Pahumara Anchalik M.E. School, Represented by its Headmaster Md. Hasen Ali V. The State of Assam, Represented by the Chief Secretary to the Government of Assam and The Commissioner & Secretary to the Government of Assam, Education Department and The Secretary to the Government of Assam, Finance Department and The Director of Elementary Education, Assam and The Bodoland Territorial Council, Represented by its Principal Secretary and The Director of Education, Bodoland Territorial Council and The District Elementary Education Officer, Barpeta and The District Elementary Education Officer, Dhubri and The District Elementary Education Officer, Baksa and The District Elementary Education Officer, Chirang

WP(C)/1449/2024

AI Insights

The case involves multiple writ petitions filed by teachers and headmasters of various Middle English (M.E.) Schools in Assam, challenging the decision of the Director of Elementary Education, Assam, which denied their provincialisation of services from 1991. The petitioners argued that their schools were similarly situated to 1255 other schools that were provincialised in 1991 but were left out without justifiable reasons. The court examined the historical context of provincialisation, the applicable laws, and the principles of equality and non-discrimination under the Constitution of India. The court found that the petitioners were entitled to the same benefits as their counterparts and directed the authorities to rectify the oversight.

• Counselvise Citation: [2026] 140 COUNSELVISE.COM (IT) 833146 (HC-GAUHATI)
• Appeal Type: Others
• Pronouncement Date: 30-01-2026
• Assessment Year: misc
• Other Referred Cases: E.P. Royappa vs. State of Tamil Nadu and Anr., P.D. Agarwal and Ors. vs. State of U.P. and Ors., Commissioner of Income Tax, U.P. vs. M/s Shah Sadiq and Sons, Union of India and Ors. vs. Tushar Ranjan Mohanty and Ors., Chairman Railway Board and Ors. vs. C.R. Rangadhamaiah and Ors., Thyssen Stahlunion GMBH vs. Steel Authority of India Ltd., Hitendra Vishnu Thakur and Ors vs. State of Maharashtra and Ors., Confederation of Ex-Servicemen Association and Ors. vs. Union of India and Ors., Subhash H. Pophale vs. Oriental Insurance Company Limited and its Estate Officer, Naseem Bano v. State of U.P., Manager, Government Branch Press and Another vs. D.B. Belliappa, State of Orissa v. Mamata Mohanty, Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others
• Laws Referred To: Assam Elementary Education (Provincialisation) Act, 1974, Assam Elementary Education (Provincialisation) Rules, 1977, Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: B TALUKDAR; D D BARMAN; B BORA; A CHALIHA
• Assessee Lawyers: M SARMA
• Keywords: Discrimination; Elementary Education; Legal rights; Pensionary benefits; Provincialisation; Service Benefits
• Section: 5; 7; 8(2)

Judgement Text

" WP(C) 7226/2019 and batch Page 1 of 73 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) PRINCIPAL SEAT WP(C) Nos. 7226/2019, 1413/2024, 1428/2024, 1449/2024 & 1462/2024 I. WP(C) No.7226/2019 Pahumara Anchalik M.E. School, Represented by its Headmaster Md. Hasen Ali, S/o Late Kitab Ali, Village & PO-Pahumara, Dist.-Barpeta, Assam, Pin-781308. ……Petitioner. -Versus- 1. The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati, Pin-781006. 2. The Commissioner & Secretary to the Government of Assam, Education Department, Dispur, Guwahati, Pin-781006. 3. The Secretary to the Government of Assam, Finance Department, Dispur, Guwahati, Pin-781006. 4. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Pin-781019. 