Gauhati High Court
Smti Gita Rabha vs The State Of Assam And 5 Ors on 26 June, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010253712014
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6411/2014
SMTI GITA RABHA
W/O- SRI ABANI KALITA, VILL. and P.O.- MUKALMUA, DIST.- NALBARI,
PIN- 781126.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
EDUCATION, HIGHER DEPTT., DISPUR, GHY- 6.
2:DY. SECY. TO THE GOVT. OF ASSAM
EDUCATION DEPTT.
DISPUR
GHY- 6.
3:THE DIRECTOR
HIGHER EDUCATION
KAHILIPARA
GHY- 19
KAMRUP M
ASSAM.
4:GOVERNING BODY OF THE BARKHETRI COLLEGE
MUKALMUA
P.O.- MUKALMUA
DIST.- NALBARI
PIN- 781126
ASSAM.
5:PRINCIPAL
BARKHETRI COLLEGE
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MUKALMUA
P.O.- MUKALMUA
DIST.- NALBARI
PIN- 781126.
6:MRIDUL HOQUE CHOUDHURY
ASSTT. PROFESSOR
BARKHETRI COLLEGE
MUKALMUA
NALBARI
PIN- 781126
ASSAM
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT & ORDER
Advocates for the petitioners : Shri R.C. Saikia, Sr. Advocate
Ms. K. Saikia, Advocate
Advocates for the respondents : Shri K. Gogoi, SC, Higher Education Deptt.
Shri S. Muktar (R. No.6)
Date(s) of hearing : 10.06.2025 and 12.06.2025
Date of judgment : 26.06.2025
The instant petition has been filed under Article 226 of the Constitution of
India with a claim for provincialisation of the services of the petitioner under the
Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011.
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2. As per the facts projected, the petitioner is an M.A. and was appointed in
the Barkhetri College (herein after College) as Lecturer in Hindi on 08.12.1997.
At that time, the said College was in the venture stage. Prior to the said
appointment, the Government had granted concurrence to TDC Part-I which
includes the Hindi subject vide communication dated 20.01.1995 and to TDC
Part-II which includes Hindi vide communication dated 12.09.1997. It is
projected that such concurrence has been continuing. While the petitioner was
serving, the Guwahati University had issued a communication dated 16.12.2009
to the Government for granting concurrence to the Barkhetri College and in the
said communication, the aspect of Elective Hindi subject was included.
Subsequently, vide communication dated 10.08.2012, the Guwahati University
had moved the Government for granting concurrence to the College in respect
of Hindi (Major) in TDC 1st year. In between vide communication dated
19.12.2011, the Principal of the College had issued a communication to the
Director of Higher Education giving the particulars of the employees with a
recommendation for provincialization. The said communication was issued in
terms of the Act of 2011 and in the enclosure, the name of the petitioner was
against Sl. No. 16. On 07.04.2014, the Director of Higher Education had issued a
communication by which so far as the petitioner is concerned, her seniority was
directed to be counted from 11.12.1997 and in the enclosed details in a tabular
form, the petitioner is at Sl. No. 14. It may be mentioned that in the said table,
one Ashok Das in the subject of Hindi is against Sl.No. 11.
3. The Director of Higher Education issued a communication dated
30.08.2014 and it is the case of the petitioner that in the enclosure containing
names of incumbents, many of them did not have NET/SLET /M.Phil/Ph.D and
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yet they were given the benefit of regularization. It is projected that there are
sufficient numbers of students and for no discernible reasons, the claim of the
petitioner has been rejected whereas in other Colleges, more than two
appointments have been made in Hindi subject.
4. I have heard Shri R.C. Saikia, learned Senior Counsel assisted by Ms. K.
Saikia, Ms. R. Bharali and Ms. M.M. Das learned counsel for the petitioner. I
have also heard Shri K. Gogoi, learned Standing Counsel, Higher Education
Department and Shri S. Muktar, learned counsel for the respondent no. 6.
