The denial of graduate scale of pay to qualified Madrassa teachers, while granting it to others, violates Article 14 of the Constitution, constituting discrimination.

JUDGMENT :

Robin Phukan, J.

Heard Mr. M. Khan, learned counsel for the petitioners and Ms. D. Musahary, learned Standing Counsel for the Secondary Education Department.

2. In these petitions, i.e. WP(C) No. 3035/2023 and WP(C) No. 4353/2023, under Article 226 of the Constitution of India, the petitioners, namely, Abdul Hannan Laskar and Musarif Hussain Laskar have challenged the same common Order, No. ASE95/2022/218-A, dated 20.02.2023, passed by the Secretary to the Government of Assam, Department of School Education.

3. As a common question of law is involved in these two writ petitions and as agreed upon by learned Advocates of both sides, it is proposed to dispose of these two petitions, by this common judgment and order.

4. It is to be noted here that vide order dated 20.02.2023, the claim of the petitioners with regards to granting of graduate scale of pay, was rejected by the Department of School Education.

Background facts:-

5. The background facts leading to filing of these two writ petitions are briefly stated as under:-

“The petitioner in writ petition No. 4353/2023, namely, Musarif Hussain Laskar was initially appointed as Assistant Teacher for pre-senior section in Sonai Senior Madrassa in the district of Cachar, vide order dated 28.10.1984, in intermediate scale of pay. He joined the service on 11.11.1984. Thereafter, he obtained graduate degree in Arts from Assam University Silchar, in the year 1994. Thereafter, his service was shifted to senior section of the said Madrassa.

And the petitioner in writ petition No. 3053/2023, namely, Abdul Hannan Laskar was initially appointed as Assistant Teacher in Bhatirkupa Senior Madrassa in the district of Hailakandi, vide order dated 09.09.1996, and he joined on 12.09.1996. At the time of his appointment he was FM passed, under State Madrassa Education Board and thereafter, he had obtained graduate degree in Arts from Assam University Silchar.

Thereafter, under the provisions of Sections 3 and 5 of the Assam Madrassa Education (Provincialization) Act, 1995, 74 numbers of Senior Madrassas, including teaching and non-teaching staffs, who were functioning under the Deficit Scheme have been provincialised by an order dated 15.03.1996, w.e.f. 15.08.1994. Accordingly, the service of the petitioners, as Assistant Teacher in Sonai Senior Madrassa, Assistant Teacher in Bhatirkupa Senior Madrassa, in the intermediate scale of pay, had been provincialised.

Thereafter, vide order dated 18.12.2004, the scale of the petitioners was re-fixed for being graduate and upgraded to the graduate scale of pay, i.e. Rs. 3580 - 8750/-. Accordingly, the petitioners were provided graduate scale of pay, in view of notification, dated 30.12.1993 and also granted financial up-gradation, under the Assured Career Progression Scheme (ACPS).

Thereafter the petitioners got the said benefit and the same was extended in the report of 5 and 6 Pay Commission and subsequently, in the report of the 7 Pay Commission also such benefit was extended.

Thereafter, pursuant to an order of this Court dated 30.01.2014, passed in W.P(C) No. 3475/2008, the up-gradation of the petitioners from the intermediate scale of pay to the graduate scale of pay was cancelled. In the said writ petition, it was held that the teachers of Senior Madrassas are not entitled to the benefits of the Government notification, dated 30.12.1993, as the same is applicable only to the teachers of provincialised High/Higher Secondary schools.

The contention of the petitioners is that while notification, dated 30.12.1993, the services of incumbents in the Madrassa institutions was not provincialised and such provincialization took place only in the year 1995. And as such, there is no mention about the Madrassa institutions in the notification, dated 30.12.1993. This aspect of the matter along with the fact that the structure of Madrassa institution were effected as per the structure of Secondary Provincialised Schools, by extending similar benefits and the said poi