5. The Bodoland Territorial Council, Represented by its Principal Secretary, Kokrajhar, Dist.-Kokrajhar (BTC), Assam. 6. The Director of Education, Bodoland Territorial Council, Kokrajhar, Dist.-Kokrajhar (BTC), Assam. GAHC010230492019 Printed from counselvise.com Deepjyoti Sarkar Digitally signed by Deepjyoti Sarkar Date: 2026.02.05 11:33:09 +05'30' WP(C) 7226/2019 and batch Page 2 of 73 7. The District Elementary Education Officer, Barpeta, Dist.-Barpeta, Assam, Pin-781301. 8. The District Elementary Education Officer, Dhubri, Dist.-Dhubri, Assam. 9. The District Elementary Education Officer, Baksa (BTC), Assam. 10. The District Elementary Education Officer, Chirang (BTAD), Assam. ……Respondents. For the Petitioner : Mr. M. Sarma. ……Advocate. For the Respondents : Mr. B. Talukdar, SC, Elem. Edu., Ms. D.D. Barman, GA, Assam, Ms. B. Bora, SC, BTC, Mr. A. Chaliha, SC, Finance. ……Advocates. II. WP(C) No.1413/2024 1. Sateswar Brahma, Headmaster (Retired), Daimu M.E. School, S/o Late Atharam Brahma, Vill-Harigaon, PO-Kalipukhuri, Dist.-Kokrajhar (BTC), Assam, Pin-783369. 2. Binod Ch. Brahma, Grade-IV (Retired), Daimu M.E. School, S/o Late Saburam Brahma, Vill-Harigaon, PO-Kalipukhuri, Dist.-Kokrajhar (BTC), Assam, Pin-783369. 3. Rajendra Ray, Assistant Teacher (Retired), Debargaon M.E. School, S/o Late Kameswar Ray, Vill-Nidani, PO-Bahalpur, Dist.-Dhubri, Assam, Pin-783376. 4. Dinabandhu Ray, Printed from counselvise.com WP(C) 7226/2019 and batch Page 3 of 73 Assistant Teacher (Retired), Debargaon M.E. School, S/o Late Lolit Ray, Vill-Bahalpur, Jogipara Pt. I, PO-Bahalpur, Dist.-Dhubri, Assam, Pin-783376. 5. Rukhila Basumatary, W/o Late Premlal Narzari, Headmaster of Karigaon M.E. School, Vill-Karigaon, PO-Karigaon, Dist.-Kokrajhar, Assam, Pin-783373. 6. Ujjhal Kr. Wary, Assistant Teacher (Retired), Karigaon M.E. School, S/o Babendra Wary, Vill-Dologaon, PO-Garubhasa, Dist.-Chirang, Assam, Pin-783373. 7. Maten Rajbongshi, Assistant Teacher (Retired), Karigaon M.E. School, S/o Late Paramananda Roy, Vill-Kaunia Bhasa (Ujanpara), PO-Kalipukhuri, Dist.-Kokrajhar, Assam, Pin-783369. 8. Aruna Barman, Assistant Teacher (Hindi) (Retired), Karigaon M.E. School, D/o Late Swadhin Ch. Barman, Vill-Patgaon, PO-Patgaon, Dist.-Kokrajhar, Assam, Pin-783346. 9. Amarsing Basumatary, Assistant Teacher, Karigaon M.E. School, S/o Late Lakshmiram Basumatary, Vill-Haltugaon, PO-Haltugaon, Dist.-Kokrajhar, Assam, Pin-783370. 10. Ramesh Ch. Mosahary, Assistant Teacher, Karigaon M.E. School, S/o Late Saitendra Moshahary, Printed from counselvise.com WP(C) 7226/2019 and batch Page 4 of 73 Vill-Taronguri, PO-Haltugaon, Dist.-Kokrajhar, Assam, Pin-783370. 11. Sabita Brahma, Assistant Teacher (Hindi), Karigaon M.E. School, D/o Late Budhiram Brahma, Vill-Ghoramari, PO-Dotma, Dist.-Kokrajhar, Assam, Pin-783347. 12. Amarendra Nath Basumatary, Headmaster (Retired), Lakshnabari Tinali M.E. School, S/o Late Dwarendra Nath Basumatary, Vill-Hasraobari, PO-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 13. Sushila Mushahary, W/o Late Bongeswar Mushahary, Assistant Teacher, Lakshnabari Tinali M.E. School, S/o Late Budhiswar Mushahary, Vill-Athiabari Tinali, PO-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 14. Rupendra Basumatary, Assistant Teacher, Lakshnabari Tinali M.E. School, S/o Late Dhansing Basumatary, Vill-South Lakshnabari, PO-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 15. Samarendra Basumatary, Assistant Teacher (Retired), Lakshnabari Tinali M.E. School, S/o Late Istar Basumatary, Vill-North Hasraobari, PO-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 16. Sanamati Basumatary, W/o Late Puranjoy Basumatary, Assistant Teacher (Retired), Lakshnabari Tinali M.E. School, Vill-Bhodiaguri, PO-Patgaon, Dist.