Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 2 Ors on 7 March, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/20
GAHC010040072021
2025:GAU-AS:2409
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1694/2021
KETEKIBARI HIGH SCHOOL AND 11 ORS.
REP. BY THE HEADMASTER, SRI KANAK CH. DAS, S/O. LT. JOGEN CH.
DAS, R/O. VILL. KETEKIBARI, P.O. BARAMBAI, P.S. HAJO, DIST. KAMRUP
(R), ASSAM.
2: KANAK CH. DAS
S/O. LT. JOGEN CH. DAS
VILL. ATHGAON
P.O. HINGULI
P.S. KAMALPUR
DIST. KAMRUP (R)
ASSAM.
3: MATI RAM DEKA
S/O. LT. CHANDI RAM DAS
VILL. KETEKIBARI
P.O. BARAMBAI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM.
4: BASANTA KR SARMA
S/O. RAMESH CH SARMA
VILL. DWIGUN PAR
P.O. BORUAJANI
P.S. KAMALPUR
DIST. KAMRUP (R)
ASSAM.
5: LAKSHESWAR DAS
S/O. LT. LOKNATH DAS
Page No.# 2/20
VILL. DWIGUN PAR
P.O. BORUAJANI
P.S. KAMALPUR
DIST. KAMRUP (R)
ASSAM.
6: HAREN DAS
S/O. LT. DEBEN DAS
R/O. VILL. KSUDRA DADHI
P.O. GERUA
P.S. HAJO
DIST. KAMRUP (R)
ASSAM.
7: MAKHAN KALITA
D/O. LT. LALIT KALITA
VILL. MALONG
P.O. PUB BORKA
P.S. KAMALPUR
DIST. KAMRUP (R)
ASSAM.
8: HARIN CH. PATOWARY
S/O. LT. LALIT CH. PATOWARY
VILL. KETEKIBARI
P.O. BARAMBAI
P.S. MARAMBAI
DIST. KAMRUP (R)
ASSAM.
9: MD MERAJUL ISLAM
S/O. LT. ACHANUDDIN AHMED
VILL. BARAMBAI
P.O. BARAMBAI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM.
10: DILIP RAM HALOI
S/O. DURGA RAM HALOI
VILL. CHORABAI
P.O. KARIA
P.S. HAJO
DIST. KAMRUP (R)
ASSAM.
11: BHARAT CH. PATOWARY
S/O. LT. LALIT CH. PATOWARY
Page No.# 3/20
VILL. KETEKIBARI
P.O. BARAMBAI
P.S. BARAMBAI
DIST. KAMRUP (R)
ASSAM.
12: NARESHWAR DAS
S/O. BHUMIDHAR KALITA
VILL. KETEKIBARI
P.O. BARAMBAI
P.S. HAJO
DIST. KAMRUP (R)
ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
(SECONDARY) DEPTT., DISPUR, GUWAHATI-781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE INSPECTOR OF SCHOOLS
KAMRUP (R) DISTRIC CIRCLE
AMINGAON ASSAM
GUWAHATI-31.
4:THE CHAIRMAN
STATE LEVEL SCRUTINY COMMITTEE
KAHILIPARA
GHY- 19
ASSAM.
5:THE DEPUTY COMMISSIONER-CUM-CHAIRMAN
DISTRICT LEVEL SCRUTINY COMMITTEE
KAMRUP (R)
AMINGAON
PIN- 781031
Page No.# 4/20
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
For the petitioners : Mr. R Ali. ... Advocate.
For the respondents : Mr. B Kaushik
… SC, Secondary Education Department
Date of hearing : 03.03.2025
Date of Judgment : 07.03.2025
JUDGMENT AND ORDER (CAV)
1. Heard Mr. R Ali, learned counsel for the petitioners. Also heard Mr. B
Kaushik, learned counsel for the Secondary Education Department.
