The School Management Committee had the authority to terminate a teacher's service prior to provincialization notification; thus, the revocation of the cancellation order was in error.

JUDGMENT :

Kardak Ete, J.

Heard Mr. B.D. Das, learned senior counsel assisted by Mr. B. Purkayastha, learned counsel for the petitioner. Also heard Mr. A. Phukan, learned Standing counsel, Elementary Education Department for the State respondents and Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. H.R. Choudhury, learned counsel for the respondent No. 8.

2. By instituting this writ petition, the petitioner has assailed the order dated 15.11.2018, passed by the Commissioner & Secretary to the Govt. of Assam, Elementary Education Department, whereby, the cancellation of provincialisation order dated 11.05.2015 in respect of the respondent No.8 namely, Shahibur Rahman, is revoked and the petitioner is removed from service as Assistant Teacher of Amaitilla L.P. School under Karimganj District on the ground that the school management committee of the said school had terminated the service of the respondent No.8 vide resolution dated 27.04.2013, which is, in violation of the Section 6 of the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, (in short, Act of 2011) as after the provincialisation of an Educational Institution, the SMC loses its power to take any action against the teachers of provincialized school.

3. The facts of the case, in brief are that the petitioner was initially appointed as Assistant Teacher of Amaitilla L.P. School in the district of Karimganj on 10.02.2005 by the School Managing Committee (hereinafter “‘SMC” in short) and he continued in the said post without any break. The said school, on having been fulfilled the criteria for provincialisation of the services of its employees, has been brought under provincialisation, and accordingly, the services of the working employees have been regularized w.e.f. 01.01.2013.

4. The respondent No.8 was appointed as Assistant Teacher of the said school on 15.03.1994. However, when the respondent No.8 was found to be habitual absentee, the SMC adopted a resolution on 27.04.2013 and terminated his service, thereby, upgraded the petitioner to the post of second Assistant Teacher. It is contended that the Head Master of the school, having been regularized and the petitioner having been upgraded to the post of second Assistant Teacher, the petitioner is entitled to be regularized/provincialized his services as Assistant Teacher for the post of second Assistant Teacher. Though the District Scrutiny Committee, Karimganj, recommended the provincialisation of the service of the petitioner, the Director of Elementary Education by an order dated 21.01.2014 has provincialized the service of the respondent No.8. Aggrieved of the said provincialisation of the service of the respondent No.8, the petitioner approached the Court being WP(C) 1086/2014, which came to be disposed of by an order dated 17.03.2015, by which, the said writ petition was allowed, thereby, setting aside the order dated 21.01.2014 provincialising the service of the respondent No.8 as an Assistant Teacher of the said school and held that the respondent authority shall consider the petitioner for provincialisation of his service against the said post of second Assistant Teacher.

5. The respondent No.8 filed an appeal being WA 116/2015 against the order dated 17.03.2015 and the same came to be disposed of on 11.07.2016 by the Division Bench, which is reproduced herein below:-

“5. We find that the termination order of 27.4.2013 is challenged by Shahibu Rahman through the WP(C) NO.4492/2015 and that case is pending