Judgment & Order(Oral):

1. Heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. P.K. Borah, learned Standing Counsel, Elementary Education Department appearing for the respondents No. 1, 2 and 3 and Mr. K.U. Ahmed, learned counsel appearing for the respondents No. 5, 6 and 7.

2. Challenge made in this petition is to the notification dated 04.02.2021 issued by the Director of Elementary Education, Assam, whereby, the services of tutors against the Venture Lower Primary Schools and recognized Upper Primary Schools of 27 districts of Assam in accordance with the provisions of Assam Education (Provincialisation of Services of Teachers and Re-organization of Educational Institutions) Act, 2017 (The Assam Provincialisation Act, 2017, in short) have been provincialized, particularly provincialisation of services of the respondents No.6 and 7 namely, Sheikh Hanif Uddin and Sunar Uddin in respect of N.C. Kachumara M.E. Madrassa in the district of Barpeta.

3. The petitioners were appointed as Arabic and Hindi Teachers on 03.01.1988 and 28.03.1993 by the Managing Committee of N.C. Kachumara M.E. Madrassa in the district of Barpeta. The name of the petitioners and the respondent No.6 appeared in DISE Code of 2009-10 in the list of teaching staffs of the said M.E. Madrassa. However, the name of the respondents No.7 did not appear and does not have the DISE Code of 2009-10.

4. Pursuant to the Govt. Letter dated 30.01.2021 and in accordance with the provisions of the Assam Provincialisation Act, 2017, altogether 3309 tutors of Venture Lower Primary Schools and 6586 tutors of Recognized Upper Primary Schools of 27 districts of Assam was notified district wise with the name of the tutors whose services were eligible for provincialislation as per the Assam Provincialisation Act, 2017 by the Director of Elementary Education, Assam. In the notification, the name of the respondent No.6 appeared in SL No. 204 for provincialisation as tutors of N.C. Kachumara M.E. Madrassa and the name of respondent No.7 appeared at Serial No. 203 and accordingly, the services of the respondents No.6 and 7 have been provincialised as tutors of the said N.C. Kachumara M.E. Madrassa.

5. It is the contention of the petitioners that they having been appointed on 03.01.1988 and 21.03.1993 as language teachers in the N.C. Kachumara M.E. Madrassa and the respondent No.6 having been appointed in the year 2006 and the respondent No.7 although appears to have been appointed on 01.03.2010, are much junior to the petitioners, therefore, both the respondents No. 6 and 7 ought not to have been considered for provincialisation as the seniority of the petitioners has been totally ignored and no consideration was made by the respondent authorities in terms of the provision of the Assam Provincialisation Act, 2017 as for additional teachers/tutors, the DISE Code of the teachers are mandatory and, the seniority position cannot be ignored.

6. Mr. K. Bhuyan, learned counsel for the petitioners while referring to the list of details of the teaching staff, submits that altogether there are six teachers including the respondent No.6. From SL No. 1 to 3, have been provincialised in terms of the provisions of the Assam Provincialisation Act, 2017 as tutors for Science and Mathematics, Social studies and Language subjects. In terms of the proviso to Section 3 (1)(xi) of the Assam Provincialisation Act, 2017, for additional post, it is to be considered in accordance with the norms and standard stipulated under Section 19 and 25 of Right of Children to Free and Compulsory Education Act, 2009. He submits that as a rightful and fair consideration, the petitioners case ought to have been considered and recommended for provincialisation for the additional post of tutors as the petitioners are much senior to the respondents No. 6 and 7, as the petitioners having been appointed in the year 1988 and 1993 and the respondents No. 6 and 7 being appointed in 2006 and 2010. Moreover, the name of the respondent No.7 does not appear in the list of teaching staff of N.C. Kachumara M.E. Madrassa as the respondent No.7 were not appointed at the relevant point of time, therefore, no DISE code could be allotted to him.

7. He submits that the provincialisation of the respondents No. 6 and 7 are in total violation of the provisions of Section 2(za) and 3(1)(xi) of the Assam Provincialisation Act, 2017 as the respondent authorities have recommended provinciaisation of the services of the respondents No. 6 and 7 as tutors without there being DISE Code particularly to respondent No.7. The respondent No.6 though having a DISE Code, is junior to the petitioners and therefore, the provincialisation of respondents No. 6 and 7 are liable to be set aside and direction may be issued to the respondent authorities to provincialise the service of the petitioners as tutors.