2. The petitioners’ case in brief is that that the people of Baramboi and
nearby villagers established the Ketekibari High School in the year 1987 to
impart education to the children of the villagers. The Managing Committee
appointed the Headmaster and other teaching and non-teaching staff, which
was approved by the Inspector of Schools. The School obtained opening
permission on 06.12.1989 from the Deputy Secretary, Government of Assam,
Education Department and got recognition on 22.05.2007 from the Secretary,
Board of Secondary Education, Govt. of Assam. The School fulfilled all criteria
which was required for provincialisation. As such, the petitioners were getting
financial assistance from the Govt. of Assam.
3. The Govt. of Assam decided to provincialise all the venture schools under
the Assam Venture Institutions (Provincialisation of Services) Act, 2011 and
Page No.# 5/20
directed the concerned Schools to submit all relevant documents before the
authority to scrutinize the same. Accordingly, the petitioners submitted all the
required documents before the concerned authority, but the authority declared
the petitioners school as not eligible for provincialisation, as less number of
students appeared in the HSLC examination. The petitioners submitted a
representation for re-examination of records. Accordingly, as per the direction of
the Director of Secondary Education, the petitioners submitted all relevant
documents before the authority concerned. The Inspector of Schools, Amingaon
re-examined the records on 10.08.2013. After scrutiny of all documents, the
Inspector of Schools submitted a report to the Director of Secondary Education,
Assam. On the basis of report submitted by Inspector of School, the Director of
Secondary Education, Assam declared the petitioner school as eligible for
provincialisation vide notification dated 27.08.2013. Though the authority
prepared a list of 466 schools for provincialisation, the Director of Secondary
Education, Assam forwarded a list of only 462 schools out of 466 schools and
dropped the petitioners’ school from the list of Schools to be provincialised.
4. The petitioners immediately approached the Director of Secondary
Education, who sent a fresh proposal on 01.07.2014 for provincialisation.
However, the Govt. of Assam provincialised 461 nos of schools on 22.09.2014,
by dropping 4 schools including the petitioners’ school. As such, the petitioners
again submitted representation dated 17.09.2015 for provincialisation but the
same was kept pending by the authorities. As the petitioners’ representation
dated 17.09.2015 for provincialisation was not being decided by the authorities,
the petitioners filed WP(C) 2588/2016.
5. WP(C) 2588/2016 was disposed of with the consent of the parties, vide
Page No.# 6/20
order dated 29.04.2016, by directing the Director, Secondary Education
Department, Assam to dispose of the petitioners’ representation dated
17.09.2015, by a speaking order.
6. Consequent to the order dated 29.04.2016 passed in WP(C) 2588/2016, the
Director, Secondary Education Department, Assam issued order dated
21.06.2016, stating that the services of the staff of the School could not be
provincialised due to non-receipt of post sanction order from the Government
and that the same would be provincialised, as soon as the post sanction order
was received from the Government. The order dated 21.06.2016 issued by the
Director, Secondary Education Department is reproduced herein below as
follows:-
“ORDER
Seen the order dated 29.04.2016 passed by the Hon’ble Gauhati High
Court in WP(C) 2588/2016 filed by Ketekibari High School under Kamrup (Rural)
District.
Also seen the representation dated 17.09.2015 submitted by the
Headmasters of four different High schools under Kamrup (R) District praying
for provincialisation of their Schools.
The Ketekibari High School, Kamrup (R) which got recognitation from
SEBA during 2007 was declared as not eligible for provincialisation by the StateScrutiny Committee in 1st phase. Later, a hearing was conducted and the School
had been declared eligible for provincialisation by the State Scrutiny Committee
along with some other institutions. Accordingly, post sanction proposal was
submitted to Govt. vide this office letter No. PC/SEC/253/2013/234 dated
Page No.# 7/2004.12.2013. The services of the staff of the School could not be provincialised
as yet due to non-receipt of post sanction order from the Govt. The services of
the staff of the School will be provincialised as soon as the post sanction order
is received from the Govt.
With this, the Hon’ble High Court’s Order dated 29.04.2016 passed in
WP(C) No. 2588/2016 is complied with.”
