Md. Rafiqul Islam Vs the State of Assam and 3 Ors.

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GAHC010138102021

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2026:GAU-AS:6657

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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)/4412/2021

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MD. RAFIQUL ISLAM S/O ABDUL JUBBAR MIAH RESIDENT OF MILONPUR, ERA KAPILI, PO AND PS JAMUNAMUKH, DIST HOJAI, ASSAM 782428

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VERSUS

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THE STATE OF ASSAM AND 3 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (HIGHER) DEPARTMENT, DISPUR GUWAHATI 781006

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2:THE SECRETARY TO THE GOVT. OF ASSAM

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FINANCE DEPARTMENT DISPUR GUWAHATI 781006

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3:THE DIRECTOR OF HIGHER EDUCATION

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ASSAM KAHILIPARA GUWAHATI 781019

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4:THE JAMUNAMUKH COLLEGE

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REPRESENTED BY ITS SECRETARY CUM PRINCIPAL PO JAMUNAMUKH DIST HOJAI ASSAM 78242

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Advocate for the Petitioner : MR. U K NAIR, MR. M SARMA,MR. M K CHOUDHURY,MR. A

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BORO,MR. M P SARMA

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Advocate for the Respondent : SC, HIGHER EDU, MR. A M AHMED,MR J ABEDIN,SC, FINANCE

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:::BEFORE:::

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HON’BLE MR. JUSTICE KARDAK ETE

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Date on which judgment is reserved : NA Date of pronouncement of judgment : 14.05.2026 Whether the pronouncement is of

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the operative of the judgment? : No

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Whether the full judgment has been pronounced? : Yes

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JUDGEMENT (ORAL)

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Heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. M. Sarma, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned Standing counsel, Higher Education Department ,for respondent Nos. 1 and 3; Mr. B. Gogoi, learned Standing Counsel, Finance Department for respondent No. 2; and Mr. J. Abedin, learned Counsel, for respondent No. 4.

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2. By filing this writ petition, the petitioner has prayed for a direction to the respondent authorities to consider his case for provincialisation of service as Librarian of Jamunamukh College, Jamunamukh, Hojai, in terms of the

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provisions of the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018 (hereinafter referred to as “Act of 2018”, for short).

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3. The case of the petitioner, in brief, is that he graduated in the year 2002 and obtained the Bachelor of Education (B.Ed) degree in the year 2004. In the year 2010, he completed the degree in Bachelor of Library Science and thereafter Master in Library Science in the year 2011. Subsequently, the petitioner also obtained the degree of Doctor of Philosophy (Ph.D.) in the year 2016 from the Calorx Teachers’ University, now known as Sabarmati University. As per his educational qualification, the petitioner is eligible and qualified for the post of Librarian in any provincialised Colleges in the State of Assam.

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4. The Governing Body of Jamunamukh College issued an advertisement dated 10.11.2010 inviting applications for filling up the posts of Librarian and Assistant Librarian. Pursuant to the said advertisement and the consequent selection process, the petitioner was recommended for appointment to the post of Assistant Librarian. Accordingly, the Governing Body of the college, in its meeting held on 01.12.2010, resolved to appoint the petitioner as Assistant Librarian and thereafter, the petitioner was appointed vide order dated 03.12.2010. It was further resolved by the Governing Body that in the event the petitioner acquired the requisite qualification of Master of Library Science within a period of 2 (two) years, he would be upgraded to the vacant post of Librarian. The petitioner joined his service as Assistant Librarian on 10.12.2010.

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5. The petitioner was granted study leave for pursuing the Master of Library Science course and he completed the same on 26.10.2011. Subsequently, the Governing Body of the college, vide resolution dated 29.11.2011, decided to fill

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up the vacant post of Librarian and accordingly issued an advertisement for the said post. However, as no application was received pursuant to the said advertisement, the petitioner submitted an application dated 02.12.2011 praying for his upgradation to the post of Librarian in terms of the earlier resolution of the Governing Body dated 01.12.2010. The said proposal was forwarded to the competent authority. Thereafter, the Governing Body resolved to upgrade the petitioner to the post of Librarian and to regularise his service. Accordingly, vide order dated 28.06.2012, the service of the petitioner was upgraded from Assistant Librarian to Librarian and his service was regularised with effect from the date of his joining. In the meantime, the petitioner also pursued the Ph.D. course after obtaining permission for study leave from the competent authority and thereafter rejoined his service on 17.01.2013.