8. Mr. P.K. Borah, learned standing counsel, Elementary Education Department submits that on the basis of recommendation of the District Scrutiny Committee wherein four teachers including the respondent No.6, and after the recommendation of the State Level Scrutiny Committee, finally for five teachers, including the respondents No. 6 and 7, the services of the Respondent Nos. 6 & 7 have been provincialised as tutors of the N.C. Kachumara M.E. Madrassa.

9. He submits that although the respondents No. 6 and 7 were appointed in the year 2006 and 2010, who are junior to the petitioners, they have the qualification of B.A. Therefore, preference was given over the petitioners as the petitioners were appointed as language teachers. As per the provisions of the Assam Provincialisation Act, 2017 one teacher, who is senior to the petitioners was appointed as language teacher. The provincialisation of the services of the respondents No. 6 and 7, as tutors, is totally in accordance with the proviso to Section 3(1)(xi) of the Assam Provincialisation Act of 2017 as additional teachers for teaching all subjects as the respondents No. 6 and 7 are having the qualification of BA.

10. He submits that the petitioners are Arabic and Hindi teachers and their names were not recommended by the District Scrutiny Committee and therefore, the State Level Scrutiny Committee as well as Joint committee could not recommend the names of the petitioners for provincialistion of their services as tutors as the District Scrutiny Committee has not recommended Arabic and Hindi teachers in most of the upper primary schools. He submits that the recommendation of the District Scrutiny Committee against the name of respondent No.7 could not be traced out from the record and therefore, although his service was provincialised as tutor, his wages are not released and the authorities have decided to conduct an enquiry in that regard.

11. Mr. K.U. Ahmed, learned counsel for the respondents No. 5, 6 and 7 while adopting the submissions advanced by the learned Standing Counsel, submits that since the petitioners are only the language teachers being Arabic and Hindi teachers, their cases could not be recommended for provincialisation by the District Scrutiny Committee as tutors as has been done in all other schools in the District of Barpeta. The respondents No. 6 and 7 being graduate, have been recommended and provincialised as tutors strictly in terms of the Assam Provincialisation Act, 2017 and the Right of Children to Free and Compulsory Education Act, 2009, therefore, the petitioners have no right for provincialisation in place of the respondents No. 6 and 7 and as such, the writ petition is liable to be dismissed.

12. I have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record.

13. The petitioners were appointed in the year 1988 and 1993 respectively as Arabic and Hindi teacher by the Managing Committee of the N.C. Kachumara M.E. Madrassa. The respondents No. 6 and 7 were appointed as Language and Social Studies teachers in the year 2006 and 2010. The petitioners having been appointed much earlier to the respondent No.6 and 7, are senior to the respondents No. 6 and 7.

14. Vide notification issued by the Director of Elementary Education, 5 (five) teachers were provincialised including the respondents No. 6 and 7, as tutors in respect of N.C. Kachumara M.E Madrassa.

15. Perusal of the records shows that the District Scrutiny Committee has recommended 4 (four) teachers for provincialisation in terms of Section 3(1)(xi) of the Assam Provincialisation Act, 2017, wherein, the name of the respondent No.6 appeared at SL No.4. However, the State Selection Committee appears to have included the respondent No.7 although there was no recommendation from the District Scrutiny Committee, thereby, recommending altogether five teachers in respect of N.C. Kachumara M.E. Madrassa. It is not discernible from the record as regards the criteria and basis for consideration for provincialisation of the services of respondents No. 6 and 7 as tutors. It is on record that the provincialisation of respondent No.7 is under enquiry as reflected from the stand of the State respondents.

16. The respondents No. 6 and 7 appears to have the qualification of B.A., who have been appointed as Language teacher and Social Studies in the year 2006 and 2010, therefore, the petitioners, irrespective of having the qualification of HSSLC, are senior to the respondents No. 6 and 7. Although the provisions of the Assam Provincialisation Act, 2017 does not appear to have lay down any specific criteria for appointment of additional teachers/tutors except that same would be in accordance with the norms and standards stipulated in Schedule of Section 19 and 25 of Right of Children to Free and Compulsory Education Act, 2009, in my considered view, the seniority of the teachers ought not have been ignored while considering the provincialisation of the additional teachers.

17. Record does not reveal that the case of the petitioners were considered and rejected by the District Scrutiny Committee and State Level Scrutiny Committee, as no consideration appears to have been made while recommending the respondents No. 6 and 7.