7. The State Government not having issued any post sanction order for
provincialisation of the staff of the Ketekibari High School, the petitioners have
filed the present writ petition for a direction to be issued to the respondents to
provincialise the services of the petitioners, with all consequential benefits, in
terms of the Assam Venture Educational Institutions (Provincialisation of
Services) Act, 2011 (hereinafter referred to as the “2011 Act”).
8. The petitioners’ counsel submits that as the Director has taken a decision
that the services of the staff of the School are eligible for provincialisation in
terms of the 2011 Act, the services of the petitioners should be deemed to be
provincialised in terms of Section 4(1) read with Section 10(4) and the Schedule
to the 2011 Act. In this regard, the counsel for the petitioners has relied upon
the judgment of this Court in the case of Dilip Das vs. The State of Assam &
2 Ors.[WP(C) 6804/2017]. He further submits that all Schools from the
recommended list have been provincialised, except for the petitioners’ School,
which amounts to discrimination.
9. Mr. B Kaushik, learned counsel for the Secondary Education Department, on
the other hand, submits that there can be no post sanction order for
provincialisation of the services of the petitioners under the 2011 Act, in view of
Page No.# 8/20
the fact that the 2011 Act has been struck down, as it has been held to be ultra
vires by the Division Bench of this Court, in its order dated 23.09.2016 passed in
WP(C) 3190/2012 (Chandan Kumar Neog & 77 Ors. vs. The State of
Assam & Ors.). In support of his submission that the School and the services
of the staff cannot be regularized under the 2011 Act, which has become non-
est, he has relied upon the judgment of this Court in the case of Dipak Kr. Das
vs. The State of Assam & 8 Ors. , reported in (2016) 2 GauLJ 262, the
Division Bench judgment and order dated 13.11.2019 passed in WA No.
283/2019 (Smti.Purnabati Brahma vs. The State of Assam & 6 Ors.)
and the decision of the Supreme Court in the case of State of Manipur & Ors.
vs. Surjakumar Okram & Ors., reported in (2022) SCC Online SC 130.
10. In the case of Dilip Das (supra), a co-ordinate Bench of this Court had
held that the petitioner, who was a Grade-IV employee was deemed to have
been provincialised by operation of law under Section 4(1) of the 2011 Act. The
co-ordinate Bench of this Court held that Section 10(2) of the Act of 2011
further provided that in order to arrive at a conclusion as to whether an
employee was within the permissible numbers prescribed in the schedule to the
Act of 2011 to be provincialised, the District Scrutiny Committee was to forward
the verified list of eligible teachers in accordance with the number of posts
specified in the schedule to the concerned Director. The Director was to make a
further scrutiny and forward it to the Department of the State Government for
consideration, for issuing a notification in respect of the eligible institution/s and
employees eligible for getting their services provincialised. Section 10(2) merely
provided for the procedure to be adopted by the authorities in determining
whether a given employee came within the purview of the number of posts
specified in the schedule and such process did not in any manner require the
Page No.# 9/20
State Government authorities to take an administrative decision, as to whether
the services of the given employee was to be provincialised or not. The service
of the concerned employee stood provincialised by operation of law under
Section 4(1) of the Act of 2011 itself and there was no requirement for the
authorities in the administrative side to further provincialise the service of the
given employee. Section 10(4) was merely for providing a procedure to be
followed by the authorities in arriving at its conclusion, as to whether the given
employee was within the permissible numbers, as provided in the schedule. In
the event, the authorities, pursuant to such process arrived at a conclusion that
the concerned employee was within the permissible number as provided in the
schedule, there was no further requirement for issuing any administrative order,
for provincialising the service of the concerned employee, inasmuch as, his
service already stood provincialised by operation of law under Section 4(1) of
the Act of 2011. The co-ordinate Bench thus held that any such order that the
authorities passed, would be only in the nature of an order recognizing the
provincialisation of the concerned employee, which had already taken place by
operation of law and such order of recognition cannot be construed to be an
order provincialising his service.
