act 2017 to provincialise the services of those teachers, who have been serving in venture schools imparting education in primary/upper primary level and has been playing a role to achieve the goal of right to education, which is now a fundamental right recognized under the Constitution. According to the learned counsel for the petitioners, if it is harmoniously constructed that the educational qualification required under Section 2 (t) of the Act 2017 is

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relatable to the date on which the petitioners entered into service at venture stage taking note of the statutory Notification dated 23.08.2010, the same shall suppress the mischief that has been meted out to the petitioners and shall advance remedy as mandated under all these Acts. In this regard, Mr. Konwar, learned Senior counsel, places reliance on the judgment of the Hon’ble Apex Court passed in the case of Reserve Bank of India & others Vs. Peerless General Finance and Investment Co.Ltd. and others reported in (1987) 1 SCC 424.

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10. Par contra, Mr. Khataniar, learned Standing counsel, Elementary Education Department contends that in the backdrop of an admitted fact that the petitioners did not have the required D.El.Ed./B.Ed. qualification on the date of issuance of the notification for provincialisation under Section 4 of the Act 2017, the respondent authority has rightly provincialised their services as Tutors in strict adherence to the Act, 2017.

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11. In this context, referring to the provision of Section 2(t) of the Act, 2017, which defines ‘Teacher,’ Mr. Khataniar, learned Standing counsel, Elementary Education Department contends that there is no un-ambiguity in Section 2(t) of the Act, 2017 that a teacher must have the required qualification on the date of provincialisation and therefore, the arguments of Mr. Konwar, learned Senior counsel that Section 2 (t) of the Act, 2017 prescribes acquisition of the required qualification on the date of entry into the school at venture stage, is not sustainable on the face of the definition of the Teacher under Sections 2 (t) & Tutor under Section 2 (u) of the Act, 2017.

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12. It is also contended by Mr. Khataniar, learned Standing counsel, Elementary Education Department that legislature in its wisdom intentionally created a separate class of teachers as Tutors and definition of Tutors under Section 2 (u) of the Act, 2017 clearly shows that these teachers are those teachers who are lacking educational and professional qualification on the date of provincialisation inasmuch as the object of the Act, 2017 is to provincialise the services of qualified teachers on the date of

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provincialisation as Teachers and those not having the required qualification are to be provincialised as Tutors. According to him, under Section 8 (3) of the Act, 2017, a time period of 5 (five) years is given to such Tutors for acquiring such a qualification and getting upgraded to the post of teacher. Therefore, according to Mr. Khataniar, learned Standing counsel, Elementary Education Department, even if it is accepted that NCTE Act, 1993 and the relevant rules are applicable in the case of a teacher, then also the principal Act under which provincialisation is made is the Act of 2017 and the prescription made is required to be adhered. Therefore, this writ petition should be dismissed.

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13. Referring to the object to the Act, 2017, Mr. Khataniar, learned Standing counsel, further argues that from the object, it is clear that the intention of the legislature is not only to provincialise the services of the teachers but to provincialise the services of teachers who have a required qualification as prescribed under law.

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14. This Court has given anxious consideration to the arguments advanced by the learned counsels for the parties. Perused the provisions of the Acts cited at the bar. In the backdrop of arguments, let this Court first consider the relevant provisions of the NCTE Act 1993, the RTE Act 2009 and the Act 2017.

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15. The parliament enacted the RTE Act, 2009 on 04.08.2009. The object of the said Act 2009 is to fix the procedure and modalities for implementation of free and compulsory education for children aged between 6 to 16 years as mandated under Article 21(A) of the Constitution of India. This Act came into effect on 1^st April, 2010.

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16. Section 23(1) of the RTE Act, 2009 provides that any person possessing any such minimum qualification, as laid down by an academic authority, authorised by the Central Government, by Notification, shall be eligible for appointment as teacher.

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17. The NCTE Act, 1993, was enacted to provide for the establishment of NCTE

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with a view to achieving planned and coordinated development of the teachers’ education system throughout the country. The further object was to regulate and maintain the norms and standards in the teacher’s education system and for matters connected therewith.

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18. Pursuant to the enactment of RTE Act, 2009, the NCTE Act, 1993, was amended and a Section, namely 12A, was inserted, empowering NCTE to determine minimum standards of education of school teachers. Thus, NCTE is recognised as the authority under Section 23(1) of the RTE Act, 2009.

