Sunil Rajbongshi vs State Of Assam And Ors

Heard Ms. R. Baruah, learned counsel for the petitioner. Also heard Mr. R. Mazumder, learned counsel for the Secondary Education Department.

The petitioner was appointed as a Grade-IV staff on an honorary basis as per the resolution N.3 of the managing committee of Sankardev Balika

Vidyapith High School on 15.11.1993. The petitioner states that when teaching and non-teaching staff of Sankardev Balika Vidyapith High School

were provincialised under the Assam Venture Education Institutions (Provincialisation of Services) Act (in short Act of 2011), the services of the

petitioner ought to have been provincialised but for reasons unknown it was not done.

Subsequent to the provincialisation process, the Sankardev Balika Vidyapith High School was merged with Sankardev Balika Vidyapith M.E.

School under the Sikshakhetra scheme for amalgamation of school. The amalgamated school has one provincialised employee who was carried

forward from the Grade-IV employee of Sankardev Balika Vidyapith M.E. School.

In the resultant situation, the Grade-IV post for the Sankardev Balika Vidyapith High School remained not provincialised.

The petitioner makes a claim that his service be provincialised against the vacant Grade-IV post which was carried forward in the amalgamated

school from the earlier Sankardev Balika Vidyapith High School.

As the required consideration was not made, the petitioner preferred WP(C) 4756/2018 which was disposed of by the order dated 08.02.2019

requiring the Director of Secondary Education, Assam to consider the matter and pass a reasoned order thereof. Pursuant thereof, the order dated

16.10.2019 has been passed by the Director of Secondary Education which is impugned in this petition.

By the order dated 16.10.2019, the claim of the petitioner for provincialisation stood rejected for the reason that according to the Director, a high

school has only one post of Grade-IV employee and therefore, the petitioner being the second person claiming for such pronvincialisation the same

would not be maintainable.

Having gone into the facts of the matter as indicated, we are of the view that certain relevant facts were not considered by the Director.

In the facts and circumstance of the present case where two schools were merged both having one post of Grade-IV each and in respect of one of

the school, the Grade-IV post remains vacant, it cannot be understood that the vacant post of Grade-IV had disappeared after the amalgamation of

the school or because the amalgamated school is called to be a high school.

The situation would have to be considered from the aspect that had both the posts being filled up prior to the amalgamation, even after the

amalgamation the school would have had two grade-IV employees.

From the said point of view, the view taken by the Director in the order dated 16.10.2019 is contrary in the facts and circumstance of the present

case.

Accordingly, the order dated 16.10.2019 is set aside. The matter is now remanded back to the Director for a fresh consideration by taking into

account that after the amalgamation, two posts of Grade-IV which existed in the two schools prior to the amalgamation would remain exist and one of

the post would be vacant.

The petitioner’s claim for pronvicialisation against the said vacant post be done under the appropriate provision of law.

The requirement be done within two months from the date of receipt of the certified copy of the order.

Writ petition stands disposed of.