11. In the case of Dipak Kr. Das (supra), another co-ordinate Bench of this
Court held that 2011 Act had been enacted to provincialise the service of
employees of venture educational institutions in the State of Assam and to
restrict further establishment of such institutions in the State. It further held
that under Section 4 of the 2011 Act, upon provincialisation of a School, the
teaching and non-teaching staff would be deemed to be employees of the State
Govt. and their terms and conditions of service would be governed by the
Service Rules applicable to the State Govt. employees of corresponding ranks.
Page No.# 10/20
Since there were bound to be claims and counter-claims leading to disputes,
Section 10 of the 2011 Act laid down the procedure for scrutiny of the claims for
provincialisation. Section 10 envisaged scrutiny at three stages – firstly, at the
District Level through the District Scrutiny Committee; secondly, at the level of
the Directorate and lastly, at the level of the State Government. It further held
that Sub Section 4 of Section 10 provided that the District Scrutiny Committee
shall forward the verified list of eligible teachers and staff to the concerned
Director who shall, thereafter make such further scrutiny as may be required
and forward the same to the concerned department of the State Govt., for
consideration and final decision.
12. As can be seen from the above two decisions, there is a contradiction in
the interpretation of Sections 4 and 10 of the 2011 Act. While the co-ordinate
Bench in the case of Dipak Kr. Das (supra), has held that even though the
State Government does not make an administrative decision as to whether an
employee is to be provincialised or not, the provincialisation of the service of the
said employee is deemed to have been done in terms of Section 4(1) and 4(2),
if the District Scrutiny Committee forwards the verified list of eligible employees
to the concerned Director, who after scrutiny forwards the same to the State
Government for consideration. On the other hand, in the case of Dipak Kr. Das
(supra), another co-ordinate Bench of this Court has held that the State
Government is to take the final decision on the issue of provincialisation.
13. Section 3 of the 2011 Act provides the eligibility criteria for selection of
educational institutions for provincialisation of the service of it’s employees,
wherein not only is the venture educational institution required to have obtained
the required permission or recognition or affiliation or concurrence for running
Page No.# 11/20
the institution from the respective competent authority, there has to be a
minimum number of enrollment of students and a consistent good academic
performance, along with the required infrastructure, before an institution may
be considered as eligible, for provincialisation of the services of the employees.
Section 4 of the 2011 Act, on the other hand, provides that the services of the
employees of all eligible venture educational institutions under Section 3 shall be
deemed to be provincialised on the date of coming into force of the 2011 Act
and they shall become employees of the State Government with effect from the
said date, provided such institutions have completed 7 years of imparting
education from the date of affiliation, recommendation, concurrence or
permission, as the case may be. The same would, however, be subject to the
number of employees who should not exceed the number specified in the
Schedule appended to the 2011 Act. Section 4(3) however states that the
services of the teaching or non-teaching employees shall be considered for
provincialisation, only if they have the requisite academic and professional
qualification prescribed by the relevant rules at the time of their initial
employment.
14. Section 4 and 10(1)(2)(3)(4) of the 2011 Act are reproduced herein below
as follows:-
“4. Employees to be Government servant.-
(1) The services of the employees of all eligible Venture Educational Institutions
under Section 3 shall be deemed to have been provincialised on the date of
coming into force of this Act and they shall become employees of the State
Government with effect from that date, provided such institutions have
completed at least 7 years of imparting education from the date of affiliation,
recognition, concurrence or permission, as the case may be, as on the date of
coming into force of this Act :
Page No.# 12/20
Provided that the services of those employees of the Venture Educational
Institutions eligible for provincialisation under Section 3 which have not
completed [7] years of their imparting education from the date of their
affiliation, recognition, concurrence or permission, as the case may be, as on
the date of coming into force of this Act, shall be provincialised as and when
the concerned educational institution completes [7] years of imparting
education from the date of such affiliation, recognition, concurrence or
permission, as the case may be;](2) The numbers of employees in both teaching and non-teaching cadre in
each of the Venture Educational Institution, services of whom are
provincialised or to be provincialised under this Act, shall not exceed as
specified in the Schedule appended to this Act:
Provided that where the number of such employees serving in such Venture
Educational Institutions exceeds the number as specified in the Schedule, the
provincialisation of the services of the employees shall be on the basis of
seniority in the respective category in the concerned educational institution.
