Safiya Malik

The High Court of Gauhati Single Bench of Justice Sanjay Kumar Medhi dismissed a writ petition seeking the provincialisation of services under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011. The Court held that the petitioner was not entitled to relief under the repealed Act and further noted the absence of concurrence for Hindi (Major) or Elective Hindi, which the petitioner relied upon. It directed that the petitioner’s current position as Tutor under the Assam Education Act, 2017 remains undisturbed and that the petitioner could still benefit from the provisions available in the 2017 Act.

The petitioner, appointed on 08.12.1997 as a Hindi Lecturer at Barkhetri College, filed the writ petition seeking provincialisation of her services under the 2011 Act. At the time of appointment, the college was a venture institution. The Government had previously granted concurrence for TDC Part-I and Part-II courses including Hindi, vide communications dated 20.01.1995 and 12.09.1997.

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On 16.12.2009 and 10.08.2012, Guwahati University made representations for granting concurrence for Elective Hindi and Hindi (Major) in TDC 1st year, respectively. Meanwhile, the college principal submitted a list to the Director of Higher Education on 19.12.2011 recommending provincialisation under the 2011 Act, with the petitioner listed at Sl. No. 16.

Subsequently, the Director issued a communication on 07.04.2014, recognizing the petitioner's seniority from 11.12.1997, placing her at Sl. No. 14. Another candidate, Ashok Das, was placed above her at Sl. No. 11 in the same subject.

The petitioner alleged that individuals without NET/SLET/M.Phil/Ph.D qualifications in other colleges had received provincialisation, while her claim was denied without valid reason. She cited instances from Beltola College, G.L. Choudhury College, Dhubri Girls’ College, and Rukasen College.

Counsel for the petitioner argued that despite long-standing service, she was denied benefits extended to others in similar circumstances. Reference was made to the High Court’s decision in WP(C)/4644/2014 (Kamal Sajati & Ors) dated 25.05.2016, where directions for provincialisation were given. It was argued that despite the repeal of the 2011 Act, similar relief was granted.

The petitioner was appointed as a Tutor under the 2017 Act on 05.02.2021, drawing a salary of Rs. 27,000, while counterparts with provincialised services received significantly more.

The State contested the petition, submitting that the 2011 Act had been struck down by the Hon’ble Division Bench on 23.09.2016 in WP(C)/3190/2012. Consequently, the petitioner could not seek benefit under a repealed statute. It was further argued that the petitioner’s concurrence for Hindi (Major) or Elective Hindi had never been granted by the Government.

The State stated the statutory requirement that for a Venture Degree College to be eligible for provincialisation, it must have received concurrence prior to 01.01.2006. In the petitioner's case, this requirement was unmet.

It was pointed out that under the 2011 Act, only one Lecturer per MIL subject was eligible for provincialisation. Ashok Das, being senior, was provincialised, not the petitioner.

The State cited the decision in WA 283/2019 (Purnabati Brahma v. State of Assam), wherein the Court held that no vested right accrued under the 2011 Act for non-provincialised teachers. The doctrine of negative equality was also invoked, noting that illegality in one case could not justify relief in another.

The Court recorded, "The Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011... and all rules, orders, notifications issued thereunder, shall stand repealed" by the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017.

"As per the Act of 2011... only one teacher is eligible for provincialisation of service", the Court noted while referring to the table showing Ashok Das as the senior Hindi Lecturer.

Regarding the submitted concurrences, the Court stated, "A bare look with the photocopy annexed would show that the concurrence was given only to MIL." There was no concurrence for Elective Hindi or Hindi (Major).

In response to allegations of discrimination, the Court observed, "Even if some benefits are given to any candidate in aberration of law, the same cannot go as a mandamus from the Court."

Citing the judgement in Purnabati Brahma, the Court observed, "The very declaration by a Court that a statute is unconstitutional obliterates the statute entirely as though it had never been passed."

On negative equality, the Court recorded, "There is no concept of negative equality... if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well."

It also noted, "The doors of the petitioner have not been finally closed," referencing the provision under the 2017 Act allowing Tutors to acquire NET/SLET qualifications for future eligibility to higher scales.

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On the inclusion of respondent no. 6, the Court observed, "Respondent No. 6 has been unnecessarily made a party... both the subject as well as the position in the seniority list are not relevant at all."

On the petitioner's reliance on the Arati Rani Mazumdar case, the Court clarified, "The facts... are wholly distinguishable from the facts of the present case."

The Court directed, "No relief can be granted to the petitioner and accordingly the writ petition is dismissed."

It further stated, "Though the petitioner is presently rendering her services as Tutor under the 2017 Act... the Act itself providing for an avenue to get the UGC scale... this Court is of the opinion that the doors of the petitioners have not been finally closed."

Advocates Representing the Parties:

For the Petitioners: Shri R.C. Saikia, Senior Advocate, Ms. K. Saikia, Advocate, Ms. R. Bharali, Advocate, Ms. M.M. Das, Advocate

For the Respondents: Shri K. Gogoi, Standing Counsel, Higher Education Department; Shri S. Muktar, Advocate

Case Title: Smt. Gita Rabha v. The State of Assam and Ors.

Neutral Citation: GAHC010253712014

Case Number: WP(C)/6411/2014

Bench: Justice Sanjay Kumar Medhi