The main legal point established is that the qualification requirement for provincialisation under the Act of 2011 should be met at the time of consideration, not necessarily at the time of initial appointment.

JUDGMENT

Achintya Malla Bujor Barua, J. - Heard Mr. A.K. Sarma, learned counsel for the petitioner. Also heard Mr. N.J. Khataniar, learned counsel for the respondents no. 1, 2, 3 and 5 in the Elementary Education Department of Government of Assam, Mr. S.R. Barua, learned counsel for the respondent no. 4 being the District Scrutiny Committee of Barpeta district represented by the Deputy Commissioner and Mr. D.K. Roy, learned counsel for the Secondary Education Board of Assam and Assam Higher Secondary Education Council.

2. The petitioner Sri Muzammil Hoque was appointed as an Assistant Teacher in the Madhya Kalaha Bhanga Balika L.P. School in the Barpeta district on 07.04.2008. On the date when he was appointed as an Assistant Teacher the petitioner did not have the qualification of being HSLC passed but he had appeared in the HSLC examination at that stage and ultimately he passed the HSLC examination on 27.05.2008. Later on the petitioner also passed his Higher Secondary examination on 26.05.2010.

3. The claim of the petitioner for provincialisation in the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (in short, Act of 2011) was given a consideration by the District Scrutiny Committee of Barpeta district where a conclusion was arrived that the petitioner was found qualified as per norms. Section 4(3) of the Act of 2011 inter-alia provides that the services of a teaching or non-teaching employee in a Venture Educational Institution upto higher secondary level shall be considered for provincialisation, only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment.

4. Accordingly, it has to be understood that the District Scrutiny Committee had arrived at its conclusion that the petitioner did satisfy the requirement of Section 4(3) of the Act of 2011. Subsequently, the Commissioner and Secretary to the Government of Assam in the Elementary Education Department issued a communication dated 26.03.2013 addressed to the Accountant General, Assam wherein it was provided that the service of some of the teachers whose names were included at Annexure-A to the said communication be not provincialised and the posts sanctioned for the purpose be kept vacant. In the accompanying Annexure-A to the communication dated 26.03.2013, the name of the petitioner Sri Muzammil Hoque appears and the reason for not provincialising his service has been stated to be 'under qualified'. Consequent thereof, the order 24.03.2015 was passed by the Director of Elementary Education Department of Assam by which the benefit of provicialisation meted to the petitioner stood withdrawn as his name was included in the Annexure-A to the communication dated 26.03.2013. Being aggrieved, the present writ petition is instituted.

5. The reason for withdrawing the provincialisation of the petitioner that he was found to be under qualified has to be examined from the aspect whether the petitioner did meet the requirement of Section 4(3) of the Act of 2011.

Section 4(3) of the Act of 2011 is extracted as below:

"(3) The services of a teaching or non-teaching employee in a Venture Educational Institution upto higher secondary level shall be considered for provincialisation, only if they have the requisite academic and professional qualifications prescribed by the relevant Rules at the time of their initial appointment ..."

6. A reading of the said provisions goes to show that in order to be qualified for provincialisation the incumbent concerned must have the requisite academic and professional qualification prescribed by the relevant Rules which were in force at the time of their initial appointment. The petitioner was admittedly appointed on 07.04.2008 and as on 07.04.2008, the academic qualification as prescribed in the Assam Elementary Educational (Provincialisation) Rules, 1977 (in short, Act of 1977) was in force. The academic qualification prescribed in the