5. Shri Saikia, the learned Senior Counsel has submitted that there was no
legal impediment in provincializing the services of the petitioner and a case of
discrimination has also been tried to be projected. It is submitted that so far as
other Colleges are concerned, more than one Hindi teacher have been given the
benefit of provincialisation leaving out the petitioner who has been serving since
the year 1997 without any break.
6. The learned Senior Counsel has drawn the attention of this Court to an
order dated 25.05.2016 passed by this Court in WP(C)/4644/2014 ( Kamal
Sajati & Ors vs. State of Assam ) in which there was a direction for
provincialisation. It is submitted that when the said judgment was passed, the
Act in question was already cancelled and therefore, the stand taken by the
Government that the Act of 2011 is no longer existing would not be sustainable.
He further submits that for the Beltola College, orders of provincialization was
made on 26.05.2014 in which many candidates without having NET/SLET were
given the benefit. He has also cited the example of G.L. Choudhury College at
Barpeta Road wherein the Director of Higher Education had issued an order
dated 20.01.2014 wherein many such candidates were given such benefits.
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Instances of Dhubri Girls’ College and Rukasen College in the district of Karbi
Anglong have also been cited.
7. It is submitted that the petitioner has been serving for the last 25 years
and not provincializing her service would amount to exploitation. He has
informed this Court that vide an order dated 05.02.2021, the petitioner has
been appointed as Tutor in Hindi at a meager salary of Rs.27,000/- (Rupees
Twenty Seven Thousand) per month whereas her counterparts whose services
have been provincialized are getting much more salary. He has highlighted that
so far as the Rukasen College in the district of Karbi Anglong is concerned, it is
on the same date when the benefit of provincialization was given to persons
without NET/SLET.
8. In support of his submission, the learned Senior Counsel has relied upon a
decision of this Court dated 06.05.2024 passed in WP(C)/7265/2021 ( Arati
Rani Mazumdar vs. State of Assam).
9. Per contra, Shri K. Gogoi, learned Standing Counsel, Higher Education
Department has submitted that the Act of 2011 has been struck down vide a
judgment of the Hon’ble Division Bench of this Court on 23.09.2016 in
WP(C)/3190/2012 and therefore, as on date there is no question of giving any
benefit out of the said Act. He has submitted at the outset that so far as the
case of Kamal Sajati (supra) is concerned, the judgment is dated 25.05.2016
which is prior to the striking down of the Act on 23.09.2016. In other words, he
submits that at the time of delivery of the judgment in the case of Kamal
Sajati (supra), the Act of 2011 was still existing. The learned Standing Counsel
has also drawn the attention of this Court to the note which has been appended
to the Act of 2011 which reads as follows:
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“The Assam Venture Educational Institutions (Provincialisation of Services)
Act, 2011 (Assam Act No. XVII of 2011) as amended vide the Assam
Venture Educational Institutions (Provincialisation of Services)
(Amendment) Act, 2012 and the Assam Venture Educational Institutions
(Provincialisation of Services) Amendment) Act, 2013, which have been
struck down by the Hon’ble Gauhati High Court vide order dated
23.09.2016 in WP(C) No. 3190/2012, and all rules. orders, notifications
issued thereunder, shall stand repealed, by the Assam Education
(Provincialisation of Services of Teachers and Re-Organisation of
Educational Institutions) Act, 2017, the Governor of Assam is pleased to
notify that except the provisions under Section 4 and 8, the remaining
provisions of the Act are deemed to have come into force with effect from
5th May, 2017.”
10. Regarding the concurrence, the learned Standing Counsel has submitted
that the typed copies of the concurrence orders which have been annexed to
the writ petition are not correctly done and are different from the original. It is
submitted that the expression “MIL” has been left out in the typed copies.
11. The learned Standing Counsel has also drawn the attention of this Court
to the Act wherein a Schedule has been given and for each MIL subject, there is
one Lecturer. It is submitted that the petitioner was in second position and
admittedly in the table enclosed by the petitioner herself, there is one senior
above her, namely, one Shri Ashok Das.