-Kokrajhar, Assam, Pin-783346. 17. Pramode Ch. Basumatary, Assistant Teacher (Retired), Lakshnabari Tinali M.E. School, Printed from counselvise.com WP(C) 7226/2019 and batch Page 5 of 73 S/o Late Bidsingh Basumatary, Vill-Saragaon, PO-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 18. Jwngkli Narzary, W/o Late Bhupen Ch. Narzary, Grade-IV, Lakshnabari Tinali M.E. School, S/o Late Kalam Narzary, Vill-Athiabari Tinali, Po-Ramfalbil, Dist.-Kokrajhar, Assam, Pin-783346. 19. Margaret Basumatary, W/o Headmaster Late Samarendra Basumatary of Simlaguri M.E. School, Vill-Simlaguri, PO-Dotma, Dist.-Kokrajhar, Assam, Pin-783347. 20. Jaymati Barman, W/o Late Prafulla Kr. Barman, Assistant Teacher of Simlaguri M.E. School, S/o Surendra Barman, Vill-Amtoli, PO-Chithila, Dist.-Kokrajhar, Assam, Pin-783354. 21. Sachindra Ray, Assistant Teacher (Retired), Simlaguri M.E. School, S/o Sunil Ch. Ray, Vill-Lamapara, PO-Chithila, Dist.-Kokrajhar, Assam, Pin-783354. ……Petitioners. -Versus- 1. The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati, Pin-781006. 2. The Commissioner & Secretary to the Government of Assam, Education Department, Dispur, Guwahati, Pin-781006. 3. The Secretary to the Government of Assam, Finance Department, Dispur, Guwahati, Pin-781006. Printed from counselvise.com WP(C) 7226/2019 and batch Page 6 of 73 4. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Pin-781019. 5. The District Elementary Education Officer, Kokrajhar, Dist.-Kokrajhar, Assam, Pin-781301. ……Respondents. For the Petitioners : Mr. M. Sarma. ……Advocate. For the Respondents : Mr. B. Talukdar, SC, Elem. Edu., Ms. D.D. Barman, GA, Assam, Ms. B. Bora, SC, BTC, Mr. A. Chaliha, SC, Finance. ……Advocates. III. WP(C) No.1428/2024 1. Shri Hiten Chandra Patgiri, Headmaster (Retired), Athiabari Girls M.E. School, S/o Late Purna Ram Patgiri, Vill-Pub Athiabari, PO-Athiabari, Dist.-Baksa BTR, Assam, Pin-781377. 2. Shri Homeswar Das, Headmaster (Retired), Athiabari Girls M.E. School, S/o Late Baloram Das, Vill-Paschim Athiabari, PO-Athiabari, Dist.-Baksa BTR, Assam, Pin-781377. 3. Smt. Harmaya Patowary, Assistant Teacher, Nava Milan High School, S/o Late Jagat Ch. Patowary, Village-Katanipara, PO-Athiabari, Dist.-Baksa BTR, Assam, Pin-781377. 4. Habib Ullah, Assistant Teacher, Nava Milan High School, S/o Late Umar Uddin, Vill-Sarumanikpur, PO-Sarumanikpur, Dist.-Baksa BTR, Assam, Pin-781329. Printed from counselvise.com WP(C) 7226/2019 and batch Page 7 of 73 5. Shri Makunda Tahbildar, Headmaster (Retired), Jaymati Girls M.E. School, S/o Abhay Charan Kalita, Vill-Sarumanikpur, PO-Sarumanikpur, Dist.-Baksa BTR, Assam, Pin-781329. 6. Md. Chamaun Ali, Assistant Teacher (Retired), Jaymati Girls M.E. School, S/o Late Sader Ali, Vill-Sarumanikpur, PO-Sarumanikpur, Dist.-Baksa BTR, Assam, Pin-781329. 7. Shri Chakrapani Das, Assistant Teacher (Retired), Jaymati Girls M.E. School, S/o Late Mehiram Das, Vill-Sarumanikpur, PO-Sarumanikpur, Dist.-Baksa BTR, Assam, Pin-781329. ……Petitioners. -Versus- 1. The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati, Pin-781006. 2. The Commissioner & Secretary to the Government of Assam, Education Department, Dispur, Guwahati, Pin-781006. 3. The Secretary to the Government of Assam, Finance Department, Dispur, Guwahati, Pin-781006. 4. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Pin-781019. 5. The District Elementary Education Officer, Baksa, Dist.