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6. The Government of Assam enacted the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 for provincialisation of the institutions and the services of employees of venture educational institutions, which was notified in the Official Gazette on 05.09.2011. Under Section 4(2) and Section 10(4) read with the Schedule appended thereto, the maximum number of employees of venture colleges whose services could be provincialised was prescribed, including the posts of Principal, Lecturer, Librarian, Assistant Librarian, Senior Assistant, Library Assistant and Grade-IV staff. Although Jamunamukh College fulfilled the eligibility criteria under Section 3 of the said Act of 2011 for provincialisation of the services of both teaching and nonteaching staff, the institution was not brought under the process of provincialisation.

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7. A Division Bench of this Court, in the case of Chandan Kumar Neog and Ors vs. State of Assam and Ors., reported in 2016 (5) GLT 296, by judgment and order dated 23.09.2016, declared the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 to be constitutionally invalid. Subsequently, the State Government enacted a fresh legislation, namely, the Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 and the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018, for provincialisation of the institutions and the services of non-teaching staff of venture educational institutions. In the Schedule appended to the Act of 2018, different categories of non-teaching staff of venture educational institutions were prescribed; however, the post of Librarian in degree colleges was not initially included therein. The Schedule to the Act of 2018 was amended by the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) (Amendment) Act, 2020 (hereinafter referred to as the “Amendment Act of 2020”), whereby the post of Librarian was included and provision was made for provincialisation of one post of Librarian in each degree college.

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8. It is the case of the petitioner that his case for provincialisation as Librarian was not considered on the ground that he did not possess the requisite qualification of Master of Library Science (M.Li.Sc.) on the date of his initial appointment or prior to 01.01.2011, in spite of the fact that he was initially appointed as Assistant Librarian in the said college pursuant to the resolution of the Governing Body dated 01.12.2010 with a stipulation that in the event he acquired the requisite qualification for the post of Librarian within a period of 3 (three) years, he would be upgraded to the post of Librarian. Subsequently, he

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obtained the M.Li.Sc. degree on 26.10.2011. Thereafter, the Governing Body of the college, vide Resolution No. 1 adopted in its meeting held on 17.06.2012, resolved to upgrade the petitioner to the post of Librarian with effect from the date of his initial appointment, i.e. 03.12.2010. Therefore, he fulfils all the conditions prescribed under Section 4(2) of the Act of 2018 read with Section 2 of the Amendment Act of 2020 and as such, he is entitled to provincialisation of his service as Librarian with effect from 01.01.2021 in Jamunamukh College.

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9. It is the further case of the petitioner that with the passage of time and in view of the applicable norms and staffing pattern, the college became entitled to retain only 1 (one) post, namely either the post of Librarian or Assistant Librarian. Since the petitioner was serving against the post of Librarian, the said sanctioned requirement was retained against the post of Librarian and accordingly, at present, the college has only the post of Librarian and no post of Assistant Librarian exists therein for which the service of the petitioner is required to be provincialised.

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10. Mr. M. K. Choudhury, learned Senior Counsel for the petitioner, submits that the Act of 2018 is a beneficial legislation enacted with the object of provincialising the services of eligible non-teaching staff of venture educational institutions. Referring to the definition of “provincialisation” under the Act, learned Senior Counsel submits that the legislative intent is to extend the benefit of Government service to all eligible non-teaching staff fulfilling the conditions prescribed under Sections 3 and 4 of the Act of 2018. He submits that the petitioner fulfils all the eligibility criteria prescribed under the Act of 2018 as well as the Amendment Act of 2020 and therefore, denial of

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provincialisation of his service as Librarian is arbitrary and unsustainable in law. He submits that the post of Librarian is a recognized and mandatory post in a degree college, which is also evident from the Schedule appended to the Amendment Act of 2020 providing for provincialisation of one post of Librarian in each college.

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11. Mr. Choudhury, learned Senior Counsel, further submits that although the petitioner was initially appointed as Assistant Librarian, his appointment was made subject to acquiring of requisite qualification for the post of Librarian within the stipulated period. The petitioner acquired the M.Li.Sc. within the prescribed period and was thereafter upgraded to the post of Librarian by the Governing Body of the college with effect from the date of his initial appointment. Therefore, he submits that the respondent authorities are not justified in refusing to consider the petitioner’s case for provincialisation on the ground that he did not possess the M.Li.Sc. qualification on the date of his initial appointment. He submits that similarly situated non-teaching staff have already been granted the benefit of provincialisation and therefore, denial of the same benefit to the petitioner is discriminatory and violative of Articles 14 and 16 of the Constitution of India.