12. The learned Standing Counsel has given the present position that as of
11.06.2025, the subject of Hindi as a MIL has been given concurrence for TDC
Part-I and Part -II and there is no other concurrence for Hindi (Major) or
Elective Hindi.
13. So far as the service of the petitioner is concerned, it is submitted that
admittedly the petitioner does not have the NET/SLET qualification and
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therefore, under the new Act of 2017, she has been regularized as Tutor. It is
reiterated that the petitioner cannot be given the benefit of a repealed Act of
2011. He has also produced before this Court a recent certificate dated
11.06.2025 issued by the Principal of the College wherein it has been reiterated
that concurrence by the Competent Authority has been given only to the TDC
courses and not for Elective Hindi and Hindi (Major). It is submitted that the
permission is given by the concerned University whereas the concurrence is
given by the Government and there is a huge difference between the aforesaid
two aspects. He has reiterated that till the year 2011, the proposal to include
Elective Hindi was still pending and was never finalized.
14. He has also drawn the attention of this Court to the definition of Venture
Degree College appearing in Section 2 (o) of the Act which reads as follows.
“2. (o) “Venture Degree College” means a Degree College imparting
education beyond Higher Secondary stage established by the people
of the locality prior to 1.1.2006 and which has also received
affiliation from the concerned University and concurrence from the
State Government on or before 1.1.2006 and not provincialised
under any Act enacted by the State legislature so far.”
15. He has submitted that concurrence has to be prior to 01.01.2006 to meet
the requirement and in this case, even the statute which has been repealed
does not permit such provincialisation.
16. The learned Standing Counsel has placed reliance upon an order dated
13.11.2019 passed by the Hon’ble Division Bench in WA 283/2019 in the case of
Purnabati Brahma vs. The State of Assam and Ors . He has pressed into
service the observations made in paragraph 9 which reads as follows.
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“9. The case as projected by learned counsel for appellant to the effect
that the appellant was vested with rights under the Act of 2011 on the
date when judgment was rendered in Chandan Kumar Neog (supra),
cannot be accepted. The very fact that the services of the petitioner had
not been provincialised and therefore, the writ petition was filed, makes it
clear that the case of the petitioner would not be covered within the four
corners of the decision rendered on the review petition. Admittedly, the
petitioner was not getting salary as provincialised employee. Therefore, it
would be a fallacy in law and facts to consider that right had already been
vested in the writ petitioner under the Act of 2011, which admittedly has
been struck down as constitutionally invalid. The Review Court has held
that doctrine of prospective overruling would not apply as the said power
is vested only with the Supreme Court of India. It is in such circumstances
it has been provided in Para 19(supra) of judgment rendered by the
Review court 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. Till then it is ordered that the services of the provincialised
category and their status as govt. employees shall not be disturbed and
they will continue to receive all the benefits which they are getting under
the Provincialisation Act, 2011, since struck down by the judgment under
Review.”.
17. He has also relied upon a judgment dated 13.02.2024 passed by the
Hon’ble Division Bench in WA 285/2018, (Kalpana Baruah vs. The State of
Assam and Ors.) wherein the principles laid down in Purnabati Brahma
(supra) has been endorsed.
18. On the aspect of constitutionality of an Act, the learned Standing Counsel
has relied upon the judgment of State of Manipur and Ors. vs. Surjakumar
Okram and Ors. and paragraph 23 has been pressed into service which reads
as follows.
“23. The principles that can be deduced from the law laid down by this
Court, as referred to above, are:
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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.
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.
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.”
19. He has also relied upon the case of Prahlad Konch vs. The State of
Assam reported in (2017) 3 GLJ 111 wherein the Hon’ble Division Bench has
laid down that NET / SLET is mandatory for appointment to the post of Lecturer
and M.Phil alone will not do.
20. As regards the submission on the aspect of discrimination, the learned
Standing Counsel has submitted that Article 14 is a positive right and there is no
concept of negative equality. In this regard, he has relied upon the case of R.
