1. Heard Mr. N. Hoque, learned counsel for the petitioner. Also heard Mr. S.M.T. Chistie, learned counsel for the respondents 1, 2 and 3 being the
authorities under the Secondary Education Department of the Govt. of Assam.
2. Considering the nature of the order proposed to be passed, we deem it appropriate that notice need not be issued to the respondent No.4 being the
Headmaster of Badla Rangapani High School.
3. The petitioner was appointed as an Assistant Teacher (Arts) in Badla Rangapani High School as per the order of appointment dated 20.01.1990
issued by the Headmaster of the school pursuant to the resolution No.3 of the managing committee in its meeting dated 25.12.1989. The petitioner
joined his service and he continues to serve in the school till date. The other teaching and non-teaching staffs of the school were provincialised under
the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short Act of 2011). The service of the petitioner could not be
provincialised at that stage as because another teacher of the school namely Md. Sarbesh Ali had instituted WP(C) 2863/2013 claiming seniority over
the petitioner. It is stated that in the said writ petition there was an interim order restraining the respondent authorities from provincialising the service
of the petitioner. In the meantime by the order dated 18.11.2013 in WP(C) 2863/2013 was disposed of directing the respondent authorities to resolve
the dispute of seniority between the petitioner and Md. Sarbesh Ali. The petitioner refers to a communication dated 27.09.2016 from the Inspector of
Schools, KDC, Amingaon addressed to the Director of Secondary Education, Assam wherein, in paragraph-4 it is provided that as per the record the
petitioner Md. Bilayet Hussain Assistant Teacher (Arts) is senior to Md. Sarbesh Ali Ahmed as per the date of joining. Accordingly, the Director was
requested to take necessary steps for provincialising the service of the 3rd (Arts) graduate post as per the scrutiny committee report which was
already submitted. The relevant provision in the communication dated 27.09.2016 is extracted below:-
“As per record Md Bilayet Hussain AT (Arts) is senior to Md. Sarbesh Ali Ahmed claiming that the joining date of Bilayet Hussain was
19.05.1996. Actually his date of joining is 25.01.1990 as per records. It is noted that the then Inspector of Schools give a clarification
report vide Letter No.G-14/442/97/2846 dated 8th May/97 that the date of appointment of Bilayet Hussain is 20.01.1990 (copy enclosed in
Flag-C) and he joined on 25.01.1990 (joining report enclosed).
Hence your are request to take necessary steps for provincialisation of service of 3 rd Arts Graduate post as per scrutiny Committee report
which has already submitted (Copy enclosed Flag-D).â€
4. From a reading of the communication dated 27.09.2016 it would go to show that the question of seniority between the petitioner and the other
person had been determined by the respondent authorities and as per the records, the petitioner was found to be senior. We also take note of the
subsequent paragraph in the communication dated 27.09.2016 wherein, the Inspector of School had made a request to the Director for taking
necessary steps for provincialising the service of the 3rd Arts graduate teacher of the said school. We also take note of that as this is a claim under
the Act of 2011, wherein, Section 4 provides that whosoever comes within the purview of the provisions of the schedule thereof are entitled for
provincialisation, there would be a deemed provincialisation from the date from which the Act came into effect. It is stated that the Act of 2011 came
into effect from 01.01.2013. Had it not been for the interim order of this Court in WP(C) 2863/2013, the service of the petitioner would have been
provincialised along with other teaching and non-teaching staffs of the school at that stage itself and further due to the interim order of this Court, the
3rd Assistant Teacher (Arts) of the school was not provincialised and is still vacant. We are aware of the subsequent judgment of the Division Bench
of this Court dated 23.09.2016 in WP(C) 3190/2012 by which the Act of 2011 was declared to be ultra vires. But for the present case, we find that by
operation of law the service of the petitioner already stood provincialised but for the interim order of this Court in a situation where another teacher
had raised the dispute as regards the seniority and subsequently by appropriate orders the seniority had been determined in favour of the petitioner.
5. Considering the matter in its entirety, we direct the Director of Secondary Education to comply with the provision made in the penultimate
paragraph of the communication dated 27.09.2016, wherein, the Inspector of School had made a request for taking necessary steps for provincialising
service of the 3rd Arts graduate post of the said school and bring the same to its logical end by passing an appropriate order. In doing so, it is not to be
construed that this is a direction of this Court to pronvincialise the service of the petitioner but on the other hand it is to be construed that this is a
direction to the Director to consider the case of the petitioner on the facts and circumstance of the case and arrive at its own independent conclusion
as to what nature of order is required to be passed. At the same time the Director should avoid taking the stand that nothing further can be done as
the Act of 2011had been declared to be ultra vires in the mean time
6. The requirement be done by the Director within a period of two months from the date of receipt of the certified copy of the order.
7. Writ petition stands closed with the above observation.