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12. Mr. K. Gogoi, learned Standing Counsel, Higher Education Department, for respondent Nos. 1, 2 and 3, submits that the present writ petition is not maintainable in view of the statutory remedy available under Section 8 of the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018, which provides for an appellate mechanism against the recommendations of the District Scrutiny Committee and the State

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Level Scrutiny Committee. He submits that when the statute provides a specific remedy, the petitioner ought to have availed the same instead of invoking the writ jurisdiction of this Court. He submits that the petitioner was initially appointed as Assistant Librarian vide order dated 03.12.2010 and joined the said post on 10.12.2010. The petitioner was subsequently upgraded to the post of Librarian only vide order dated 28.06.2012.

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13. Referring to Section 4(2)(ii) and (iii) of the Act of 2018, Mr. K. Gogoi, learned Standing Counsel, submits that an employee seeking provincialisation must possess the minimum educational and professional qualifications prescribed under the relevant service rules as on 01.01.2011 and must have rendered at least 6 (six) years of continuous service as on 01.01.2017 from the date of joining, which should be on or before 31.12.2010. He submits that the petitioner did not possess the requisite M.Li.Sc. qualification as on 01.01.2011 and was not serving as Librarian on or before 31.12.2010. Therefore, the petitioner does not satisfy the eligibility criteria prescribed under the Act of 2018.

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14. Mr. Gogoi, learned Standing Counsel, further submits that the petitioner acquired his Bachelor of Library Science degree in the year 2010, M.Li.Sc. degree on 26.10.2011 and Ph.D. degree on 23.02.2016 from a private university outside the State. Learned Standing Counsel also questions the claim of continuous service projected by the petitioner during the relevant period. He submits that the Amendment Act of 2020 was enacted for upgradation of eligible employees upon provincialisation and the date of appointment contemplated therein relates to the date of provincialisation under Section 4(1)

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of the Act of 2018 and not the initial appointment in the venture institution. Therefore, he submits that the petitioner’s claim for provincialisation as Librarian is not tenable under law.

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15. I have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record, including the provisions of the Assam Education (Provincialisation of Services of Non-Teaching Staff of Venture Educational Institutions) Act, 2018.

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16. The petitioner was initially appointed as Assistant Librarian in Jamunamukh College vide order dated 03.12.2010, issued by the Secretary of the Governing Body of the college and joined his service on 10.12.2010. Subsequently, upon acquiring the qualification of Master of Library Science, his service was upgraded from Assistant Librarian to Librarian and regularized with effect from the date of his joining vide order dated 28.06.2012.

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17. By an order dated 05.02.2021, passed by the Director of Higher Education, Assam, in exercise of the authority conferred under Section 4(1) of the Act of 2018, the services of 12 teaching staff and 8 non-teaching staff of Jamunamukh College have been provincialised. However, neither the post of Librarian nor Assistant Librarian have been included in the said provincialisation order. Aggrieved thereby, the petitioner seeks consideration for provincialisation of his service as Librarian.

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18. To appreciate, it is apposite to refer and consider the relevant provisions of the Act of 2018, which are reproduced herein under:-

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“2. Definitions:- (1) In this Act, unless the context otherwise requires,-

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(d) "employee" means and includes all serving non-teaching staff of Venture Educational Institutions who have been appointed and joined in the concerned Venture Educational Institution before the 1st day of January, 2011 and whose services are being or would be provincialised under this Act;

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(e) "non-teaching staff" means and includes the Librarian, Assistant Librarian, Sr. Assistant, Junior Assistant, Library Assistant, Laboratory Assistant, Laboratory Bearer, Grade-IV as specified in the Schedule;

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3. Eligibility criteria for selection of educational institution for provincialisation of services of non-teaching staff:- Subject to the provisions of Article 30 of the Constitution of India, the Venture Educational Institutions which have been considered for provincialisation of services of teacher/tutors under the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017 (Assam Act No. XXV of 2017) shall be eligible for being considered for provincia-lisation of services of their non-teaching staff.

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Non-teaching staff to be Government Servants:- (1) Subject to fulfillment of all other provisions of this Act, the services of the non-teaching staff of all Venture Educational Institutions eligible under Section 3 shall be deemed to have been provincialised on the date of publication of the provincialisation order by Notification in the Official Gazette for the provincialisation of services of teacher/tutor of that school/college, and they shall become employees of the State Government with effect from such date. Further their services shall also be utilized in the base school where the services of teachers/tutors of that school are utilized:

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Provided that where the numbers of the non-teaching staff serving in such Venture Educational Institutions exceed the numbers as specified in the Schedule, the provincialisation of the services of the employees shall be on the basis of seniority of service in the respective category in the concerned educational institutions. The State Government shall have no such liability whatsoever in regard to such excess employees.