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19. Accordingly, NCTE issued the Notification dated 23.08.2010 prescribing the minimum qualification for appointment as Teachers, including teachers for classes I- VIII, to which the petitioners belong. In terms of said Notification, amongst others, a candidate must pass the Teacher Eligibility Test (TET) conducted by the appropriate government and must obtain D.El.Ed./B.Ed. qualification to be appointed as a primary school teacher. Clause 4(C) of the Notification dated 23.08.2010, mentioned above, clarifies that such a qualification does not apply to a teacher appointed before 03.09.2001, following the prevalent Recruitment Rules.

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20. Mr. Konwar, learned Senior counsel for the petitioners, is correct in saying that under Clause 4 (C) of the Notification dated 23.08.2010, the acquisition of qualification of TET is waived for those teachers appointed in accordance with the prevalent Recruitment Rules before 03.09.2001. However, to consider the arguments of the learned counsel for the petitioners that in view of such provision, the petitioners are not required to obtain D.El.Ed./B.Ed. qualification for being provincialised as teachers, this Court is to look into the provisions of the Act’2017, under which the petitioners are claiming/granted the benefit of provincialisation.

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21. Now coming to the provisions of the Act, 2017, the object of Act 2017, as declared, amongst others, firstly, is to provincialise the services of teachers of venture

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educational institutes subject to certain conditions prescribed under the Act’2017 and secondly, to re-organise and streamline the venture educational institutions up to degree level in Assam to confirm to the prevailing statutory norms and standards.

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22. Thus, from the aforesaid, it is clear that one of the objects is to maintain the standard of education in terms of prevailing statutory norms. As recorded herein above, the prevailing statutory norms in the present litigation shall be the norms under the RTE Act, 2009 as well as the NCTE Act, 1993, the Assam Secondary Education Provincialisation Act, 2012 and the Rules and the Notifications framed thereunder as on the date of provincialisation.

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23. The definition of ‘teacher’ under Section 2 (t) of the Act, 2017, so far, relates to a teacher of upper primary school; such a teacher is required to have a qualification prescribed under the RTE Act, 2009, as well as the NCTE, 1993 and the relevant rules and regulation framed thereunder as applicable on the day of provincialisation.

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24. Therefore, there is no ambiguity under Section 2 (t) of the Act 2017 that required qualification to come under the definition of teacher, the persons must have the necessary qualification prescribed under the Acts and Rules as enumerated in Section 2 (t) of the Act 2017 itself on the date of provincialisation, not on the date of entering into the service as a teacher into the school at its venture stage.

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25. The object of the Act, 2017 as recorded hereinabove, also emphasises the standard of education prevailing on the date of the enactment of the Act, 2017.

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26. Section 4 of the Act, 2017 clarifies that subject to fulfillment of other provisions prescribed under the Act 2017, the Tutor/Teacher shall become an employee of the State with effect from the date of publication of the Notification of provincialisation in the Official Gazette.

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27. A bare reading of Section 6 (1) of the Act’ 2017 further clarifies that the

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service of a teacher in a venture school shall be considered for provincialisation subject to fulfillment of eligibility criteria relating to educational and professional qualification as laid down under the RTE, 2009 and the rules framed thereunder, the NCTE Act, 1993 and the rules framed thereunder and the Assam Secondary Education (Provincialised) Service Rules, 2003 as amended in 2012 etc.

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28. Section 6(2) of the Act 2017 also clarifies that when a teacher does not have the requisite academic and professional qualifications, prescribed under the relevant Acts, as enumerated under Section 6(1) of the Act’2017, the services of such teachers will not be provincialised as teachers. However, their services shall be provincialised as Tutors.

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29. The aforesaid provision is also relatable to the definition of Tutor given under Section 2 (u) of the Act’2017, which creates a new class of Teachers (Assistant Teacher, Classical Teacher etc.), whose services could not be provincialised as Teachers for want of the educational and professional qualifications as prescribed.

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30. Thus, the intention of the legislature is very clear and loud that it intends to create two sets of teachers, one who are having required educational & professional qualification in terms of the provisions prescribed under the Act’ 2017 as on the date of provincialisation and as enumerated and recorded hereinabove and those teachers, who are not having required educational and professional qualification but shall be provincialised as Tutors.

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31. The intention of the legislature that educational and professional qualification are required on the date of provincialisation is further clarified from Sections 7 & 8 of the Act, 2017, which grants an opportunity to the Tutors to obtain required educational and professional qualifications within a period of 5 years and in the event, such a Tutor acquires such academic and professional qualification, which he/she lacked at the time of provincialisation, the services of such Tutor shall be provincialised

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as Teacher.