The State Government shall not have any liability whatsoever in regard to such
excess employees:
Provided further that the State Government shall have no liability whatsoever
in respect of any past liability of the Venture Educational Institutions whose
employees have been provincialised under this Act.
(3) The services of a teaching or non-teaching employee in a Venture
Educational Institution upto higher secondary level shall be considered for
provincialisation, only if they have the requisite academic and professional
qualifications prescribed by the relevant Rules at the time of their initial
appointment. In case of employees of a Degree College, they must have
acquired such requisite educational as well as professional qualification as may
be deter-mined by the University Grants Commission from time to time:
Provided that if an employee is required to acquire any prescribed academic or
professional qualifications, services of such employee may be considered for
provincialisation if otherwise eligible, but in such case the provincialisation
would be subject to acquisition of such prescribed qualifications within a period
Page No.# 13/20of five years from the date of coming into force of this Act, and during this
intervening period, he may continue to work under the existing terms and
conditions under which he was working, until his services are provincialised. In
case of his failure to acquire the required academic or professional qualifications
within the stipulated period, his services shall stand terminated with effect from
the date of expiry of stipulated period of five years.
(4) If any eligible Venture Educational Institution intends to remain outside the
purview of provincialisation of services of their employees under this Act, such
institution shall give their option in writing intimating their intention to remain
outside the purview of this Act, before the District Scrutiny Committee within
one year from date of coming into force of this Act.]”
“10. District Scrutiny Committee.-
(1) There shall be one District Scrutiny Committee in each district separately
for Elementary, Secondary and for Higher Education to scrutinize service
records and other related issues of the serving teachers and staff of Venture
Educational Institutions pertaining to provincialisation of their services.
(2) The Deputy Commissioner of the District, by an order shall constitute the
District Scrutiny Committee for the respective district under preceding sub-
section.
(3) The District Committee shall first scrutinize and prepare a list of all Venture
Educational Institutions within the district, which are eligible in terms of the
provisions of this Act and shall thereafter proceed to scrutinize and verify the
service records of all the serving employees, who are eligible or would become
eligible for being considered for provincialisation of their services.
(4) The District Scrutiny Committee shall forward the verified list of eligible
teachers school-wise in accordance with the number of posts specified in the
Schedule appended to this Act, to the concerned Director who shall, after
making such further scrutiny as may be required, shall forward the same to the
concerned Department of the State Government for consideration and for
issuing Notification in respect of the eligible institutions and employees eligible
Page No.# 14/20for getting their services provincialised.”
15. As can be seen from the extract of Sections 4 and 10 of the 2011 Act,
provincialisation of the service of an employee of an eligible venture educational
institution has to be done by following the procedure provided in Section 10 of
the 2011 Act. On considering the fact that the District Scrutiny Committee is to
forward the verified list of regular teachers to the Director, who is to make a
further scrutiny and forward the same to the concerned Department of the State
Government for consideration and for issuing a notification for provincialisation,
this Court is of the view that unless the concerned Department of the State
Government considers the Director’s scrutinized list and takes a decision on the
same, there cannot be deemed provincialisation on the basis of the list
prepared by the District Scrutiny Committee and which has been subject to
further scrutiny by the Director. Accordingly, this Court does not agree with the
observation made in the judgment of the co-ordinate Bench in Dipak Kr. Das
(supra), wherein it states that there was requirement for issuing any
administrative order for provincialisation, inasmuch as, the service of the
employee stood provincialised by operation of law under Section 4(1) if the
Director had scrutinized the list made by the District Scrutiny Committee and
forwarded the same to the State Government. If the decision passed by the co-
ordinate Bench in Dilip Das (supra), is to be accepted then the issue of
further consideration of the list submitted by the concerned Director as required
under Section 10(4) of the 2011 Act becomes redundant and has no meaning.