-Baksa, Assam, Pin-781329. ……Respondents. For the Petitioners : Mr. M. Sarma. ……Advocate. Printed from counselvise.com WP(C) 7226/2019 and batch Page 8 of 73 For the Respondents : Mr. B. Talukdar, SC, Elem. Edu., Ms. D.D. Barman, GA, Assam, Mr. A. Chaliha, SC, Finance. ……Advocates. IV. WP(C) No.1449/2024 1. Nagendra Chandra Barman, Headmaster (Retired), Bamuni Chotogirai M.E. School, S/o Late Manindra Chandra Barman, Vill-Chotogirairpar, PO-Barkanda, Dist.-Dhubri, Assam, Pin-783348. 2. Hazrat Ali Sk., Assistant Teacher (Retired), Bamuni Chotogirai M.E. School, S/o Late Monser Ali Sk, Vill-Chotogirairpar, PO-Barkanda, Dist.-Dhubri, Assam, Pin-783348. 3. Jamser Ali Sk, Assistant Teacher (Retired), Bamuni Chotogirai M.E. School, S/o Late Jalal Uddin Sk, Vill-Khoraghat, PO-Barkanda, Dist.-Kokrajhar (BTAD), Assam, Pin-783348. 4. Jaynab Bibi, W/o Late Mozibar Rahman, Assistant Teacher, Bamuni Chotogirai M.E. School, S/o Late Salimuddin Sk, Vill-Bargirairpar, PO-Barkanda, Dist.-Dhubri, Assam, Pin-783348. 5. Lokesh Ch. Roy, Headmaster, Jamduar Public M.E. School, S/o Late Naresh Chandra Roy, Vill-Tokrabandha, PO-Chirakuta, Dist.-Dhubri, Assam, Pin-783348. 6. Mozar Ali, Assistant Teacher (Retired), Jamduar Public M.E. School, S/o Taripulla Sk, Printed from counselvise.com WP(C) 7226/2019 and batch Page 9 of 73 Vill-Surjya Khata Pt.II, PO-Bilasipara, Dist.-Dhubri, Assam, Pin-783348. 7. Amser Ali, Headmaster (Retired), Ananda Nagar M.E. School, S/o Late Shaibulla Sheikh, Vill-Harkata Muslimpara, PO-Hatipota, Dist.-Dhubri, Assam, Pin-783348. 8. Tapash Chandra Barman, Assistant Teacher (Retired), Ananda Nagar M.E. School, S/o Late Usendra Barman, Vill-Jamduar Pt.I, PO-Jamduar, Dist.-Dhubri, Assam, Pin-783348. ……Petitioners. -Versus- 1. The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati, Pin-781006. 2. The Commissioner & Secretary to the Government of Assam, Education Department, Dispur, Guwahati, Pin-781006. 3. The Secretary to the Government of Assam, Finance Department, Dispur, Guwahati, Pin-781006. 4. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Pin-781019. 5. The District Elementary Education Officer, Dhubri, Dist.-Dhubri, Assam, Pin-783348. ……Respondents. For the Petitioners : Mr. M. Sarma. ……Advocate. For the Respondents : Mr. B. Talukdar, SC, Elem. Edu., Ms. D.D. Barman, GA, Assam, Printed from counselvise.com WP(C) 7226/2019 and batch Page 10 of 73 Mr. A. Chaliha, SC, Finance. ……Advocates. V. WP(C) No.1462/2024 1. Shri Rabin Medhi, Headmaster (Retired), Sanatan Sewashram Girls’ M.E. School, S/o Late Basudev Medhi, Vill-Niz Sathisamuka, PO-Sathisamuka, Dist.-Barpeta, Assam, Pin-781355. 2. Bharat Ch. Nath, Assistant Teacher (Retired), Sanatan Sewashram Girls’ M.E. School, S/o Late Tarani Nath, Vill-Kharadhara, PO-Baramchari, Dist.-Barpeta, Assam, Pin-781355. 3. Parul Talukdar, Assistant Teacher (Retired), Sanatan Sewashram Girls’ M.E. School, W/o Durgeshwar Kalita, Vill & PO-Sarumanikpur, Dist.-Baksa, Assam, Pin-781329. 4. Nipendra Nath Das, Headmaster (Retired), Chaibari M.E. School, S/o Late Bhuban Ch. Das, Vill-Chaiabari, PO-Pub Rehabari, Dist.-Barpeta, Assam, Pin-781329. 5. Paban Chandra Das, Assistant Teacher (Retired), Chaibari M.E. School, S/o Hareshwar Das, Vill-Chaiabari, PO-Pub Rehabari, Dist.-Barpeta, Assam, Pin-781329. 6. Kabita Das, W/o Assistant Teacher Late Bhabesh Ch. Das of Chaibari M.E. School (since deceased), Village-Akaya, PO-Akaya, Dist.-Barpeta, Assam, Pin-781329. 7. Durgeswar Das, Assistant Teacher (Retired), Chaibari M.E. School, Printed from counselvise.com WP(C) 7226/2019 and batch Page 11 of 73 S/o Late Sriram Ch. Das, Vill-Chaiabari, PO-Pub Rehabari, Dist.-Barpeta, Assam, Pin-781329. 