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32. Therefore, this Court is of the opinion that, as per the mandate of the Act 2017, to get the service provincialised, the petitioners must have the required educational & professional qualifications on the date of provincialisation. In the case in hand, admittedly, on the date of issuance of the Notification under Section 4 of the Act, 2017, the petitioners did not have the D.El.Ed./B.Ed. qualification, which is a prescribed qualification prevailing on such date. Therefore, from this point of view, this Court cannot find any fault with the authorities in provincialising the services of the petitioners as Tutors.

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33. Now let this Court deal with the arguments of Mr. Konwar, learned Senior counsel for the petitioners, as regards harmonious construction.

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34. This Court has no doubt in its mind that ‘interpretation’ must depend on the text and the context and that the interpretation which makes the textual interpretation match the context is the best.

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35. A statute is best interpreted when it is clear why it was enacted. In the present case, this Court had already concluded clearly as regards the object of the Act,2017, which includes that to be provincialised as teachers, the incumbent must have the educational and professional qualifications prescribed and prevailing as on the date of issuance of the Notification under Section 4 of the Act, 2017.

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36. Though the context is provincialisation of service, but from the unambiguous text of Sections 2 (t), 2 (u), 4, 6, 7 and 8 of the Act, 2017, it is clear that another object and context is to have qualified teacher as per the Act and the rules enumerated in the Act’2017 and as on the date of provincialisation. Now, if this Court looks into the NCTE Act’ 1993, one of the objects is to create an institution which can look into the standard of imparting education inasmuch as such authority is statutorily empowered to prescribe the qualification for being appointed as teacher, which has

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accordingly been prescribed under the Notification dated 23.08.2010 and in that Notification, D.El.Ed./B.Ed. is made mandatory qualification, though an exemption is given to those teachers who entered into the services in terms of the relevant rules before 03.09.2001.

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37. Such an exemption granted under Clause 4 (C) of the Notification is for a teacher who has already entered into the service of a school and who continues to be so. Thus, the object of such exemption is to protect the services of the existing teachers who entered into service before 03.09.2001 in the respective schools as defined under Section 2 (ka) of the Act, 1993, including those governed or managed by local authorities or private schools. However, such exemption shall not be available to a teacher of a venture school who seeks the benefit of becoming a teacher of a provincialised school, more particularly, because, upon provincialisation, such teacher shall enter the fold of Government’s service.

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38. Therefore, the provincialisation shall not mean continuation of service under the Government. Further, as recorded hereinabove, the intention of the legislature in enacting the Act, 2017 is loud and clear that a teacher having the required qualification as on the date of provincialisation shall only be provincialised as a teacher and otherwise as a tutor.

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39. The proposition advanced by Mr. Konwar, shall apply to a teacher of venture/private schools who entered into service before 03.09.2001, and continued to be so and is sought to be deprived of this right by the management for not having the required qualification in terms of the Notification dated 23.08.2010.

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40. In the case in hand, there is a change in the status of the petitioners from being a venture school teacher to a Government School teacher (Tutor) by virtue of the Act, 2017, and therefore, the prescription made under such Act, 2017, as regards the date of acquisition of qualification shall prevail. If the argument of Mr. Konwar is

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accepted, the same shall lead to an interpretation of Clause 4(C) of the Notification dated 23.08.2010, that such clause is meant to protect the previous service in venture schools for grant of benefit under the Act’2017, which in the considered opinion shall defeat the very objects of both the Act’2017 and Clause 4(c) of the Notification dated 23.08.2010 issued by the NCTE.

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41. Therefore, for the reasons recorded herein above, this Court is of the unhesitant view that there is no illegality in treating the petitioners as Tutors instead of Teachers. However, this order shall not be a bar to regularising them as Teachers, if they acquire the requisite qualification within the prescribed period of 5 (five) years. Accordingly, the instant writ petition stands dismissed.

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42. It is recorded herein that the challenge made to the legislation has already been negated in Mohor Ali Sheikh & Ors. vs State of Assam & Anr. reported in 2024 5 GLT 689. It is also made clear that the petitioners shall be entitled to the benefit granted to the tutors as regards the Scale of Pay, in terms of the determination of the Division Bench in Mohor Ali Sheikh & Ors. vs State of Assam & Anr. reported in 2024 5 GLT 689.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

Abdus Sabur Ali Mollah and 27 Ors. v. the State of Assam and 2 Ors.

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Abdus Sabur Ali Mollah and 27 Ors. v. the State of Assam and 2 Ors.

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