18. Section 2(za) of the Assam Provincialisation Act, 2017 provides that venture M.E. School including M.E. Madrass means Upper Primary School imparting education to Class VI upto VIII and established by the people of the locality prior to 01.01.2006, which has received recognition from the competent authority on or before 01.01.2006 and captured in the DISE Code up to 2009-10 and the services of the teachers have not been provincalised under any Act enacted by the State Legislature, provided that DISE Code shall have to be issued on or before 2009-10 and DISE Code issued thereafter, shall not be considered for the purpose of provincialisation of services of any employee of the institution.

19. Section 3(1)(xi) lays down that in case of Venture Upper Primary School, there shall be minimum three teachers or tutors atleast one teacher each for Science and Mathematics, Social Studies and Languages provided that for additional post, same shall be considered in accordance with the norms and standard of the Right of Children to Free and Compulsory Education Act, 2009.

20. A bare reading of the above provisions reflects that the school has to be captured in the DISE Code upto 2009-10 and DISE Code issued thereafter shall not be considered for the purpose of provincialisation of the services of any employee. It further reflects that in case of Venture Upper Primary School, minimum three teachers or tutors in respect of Science and Mathematics, Social Studies and Languages are to be provincalied provided that for additional posts, same shall be considered in accordance with the Right of Children to Free and Compulsory Education Act, 2009,

21. In the present case, the respondent No.7 appears to have been not issued the DISE Code up to 2009-10 and therefore, the case of the respondent No.7 could not have been considered for provncialisation that too when no recommendation was made by the District Scrutiny Committee. In respect of respondent No.6, although he was issued with DISE Code, he being junior to the petitioner, his case ought to have been considered along with the petitioners considering the fact that the petitioners are much senior to him. It is admitted position that the case of the petitioners have not been considered either by the District Scrutyy Committee or State Level Scrutiny Committee for provincialisation as tutors by ignoring the seniority of the petitioners, which this Court is of the considered view that non consideration of the petitioner for provincialisation unless otherwise barred by the provision of the Act of 2017, would be illegal as the petitioners could show that they are entitled to be considered in terms of the appointment and the seniority position.

22. It is noticed that one Surman Ali Ahmed, a teacher in English Language was appointed on 02.05.1985, Hasan Nurul Islam, a teacher of Science & Mathematics was appointed on 07.03.95 and Jilur Rahman, a Social Studies teacher was appointed on 02.05.1985 and their services have been provincialied under Section 3(1) (xi) of the Assam Provincialisation Act, 2017 as Language, Science and Mathematics and Social Studies teachers respectively.

23. The provicialisation of the respondents No. 6 and 7 appears to have been made by invoking the proviso to Section 3(1)(xi) of the Assam Provincialisation Act, 2017. As noted above, the respondents No. 6 and 7 having been appointed on 20.01.2006 and 01.03.2010 and the petitioners having been appointed 03.01.1988 and 28.03.1993 in N.C. Kachumara M.E. Madrassa, although as Arabic and Hindi teachers, are senior to the respondents No. 6 and 7.

24. The respondents No. 6 and 7 having been provincvialised not in any specific subject and the petitioners being senior to both the respondents No. 6 and 7, the respondent authorities ought to have considered the case of the petitioners in terms of the proviso to Section 3(1)(xi) of the Assam Provincialisation Act, 2017, and having not been done, I am of the considered view that the provincialisation of the respondent No.6 & 7 as tutors apparently invoking the proviso to Section 3(1) (xi) of the Assam Provincialisation Act, 2017 is not sustainable, that too, in respect of respondent No.7 who have not been recommended by the District Scrutiny Committee as the proviso to Section 3(1)(xi) of the Assam Provincialisation Act, 2017 appears to have not been substantially complied with.

25. For the foregoing reasons, I am of the considered view that the notification dated 04.02.2021 issued by the Director of Elementary Education, Assam in respect of provincialisation of the respondents No. 6 and 7 as tutors in N.C. Kachumara M.E. Madrassa warrants interference. Accordingly, the provincialisation of the respondent No.6 and 7 are set aside and quashed. However, considering that the respondents No. 6 was recommended by the District Scrutiny Committee and the State Level Scrutiny Committee having the qualification of BA, issued with DISE Code, it would serve the cause of justice if the respondent authorities are directed to re-consider the cases of the petitioners as well as the respondent No.6 & 7 for provincialisation as tutors in respect of the N.C. Kachumara M.E. Madrassa strictly in accordance with the provisions of the Assam Provincialisation Act, 2017 within a period of 3 (three) months from today. It is directed accordingly. It is however, made clear that consideration of the respondent No.7 would be subject to the result of enquiry which is stated to have been already initiated.

26. In terms of the above, the writ petition stands disposed of.