This Court is of the view that where it has been clearly spelt out in Section
10(4) of the 2011 Act that the list submitted by the Director is to be considered
by the concerned Department of the State Government for issuing
Page No.# 15/20
provincialisation order, the same in the view of this Court can only mean that
the final decision of provincialisation would lie with the concerned Department
of the State Government.
16. In the case of Dr. Jaishri Laxmanrao Patil vs. Chief Minister & Ors. ,
reported in (2021) 8 SCC 1, the Supreme Court has held that in examining the
provisions of the Constitution, Court should adopt the primary Rule and give
effect to the plain meaning of the expressions. This Rule can be departed only
when there are ambiguities. The Supreme Court has, on considering various
other judgments, also held that the words of a statute must prima facie, be
given their ordinary meaning and the Courts are bound to give effect to the
words of a statute, which are clear, plain and unambiguous irrespective of the
consequences. In the present case, Section 10 of the 2011 Act having clearly
spelt out the fact that the concerned Department in the State Government was
to consider the lists submitted by the Director, who had scrutinised the list
prepared by the District Scrutiny Committee and that the consideration by the
concerned Department was for issuing a notification in respect of the eligible
institutions and employees for provincialisation, the same clearly points to the
fact that the concerned Department was vested with the power to make the
final decision. As such, there cannot be any deemed provincialisation of an
institution or of an employee, only because it’s case had passed the scrutiny of
the District level Scrutiny Committee and the Director concerned. It had to pass
the scrutiny of the concerned Department of the State Government.
17. A combined reading of Sections 3, 4 & 10 of the 2011 Act does not
indicate that there would be deemed provincialisation of the services of the
employees, in the absence of consideration, as required under Sections 3, 4 &
Page No.# 16/20
11 of the 2011 Act. The deeming provision in Section 4(1) of the 2011 Act only
relates to the date when the effect of provincialisation can be given to an
employee and the same does not indicate that the service of the employees
concerned is to be provincialised withouth the procedure and consideration to
be made in terms of Section 10 of the 2011 Act.
18. The above being said, the State Scrutiny Committee is reflected in the
order dated 21.06.2016, who had taken the decision for provincialisation of the
petitioners in terms of Section 10(4) of the 2011 Act and a post sanction
proposal had been sent to the State government. However, the State
Government has not issued any post sanction order for provincialisation of the
services of the petitioners till date and in the meantime, the 2011 Act has been
declared to be ultra vires. Thus, there was no decision made by the concerned
Department of the State Government to provincialise the petitioners in terms of
the 2011 Act.
19. A perusal of the provisions of the 2011 Act shows that there is no such
State Scrutiny committee that can be or is to be constituted under the 2011 Act.
In fact the procedure for provincialisation under Section 10 of the 2011 Act
provides a three tier mechanism, wherein the District Scrutiny Committee is to
submit its list to the Director, who in turn is to scrutnise the same and submit a
list to the concerned Department of the State Government. There is no mention
of any State Scrutiny Committee who is to scrutinize or take a decision with
regard to provincialisation under the 2011 Act. On the other hand, Section 13 of
the Assam Education (Provincialisation of Services of Teachers and Re-
Organisation of Educational Institutions) Act, 2017 (hereinafter referred to as
the “2017 Act”) provides that the procedure for provincialisation requires the
Page No.# 17/20
District Scrutiny Committee to scrutinize and prepare a list of all venture
educational institutions within the District for provincialisation. The same has to
be forwarded to the concerned Director. Thereafter the Director, after
scrutinizing the list, is to send the list to the concerned Department of the State
Government for consideration and for issuing notification in respect of eligible
institutions and teachers for getting their services provincialised. The
constitution of the State Level Scrutiny Committee is provided in Section 13(10)
of the 2017 Act and in terms of Section 14 of the 2017 Act, the State Level
Scrutiny Committee is the appellate authority against any recommendation
made by the District Scrutiny Committee and the State Government in the
concerned administrative Department shall be appellate authority against any
recommendation of the State Level Scrutiny Committee. The above facts shows
that in terms of the 2017 Act, the final arbiter to decide which institution/person
is to be provincialised, is the concerned Department in the State Government
and not the State Level Scrutiny Committee, who is only a recommending body.
