Point of Law : Issue relating to the claim of provincialisation of the service of (a) Sahidur Islam (petitioner), (ii) Abdur Rashid Sk (respondent no. 7), and (iii) Abual Hussain Sk (respondent no.8) be remanded to the Director of Elementary Education.

JUDGMENT :

Heard Mr. P.K. Deka, learned counsel for the petitioner. Also heard Mr. P.K. Borah, learned standing counsel for the Elementary Education Department, appearing for respondent nos. 1 to 3 and 5, Mr. S. Borah, learned standing counsel for respondent no. 4, Mr. P. Saikia, learned Government Advocate, representing respondent no. 6, as well as Mr. M.H. Ahmed, learned counsel for the private respondent nos. 7 and 8.

2) The case of the petitioner is that as per resolution no. 2 adopted in the meeting no. 38 dated 21.03.2008 by the Managing Committee, vide letter dated 21.03.2008 issued by the Headmaster & Secretary of the said school had appointed the petitioner as an H.S. Science Teacher of the West Gaspara Girls’ M.E. Madrassa. It is projected that as the petitioner was mainly teaching Social Studies. Despite recommendation made by the District Scrutiny Committee for provincialisation of his service against Social Studies subject, the Director of Elementary Education, Assam, (respondent no. 2) had issued the impugned order, thereby provincialising the service of 3 (three) Assistant Teachers, including the respondent nos. 7 and 8. Hence, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the impugned order dated 04.02.2021 (Annexure-7), issued by the respondent no.2, thereby provincialising the service of the respondent nos. 7 and 8 as an Assistant Teacher of the West Gaspara Girls’ M.E. Madrassa, for a direction to provincialise the service of the petitioner as Social Science Teacher on the basis of recommendation made by the District Scrutiny Committee (Annexure-5).

3) The learned counsel for the petitioner has submitted that as per the provisions of Section 3(1) of the Assam Education (Provincialisation of Services of Teachers and Re-organisation of the Educational Institutions) Act, 2017 read with Sections 19 and 25 of the Right of Children to Free and Compulsory Education Act, 2009 the respondent authorities ought to have provincialised the service of one full-time Headmaster as well as 4 (four) Assistant Teachers as the school has enrollment of more than 105 students. Therefore, it has been submitted that while issuing a direction upon the respondent authorities for appointing the petitioner, a suitable direction may also be made to the respondent authorities to provincialise the services of one full-time Headmaster as well as 4 (four) Assistant Teachers.

4) Per contra, the learned counsel for the respondent nos. 7 and 8 has made his submission in support of the interlocutory application and it is submitted that the petitioner has not come with clean hands and has mislead this Court to project as if he was appointed as a Social Studies teacher, which was not correct and therefore, it is submitted that the petitioner was not entitled to any relief in this writ petition. However, the learned standing counsel for the Elementary Education Department has submitted that owing to discrepancy in DISE data for academic year 2009-10 and 2020-21, the matter may be remanded to the Director of Elementary Education, Assam (respondent no.2) for a fresh decision.

5) While issuing a notice of motion by order dated 01.03.2021, as an interim measure, the Court had provided that the provincialisation of respondent nos. 7 and 8 be not given effect until further orders. Aggrieved by the said ad interim order, the respondent nos. 7 and 8 have filed an interlocutory application under Article 226(3) of the Constitution of India for vacating the said interim order. The said application was registered as I.A.(C) 1555/2021. The petitioner has contested the said interlocutory application by filing affidavit-in-opposition as well as additional affidavit.

6) Having heard the learned counsel for all the appearing parties, perused the following, viz., (i) writ petition, (ii) interlocutory applicat