8. Ajit Kr. Das, Assistant Teacher (Retired), Chaibari M.E. School, S/o Late Upendra Nath Das, Vill-Chaiabari, PO-Pub Rehabari, Dist.-Barpeta, Assam, Pin-781329. 9. Niranjan Medhi, Assistant Teacher, Chaibari M.E. School, S/o Late Danoram Medhi, Vill-Chaiabari, PO-Pub Rehabari, Dist.-Barpeta, Assam, Pin-781329. 10. Mukunda Ch. Baishya, Headmaster (Retired), Bhattadev M.E. School, Bichankuchi, S/o Lohit Baishya, Vill-Kaljirapara, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 11. Nilima Devi, Assistant Teacher (Retired), Bhattadev M.E. School, D/o Haraballav Dev Sarma, Vill-Maripur Anandapur, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 12. Niran Ch. Das, Assistant Teacher, Bhattadev M.E. School, S/o Uddhab Das, Vill-Bichankuchi, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 13. Kripanath Choudhury, Assistant Teacher (Retired), Bhattadev M.E. School, S/o Bipin Choudhury, Vill-Bang Gosaipara, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 14. Giridhar Roy, Assistant Teacher, Bhattadev M.E. School, S/o Sukhnaram Roy, Printed from counselvise.com WP(C) 7226/2019 and batch Page 12 of 73 Vill-Bichankuchi, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 15. Harendra Nath Ojakahar, Assistant Teacher (Retired), Swahid Jyotish Choudhury M.E. School, Pipla, S/o Late Bandhuram Ojakahar, Vill-Pipla, PO-Nityananda, Dist.-Barpeta, Assam, Pin-781329. 16. Rukmini Das, Assistant Teacher (Retired), Swahid Jyotish Choudhury M.E. School, Pipla, C/o Baloram Roy, Vill-Saderi, PO-Saderi, Dist.-Barpeta, Pin-781325. ……Petitioners. -Versus- 1. The State of Assam, Represented by the Chief Secretary to the Government of Assam, Dispur, Guwahati, Pin-781006. 2. The Commissioner & Secretary to the Government of Assam, Education Department, Dispur, Guwahati, Pin-781006. 3. The Secretary to the Government of Assam, Finance Department, Dispur, Guwahati, Pin-781006. 4. The Director of Elementary Education, Assam, Kahilipara, Guwahati, Pin-781019. 5. The District Elementary Education Officer, Barpeta, Dist.-Barpeta, Assam, Pin-781301. ……Respondents. For the Petitioners : Mr. M. Sarma. ……Advocate. For the Respondents : Mr. B. Talukdar, SC, Elem. Edu., Ms. D.D. Barman, GA, Assam, Printed from counselvise.com WP(C) 7226/2019 and batch Page 13 of 73 Mr. A. Chaliha, SC, Finance. ……Advocates. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN Date(s) of Hearing :- 06.11.2025, 11.11.2025, 18.11.2025, 21.11.2025 & 25.11.2025 Date on which judgment is reserved :- 25.11.2025 Date of pronouncement of judgment :- 30.01.2026 Whether the pronouncement is of the operative part of the judgment? :- N/A Whether the full judgment has been pronounced? :- Yes JUDGMENT AND ORDER (CAV) Heard Mr. M. Sarma, learned counsel for the petitioners. Also heard Mr. B. Talukdar, learned standing counsel for the respondents in Elementary Education Department and Ms. B. Bora, Printed from counselvise.com WP(C) 7226/2019 and batch Page 14 of 73 learned standing counsel for respondents in Bodoland Territorial Council (BTC), in WP(C) Nos. 7226/2019, 1413/2024, 1428/2024, 1449/2024 and 1462/2024. 