Point of Law : A teacher who acquires required qualification within a period of five years from date of his/her order or provincialisation would be entitled to the pay and allowance that of a teacher with effect from the date of acquiring such qualification.

JUDGMENT :

Heard Mr. B P Borah, learned counsel for the petitioners. Also heard Mr. S M T Chistie, learned counsel for the respondents no. 1, 2, 5, 6, 7, 8, 9, 10 and 11 being the authorities under the Secondary Education Department, Government of Assam as well as Mr. I Alom, learned counsel for the respondents no. 3 and 4 being the NCTE.

2. The 23 (twenty three) petitioners herein are subject teachers in different Senior Secondary Schools/Higher Secondary Schools in the various districts of the State and by the order dated 04.02.2021 of the Director of Secondary Education, Assam their respective services were provincialised as tutors.

3. Under Section 2(u) of the Assam Education (Provincialisation of Services of Teachers and Re-Organisation of Educational Institutions) Act, 2017 (in short, the Act of 2017) a tutor is defined to mean and include Teachers, Assistant Teachers, Classical Teachers, Lecturers, Assistant Professors, Associate Professors, Professors, Principal, Vice-Principal, Demonstrator, Headmaster, Assistant Headmaster, Superintendent, Assistant Superintendent in a provincialised educational institution under the Act of 2017 who are not eligible for provincialisation of their services and whose services cannot be provincialisation against the post of teacher under the Act of 2017 because of lack of educational and professional qualification prescribed under the Right of Children to Free and Compulsory Education Act, 2009, National Council for Teachers Education Act, 1993, University Grants Commission Act, 1956 and the relevant rules and regulations framed thereunder, as the case may be. In other words, we have to understand that a person whose service was provincialisation in the aforesaid manner, but such person does not have the requisite qualification for a teacher, his/her service is provincialised as a tutor.

4. Further Section 6 of the Act of 2017 provides that the service of the teachers in a Venture Educational Institute from the primary level up-to the degree level shall be considered for provincialisation against the post of teacher subject to fulfillment of eligibility criteria relating to educational and professional qualification as laid down in the Right of Children to Free and Compulsory Education Act, 2009, National Council for Teachers Education Act, 1993, the Assam Secondary Education (Provincialised) Service Rules, 2003, as amended in 2012 and the University Grants Commission Act, 1956. In other words, it has to be understood that if a given person has the required qualification prescribed in the four Acts, such person would be provincialised as a teacher and if they do not have the necessary qualification, they would be provincialised as a tutor.

5. Clause 6 of the order dated 04.02.2021 by which the petitioners were provincialised provides that any tutor who had already acquired the qualification on the date of his/her provincialisation would be entitled to the pay and allowance of a teacher from the date of issuance of such appointment order. It further provides that a teacher who acquires the required qualification within a period of five years from the date of his/her order or provincialisation would be entitled to the pay and allowance that of a teacher with effect from the date of acquiring such qualification.

6. Clause 6 of the order dated 04.02.2021 in our view is consistent with the provision of Section 2(u) and Section 6 of the Act of 2017 and a conjoint reading thereof makes it discernable that any person who had the acquired qualification of a teacher on or prior to the date of provincialisation would be entitled to the pay and allowances of a teacher from the date of provincialisation and in respect of those persons who subsequently acquired the qualification of a teacher, the pay and allowances as a teacher would be paid from the date of acquiring such qualification.

7. In the instant case, it is the case of the petitioners that on 04.02.2021 i.e. the date on which their services were p