Muthukumar and Ors. vs. Chairman and Managing Director TANGEDCO
and Ors. reported in 2022 SCC Online SC 151
21. As regards the instances of the other Colleges cited by the petitioner, the
learned Standing Counsel has submitted that the petitioner has not given any
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details on the aspect of concurrence of the respective Department. He submits
that unless such details are available or put on record, the petitioner cannot
maintain the said aspect of challenge. He has also submitted that as per the
new Act, if a candidate obtains the NET /SLET within a period of 5 years, he or
she will get the UGG scale. He has also submitted that though the period is of 5
years, there are instances where the period has been relaxed and the petitioner
can avail of this benefit. He has submitted that under the new Act of 2017, Tutor
has been defined under Section 2 (u) and it is under this Act that the benefit
has been given to the petitioner presently. He has also submitted that even the
Act of 2017 was the subject matter of challenge which was however dismissed
by the Hon’ble Division Bench. He has fairly submitted that while dismissing the
said challenge, the Hon’ble Division Bench has recommended to explore as to
how there can be increase in the pay of Tutors in which the petitioner’s case
would also be covered.
22. As regards the appointment of persons without NET/SLET, the learned
Standing Counsel has submitted that it indeed appears that some aberrations
had taken place earlier but those are being presently actively reviewed. He has
reiterated in any case that there is no concept of negative equality under Article
14 of the Constitution of India. He has drawn the attention of this Court to
Section 24 of the new Act wherein it has been laid down that review is
permitted.
23. The learned Standing Counsel accordingly submits that the instant writ
petition is without any merits and is liable to be dismissed.
24. Endorsing the submission of the learned Standing Counsel, Shri Muktar,
the learned counsel for the respondent No. 6 has submitted that his client has
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been unnecessarily arrayed as a party. He has submitted that the subject of his
client is Mathematics whereas the subject of the petitioner is Hindi and there is
no connection at all. He has submitted that in any case there are 17 other
juniors below the respondent No. 6 and none have been made parties and it is
the respondent No. 6 who has been unnecessarily harassed. He has also
informed that the services of the respondent No. 6 has been provincialized on
21.07.2016 and the order of provincialisation is not the subject matter of any
challenge.
25. The rival submissions have been duly considered and the materials placed
before this Court have been carefully examined.
26. The present claim has to be understood to be based on the following
broad grounds:
(i) Discrimination.
(ii) Wrongful denial in spite of the petitioner being eligible.
(iii) Benefits given as per Court’s order.
27. Since all the three grounds are interconnected, the same would be taken
up together.
28. As per the facts projected, the College in question was in the venture
stage when the petitioner was appointed as a Lecturer on 08.12.1997. At that
time, the Government concurrence was given to the TDC Part -I and Part -II
which included Hindi. There is nothing on record however to show that further
concurrence has been given for Elective Hindi and Hindi (Major). So far as the
orders of concurrence are concerned, it appears that while presenting the typed
copy, the expression “MIL” has been left out. Even giving benefit of doubt to the
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petitioner that such error has been done inadvertently, a bare look with the
photocopy annexed would show that the concurrence was given only to MIL. In
any case, there is no doubt that so far as Elective Hindi and Hindi (Major) is
concerned, there is no concurrence and as per the Act of 2011 which was
holding the field at that time, only one post of Hindi was to be provincialized.
29. In the communication issued by the Principal to the DHC on 19.12.2011 in
pursuance to the Act of 2011, the particulars of all the teachers were forwarded
which included the name of the petitioner against SL. No. 16. It is not in dispute
that the seniority of the petitioner has to be counted from 11.12.1997. In the
said table however, it is seen that so far as the subject “Hindi” is concerned, one
Shri Ashok Das is senior to the petitioner and was placed against Sl. No. 11. As
noted above, under the Act, only one teacher is eligible for provincialisation of
service.