2. In all these five petitions, under Article 226 of the Constitution of India, the petitioners have challenged the order, dated 12.06.2019, passed by the Director of Elementary Education, Assam with further prayer for issuing direction to the respondent- authorities, more specifically the Director of Elementary Education, Assam to modify the earlier orders of provincialising the services of the petitioners and to pass fresh orders, giving effect to the provincialisation of the services of the petitioners, with effect from 1991, when other similarly situated M.E schools had been brought under the scheme of provincialisation in terms of the policy guidelines laid down in notification, dated 05.10.1993, and further to direct the respondent- authorities to grant all service benefits, including pensionary benefits available to the petitioners, consequent to such provincialisation of similarly situated M.E. Schools, with effect from 1990-91, as may be applicable to the petitioners in terms of the service conditions, governing their employment, when the exercise of provincialisation was first carried out at that time. 3. Notably, vide impugned order, dated 12.06.2019, the Director of Elementary Education, Assam has rejected the claim of the petitioners, for giving effect to the provincialisation of the services of the petitioners, with effect from 1991 and also to grant all service Printed from counselvise.com WP(C) 7226/2019 and batch Page 15 of 73 benefits, including pensionary benefits, available to the petitioners consequent to such provincialisation of similarly situated M.E. Schools, with effect from 1990-91. 4. As the issue involved in these batch of petitions are same and the relief(s) claimed and the respondents are also almost same, though however, the petitioners are different, but they are similarly situated, and as agreed upon, this Court is inclined to dispose of these batch of petitions by this common judgment and order. Background facts:- 5. The background facts leading to filing of the present five petitions, being WP(C)/7226/2019, WP(C)/1413/2024, WP(C)/1428/ 2024, WP(C)/1449/2024, and WP(C)/1462/2024, are almost the same and are briefly stated as under:- “The petitioners in WP(C) No. 1413/2024, WP(C)/1428/2024, WP(C)/1449/2024, WP(C)/1462/2024 and the teachers of petitioner‟s school in WP(C) No. 7226/2019 were qualified to be appointed as Assistant Teachers and they were selected and appointed as Assistant Teachers in their respective schools, between 1985-87, which established as venture schools that were recognized between 1990-91, by the respondent authorities. And of the 6 teachers of the petitioner‟s school in WP(C) No. 7226/2019, three have since been retired and the other three teachers are on the verge of Printed from counselvise.com WP(C) 7226/2019 and batch Page 16 of 73 superannuation. In the year 1991, the Government of Assam took a policy decision to provincialise the services of both teaching as well as non-teaching staff of 1255 numbers of Middle Schools (500 in the 1st phase & 755 in the second phase) against the posts created and retained by the Govt. in 1991. These 1255 numbers of schools covered those schools which were recognized between 1983 and 1991. The venture schools, where in the present petitioners were appointed, were also similarly situated on factual count as per the policy vis-a-vis the 1255 Nos. of schools identified by the Government for provincialisation, and therefore, the petitioners expected to have their services provincialised in terms of the policy decision of the state. Then in exercise of powers conferred, under Rule 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977, the respondent-state had issued a Notification, No. A (I) E.650/93/Pt/6, dated 05.10.1993, notifying detailed guidelines in terms of a policy decision, for provincialisation of venture LP/ME/MEM/Junior Basic/ Senior Basic/MV Schools of Assam, which came into force with immediate effect and also covered the schools where the petitioners were serving as Assistant Teachers after their respective schools were duly