Thus, the order dated 21.06.2016 issued by the Director of Secondary
Education, which states that the petitioner’s School had been declared for
provincialisation by the State Scrutiny Committee, does not appear to be
correct. In any event, the same shows that the concerned Department in the
State Government has not taken any decision for provincialisation of the
petitioners. The contents of the said order dated 21.06.2016 appears to be
suspect and one wonders as to whether a decision had been taken by a State
Level Scrutiny Committee, to provincialise the petitioners, when there is no
State Level Scrutiny Committee in the 2011 Act.
20. In the case of Surjakumar Okram (supra), the Supreme Court has held
that where a statute is adjudged to be unconstitutional, it is as if it had never
Page No.# 18/20
been. Rights cannot be built up under it. In the case of Behram Khurshid
Pesikaka vs. State of Bombay, reported in (1955) 1 SCR 613, the
Constitutional Bench of the Supreme Court held that a declaration of
unconstitutionality brought about by lack of legislative power as well as a
declaration of unconstitutionality brought about by reason of abridgement of
fundamental rights goes to the root of the power itself, making the law void in
its inception. The Supreme Court in Surjakumar Okram (supra), has held
that on declaration of a statute as unconstitutional, it becomes void ab initio.
Saving past transactions are within the exclusive domain of the Court. In the
present case, there is nothing to save, as the process for provincialisation had
not been completed, as no final consequential order for provincialisation had
been issued by the Government under the 2011 Act.
21. In para 28 and 29 of Surjakumar Okram (supra), the Supreme Court
has held as follows:
“28. The principles that can be deduced from the law laid down by this
Court, as referred to above, are:
I. A statute which is made by a competent legislature is valid till it
is declared unconstitutional by a court of law.
II. After declaration of a statute as unconstitutional by a court of law,
it is non est for all purposes.
III. In declaration of the law, the doctrine of prospective overruling can
be applied by this Court to save past transactions under earlier
decisions superseded or statutes held unconstitutional.
Page No.# 19/20
IV. Relief can be moulded by this Court in exercise of its power under
Article 142 of the Constitution, notwithstanding the declaration of a
statute as unconstitutional.
29. Therefore, it is clear that there is no question of repeal of a statute
which has been declared as unconstitutional by a Court. The very
declaration by a Court that a statute is unconstitutional obliterates the
statute entirely as though it had never been passed. The
consequences of declaration of unconstitutionality of a statute have
to be dealt with only by the Court.”
22. This Court thus holds that there cannot be any deemed provincialisation of
an employee unless the procedure provided in Section 10(4) of the 2011 Act is
undertaken, i.e., the final consideration and decision for provincialisation is
taken by the concerned Department of the State Government. Unfortunately, in
the present case, there is nothing to show that a decision to provincialise the
services of the petitioners had been taken by the concerned administrative
Department of the State Government under the 2011 Act, which has been
declared to be ultra vires. As such, in terms of the decision of the Supreme
Court in Surjakumar Okram (supra), the 2011 Act being non est for all
purposes, provincialisation cannot be done under the 2011 Act.
23. In view of the above reasons, this Court cannot give any direction to the
respondents to provincialise the services of the petitioners in terms of the 2011
Act which has been declared to be ultra vires and unconstitutional. However, in
view of the fact that provincialisation can be done under the 2017 Act, the
petitioners may apply for provincialisation under the above 2017 Act, if so
advised.
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24. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant