SYED MOHAMMAD ALI Vs. SYED SAIDUL ISLAM AND 9 ORS
LAWS(GAU)-2018-5-32
HIGH COURT OF GAUHATI
Decided on May 08,2018

SYED MOHAMMAD ALI Appellant
VERSUS
Syed Saidul Islam And 9 Ors Respondents

JUDGEMENT

Ajit Singh, C.J. - (1.) This intra court appeal is directed against the order dated 15.7.2015 passed by the learned Single Judge of this High Court, whereby he has allowed WP(C) No.5660/2013 of Respondent No.1 - Syed Saidul Islam.
(2.) There is one Moranjana Anchalik High Madrassa in Rangia, District Kamrup (Rural). It is also recognized in terms of Regulation for Recognition of High Schools and High Madrassas, 1988 (in short "Regulations, 1988"). Respondent No.1 is graduate in Science with subject combination of Botany, Zoology and Chemistry. He was appointed as Assistant Teacher (Science) on 29.8.1996 in the said Madrassa whereafter he joined on 2.9.1996. The appellant is also a graduate in Science with royal combination of subjects i.e. Physics, Chemistry and Mathematics. On 15.10.2000, he too was appointed in the same Madrassa i.e. after almost 4 years from the date of appointment of Respondent No.1. The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short "Act, 2011") was enacted to provincialise the services of the employees of the Venture Educational Institutions. Under this Act, the services of employees of the Venture Educational Institutions, on being provincialised, became the employees of the State Government and provincialisation of services could be carried out strictly on the basis of seniority. On 12.4.2013, the Director of Secondary Education (Respondent No.3) published the names of employees of the Madrassa eligible for provincialisation. In that list, the name of Respondent No.1 was shown eligible for provincialisaton as Assistant Teacher whereas the name of appellant was shown in the category of "excess teacher". Aggrieved, the appellant filed WP(C) No.2463/2013 challenging the validity of the list, which was disposed of by the learned Single Judge of this court vide order dated 10.3.2013 with a direction to reconsider his categorization as "excess teacher" and till then, provincialisation of the services of Respondent No.1 was stayed. Therefore, the Director of Secondary Education, thereafter, vide order dated 18.6.2013 directed for provincialising the services of appellant as Assistant Teacher (Science) in the Madrassa. Aggrieved, Respondent No.1 challenged the order dated 18.6.2013 in WP(C) No.5660/2013, which the learned Single Judge has allowed by the impugned order.
(3.) The learned Single Judge has held that Respondent No.1, being much senior to the appellant, he alone was entitled for provincialisation of his services. The learned Single Judge has also held that for the provincialisation of services, the Act, 2011 has not made any differentiation between the Assistant Teacher (Science) with combination of Botany, Zoology and Chemistry subjects and Assistant Teacher (Science) with royal combination of subjects, which is also obvious from the schedule wherein all the posts of Assistant Teacher (Science) are made to form one category. Not only this, the learned Single Judge has further held that seniority cannot be determined on the basis of the need for the service of teacher, who can teach Physics and Mathematics, as no such provision is made in the Act, 2011. In coming to these findings, the learned Single Judge has relied upon the decision of this Court rendered in WP(C) No.2803 of 2013 (Md. Latifur Rahman Choudhury vs. State of Assam), which holds the field till this date.;


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