30. So far as the submission made that persons not having NET/SLET/M.Phil/
Ph.D were given the benefit of regularization, this Court is of the opinion that
even if some benefits are given to any candidate in aberration of law, the same
cannot go as a mandamus from the Court. In the case of Prahlad Konch
(supra), a Division Bench of this Court has laid down that NET/SLET is
mandatory and M.Phil alone will not do. This Court also finds force in the
submission made by the learned Standing Counsel that so far as the other
Colleges are concerned, there are no details given as to how many posts in the
subject of Hindi were given concurrence.
31. With regard to the case of Kamal Sajati (supra), the learned Standing
Counsel is correct in contending that the judgment is dated 25.05.2016 whereas
the Act of 2011 was struck down on 23.09.2016 in WP(C)/3190/2012.
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Therefore, at the time when the judgment in Kamal Sajati (supra) was
passed, the Act of 2011 was an existing Act and therefore, the said facts are
distinguishable from the case in hand.
32. As regards the present position, it appears that the petitioner has been
regularized as a Tutor as per the Act of 2017 and as pointed out by the learned
Standing Counsel, the Act itself provides for facilitating such person to obtain
NET/SLET within a particular time which can also be extended. This Court has
also to consider the mandate of law as laid down by the Hon’ble Division Bench
in the case of Purnabati Brahma (supra), the relevant observation of which
has already been extracted above. The said principles have been reiterated by
the Division Bench in a later judgment of Kalpana Baruah (supra).
33. As regards the respondent No. 6, this Court is of the opinion that the
respondent No. 6 has been unnecessarily made a party as both the subject as
well as the position in the seniority list are not relevant at all.
34. The reliance of the petitioner in the case of Arati Rani Mazumdar
(supra) is misplaced. The said case on the aspect of regularization of service of
dropped teachers is based on the earlier judgment passed by this Court in the
case of Jiban Ch. Deka and Ors. vs. State of Assam reported in 2008 (3)
GLT 229. The facts of the said case which pertains to the services in L.P. and
U.P. Schools are wholly distinguishable from the facts of the present case.
35. Though the petitioner has tried to project that there are good number of
students for which such provincialisation would be justified, this Court is of the
opinion that provincialisation has to be preceded by the existence of a vacancy
which has to be done by following the due process of law. Admittedly, in the
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instant case, the concurrence is only for the Hindi subject in TDC Part-I and
Part-II and there is no further concurrence for any other post in the subject of
Hindi. Though the petitioner is presently rendering her services as Tutor under
the 2017 Act, the Act itself providing for an avenue to get the UGC scale,
wherein the incumbent is given time to obtain NET/SLET, this Court is of the
opinion that the doors of the petitioners have not been finally closed.
36. With regard to the aspect of discrimination, it is trite law that the rights
under Article 14 is a positive right and there is no concept of negative equality.
In this connection, the reliance on the case of R. Muthukumar (supra) by the
Department appears to be appropriate. The following observations made by the
Hon’ble Supreme Court may be referred in this regard.
“28. A principle, axiomatic in this country’s constitutional lore is that there
is no negative equality. In other words, if there has been a benefit or
advantage conferred on one or a set of people, without legal basis or
justification, that benefit cannot multiply, or be relied upon as a principle
of parity or equality. In Basawaraj v. Special Land Acquisition Officer, this
court ruled that:
“8. It is a settled legal proposition that Article 14 of the Constitution is not
meant to perpetuate illegality or fraud, even by extending the wrong
decisions made in other cases. The said provision does not envisage
negative equality but has only a positive aspect. Thus, If some other
similarly situated persons have been granted some relief/benefit
inadvertently or by mistake, such an order does not confer any legal right
on others to get the same relief as well. If a wrong is committed in an
earlier case, it cannot be perpetuated.”
37. In view of the aforesaid discussions, this Court is of the opinion that no
relief can be granted to the petitioner and accordingly the writ petition is
dismissed.
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38. No order as to cost.
JUDGE
Comparing Assistant