IMPORTANT POINT
The revival of provincialisation orders for teachers is permissible following the enactment of new legislation that addresses the rights of employees previously affected by a struck-down statute.

JUDGMENT :

(Kardak Ete, J.)

Heard Mr. P.J. Saikia, learned senior counsel assisted by Mr. R.S. Mishra, learned counsel for the appellant. Also heard Mr. J. Roy, learned senior counsel assisted by Mr. R. Hazarika, learned counsel for the respondents No.5 and 6 and Mr. N.J. Khataniar, learned counsel for the State Respondents.

2. This Intra-Court Appeal is preferred against the judgment and order dated 22.11.2017 passed by the learned Single Judge in WP(C) No.3306/2017, whereby the writ petition filed by the appellant/writ petitioners has been dismissed.

3. The case, in brief, is that the appellant and one Sri Kamala Kanta Phukan were appointed as Assistant Teachers (Arts) in Dakhin Ghilamara High School (Venture), Dhakuakhana in the district of Lakhimpur, Assam on 18.02.1998 and 25.01.1996 respectively. The respondent No. 5 and 6 were also appointed as Assistant Teachers in the same School and a seniority dispute has arisen at the time of process for provincialisation of the services of the Teachers. The seniority dispute of the appellant and Sri Kamala Kanta Phukan with the respondent No. 5 and 6 has been settled by the respondent authority vide order dated 01.08.2014 pursuant to the order and direction dated 13.05.2014 passed in WP(C) No.2876/2013 & WP(C) No.36/2013, whereby, the appellant and Sri Kamala Kanta Phukan were declared seniors to the respondent. No. 5 and 6. Thereafter, the services of the appellant and Shri Kamala Kanta Phukan were provincialised vide order dated 14.08.2014 as Assistant Teachers (Arts) in the said school under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (hereinafter referred to as the Act of 2011 in short).

4. The respondents No.5 and 6 have filed the writ petition being WP(C) 4747/2014 challenging the provincialisation of the appellant and Sri Kamala Kanta Phukan as the respondents No.5 and 6 were left out from provincialisation. Vide order dated 17.09.2014 the learned Single Judge by an interim order directed not to provincialise the services of the appellant and Sri Kamala Kanta Phukan till the returnable date. Pursuant to the said interim order passed in WP(C) 4747/2014 the respondent No.2 by an order dated 16.10.2014 withdrew the provincialisation order dated 14.08.2014, by which, the services of the appellant and Sri Kamala Kanta Phukan were provincialised under the Act of 2011. Being aggrieved, the appellant and Sri Kamala Kanta Phukan had filed WP(C) 513/2015, challenging the order dated 16.10.2014.

5. During the pendency of the aforementioned two writ petitions, the Division Bench of this Court in WP (C) No. 5825/2012 ( Chandan Kr. Neog and Ors. Vs. State of Assam ) and other connected writ petitions, vide Judgement and Order dated 23.09.2016, has held the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 constitutionally invalid. In view of such development, the learned Single Judge vide common order dated 31.10.2016 dismissed the two writ petitions i.e. WP(C) 4747/2014 filed by the respondents No.5 and 6 and WP(C) 513/2015 by the appellant and Sri Kamala Kanta Phukan on the ground that no live issue survives for adjudication in those two writ petitions.

6. The State Government filed petition for review of the Judgement and order dated 23.09.2016. After consideration of the Review Petition No.167/2016 filed by the State respondents, the Division Bench vide order dated 02.01.2017, has disposed of the same by holding that the rights of the employees who have been benefited under the struck down statute can be taken care of by giving retrospective effect to the proposed legislation, if the legislature so decides. It was ordered that, till then, the services of the provincialised category and their status as government employees shall not be disturbed and they will continue to receive all the benefits which they are getting under the Act of 2011, since struck down by the judgment under Review.

7. Thereafter, the State h