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(2) The employee to be provincialised under this Act,-

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(i) must have been working in the concerned Venture Educational Institution that have been recognized by the competent authority on or before 01.01.2006;

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(ii) must have minimum educational and professional qualifications as laid down under relevant Service Rules as on 01.01.2011;

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(iii) must have rendered at least six years continuous service as on 1.1.2017 from the date of joining in the concerned Venture Educational Institution which must be on 31.12.2010 or prior to that date.

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

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19. A bare reading of the aforesaid provisions shows that the eligibility criteria primarily relate to the educational qualification and the continuous service rendered by the employee in the concerned venture educational institution. Section 2(d) defines “employee” to mean all serving non-teaching staff of venture educational institutions who were appointed and joined prior to 01.01.2011 and whose services are being or would be provincialised under the Act. Section 2(e) includes Librarian and Assistant Librarian within the definition of “non-teaching staff”. Section 4(2)(ii) provides that the employee must possess the minimum educational and professional qualifications prescribed under the relevant service rules as on 01.01.2011, whereas Section 4(2)(iii) requires that such employee must have rendered at least 6 (six) years of continuous service as on 01.01.2017 from the date of joining in the concerned

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venture educational institution, which must be on or before 31.12.2010.

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20. Admittedly, the post of Librarian was not initially included in the Schedule appended to the Act of 2018 in respect of degree colleges, but the same came to be included subsequently by virtue of the Amendment Act of 2020, whereby one post of Librarian is to be provincialised in each degree college of the venture institutions.

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21. In the present case, the petitioner was appointed as Assistant Librarian prior to 31.12.2010 and joined his service on 10.12.2010. It is not in dispute that the petitioner subsequently acquired the qualification of Master of Library Science and was thereafter upgraded to the post of Librarian by the Governing Body of the college. Thus, the petitioner appears to have rendered the requisite 6 (six) years of continuous service as on 01.01.2017 from the date of his joining in the concerned institution.

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22. Under Section 4(2)(iii) of the Act of 2018, what is relevant is the continuous service rendered by the employee in the concerned venture educational institution from the date of joining. The subsequent upgradation of the petitioner from Assistant Librarian to Librarian upon acquiring the requisite qualification cannot, by itself, render him ineligible for consideration, particularly when the post of Librarian itself has subsequently been brought within the purview of provincialisation by the Amendment Act of 2020.

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23. It is also noticed that the service of one Ms. Manjula Deka, serving as Librarian of Chatia College, Sootea, in the Biswanath District, has been

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provincialised by order dated 11.02.2021. Though each case has to be determined on its own contextual facts, the said circumstance lends support to the contention of the petitioner that similarly situated non-teaching staff particularly, the post of Librarian, has been considered for provincialisation. Therefore, non-consideration of the petitioner appears to be arbitrary as the provision requires for consideration of the non-teaching staff on verifying the education qualification and the continuous service.

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24. Regard being had to the issue of maintainability of the writ petition on the ground of alternative remedy raised by the learned Standing Counsel, Higher Education Department, upon perusal of the Section 8 of the Act of 2018, this Court is not persuaded to accept the contention as the said provision, though provides appellate authority but it reads that the State L evel Scrutiny Committee shall be the appellate authority in respect of any recommendation of the District Scrutiny Committee and the State Government in the concerned administrative department shall be the Appellate Authority in respect of any recommendation of the State Level Scrutiny Committee, which clearly reflects that the appellate authority is only in respect of recommendation, whereas in the present case there is no consideration at all much less the recommendation. Thus, the writ petition is maintainable.

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25. In view of what has been discussed hereinabove, this Court is of the considered opinion that the case of the petitioner deserves to be considered for provincialisation of his service as Librarian of Jamunamukh College in accordance with the provisions of the Act of 2018 read with the [Schedule] Amendment Act of 2020.

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26. Accordingly, the respondent authorities are directed to consider the case of the petitioner for provincialisation of his service as Librarian strictly in terms of the provisions of the Assam Education (Provincialisation of Services of NonTeaching Staff of Venture Educational Institutions) Act, 2018 read with the [Schedule] Amendment Act of 2020. The aforesaid exercise shall be completed within a period of 4 (four) months from the date of receipt of a certified copy of this order.

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27. With the above observations and directions, this writ petition stands disposed of. No order as to cost(s).

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JUDGE

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Comparing Assistant

Md. Rafiqul Islam v. the State of Assam and 3 Ors.

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Md. Rafiqul Islam v. the State of Assam and 3 Ors.

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