recognized in the year 1990-91. Printed from counselvise.com WP(C) 7226/2019 and batch Page 17 of 73 Thereafter, the respondent authorities, while giving effect to the policy decision of provincialisation of venture schools, in terms of the aforesaid notification, dated 05.10.1993, had adopted 'pick and choose' policy and carried it out in a slipshod manner and left out schools where the present petitioners were serving, from the ambit of provincialisation, inspite fulfillment of all the laid down criteria/guidelines by the said schools, that has been spelt out in the said notification. Thereafter, the District Elementary Education Officers of different districts submitted detailed list of dropped schools which were recognized during 1990-91, including the petitioners' schools, for provincialisation, but the necessary steps in that direction were not done. Thereafter, on the demand being made by those dropped schools, a meeting was held on 10.05.1999, between the State Government, represented by a group of Cabinet Ministers and high officials of the Education Department and the representatives of the 'All Assam Sikshak Karmachari Samannay Samity', that was the representative body of those schools that had been left out in the provincialisation exercise carried out earlier. After such discussion a Memorandum of Settlement (12 point charter of demands) was signed. Printed from counselvise.com WP(C) 7226/2019 and batch Page 18 of 73 Then the respondent No.2 by a letter/communication No. BS/256/99/35, dated 22.02.2000 (ANNEXURE-3) reiterated the commitment of the Education Department to the Chief Secretary to the Government of Assam for provincialisation of the venture Schools, including the petitioners' Schools, and at that time assured payment of fixed pay and for that purpose necessary steps were initiated for inspection and verifications etc. of the schools and the infrastructure etc towards provincialisation of the schools. But, the respondent authorities had failed to act in terms of the Memorandum of Settlement, signed on 10.05.1999, and did not take any steps for provincialisation of those dropped schools. Being aggrieved, in such inaction of the respondent authorities, the All Assam ME/MEM (Recognised 1990-91) School Teachers' Association representing the petitioners schools along with other similarly situated schools, numbering about 127 Nos. out of 235 Nos. schools left out filed a writ petition, being W.P. (C) No.1012/2004, seeking provincialisation of their schools. Then this Court, vide order dated 17.2.2004, (ANNEXURE – 5) had disposed of the said writ petition with a direction to the Secretary, Education Department to examine the matter and pass appropriate orders that may be considered expedient in the given situation for provincialistion of the schools in question. Printed from counselvise.com WP(C) 7226/2019 and batch Page 19 of 73 Then the office bearers of All Assam ME/MEM (Recognised 1990-91) School Teachers' Association submitted a detailed representation before the Respondent No.2 on 22.03.2004, enclosing necessary particulars of the schools showing the dates of establishment, permission, recognition, land of the schools, medium of teaching, particulars of teaching and non teaching staffs and order of approval and such other relevant information needed to facilitate the provincialisation of the schools that had been arbitrarily left out when the initial exercise of provincialisation was carried out in 1990-91. Then the Under Secretary, Education (Planning) Department by a letter/communication No. PMA.135/ 2004/99, dated 26.03.2004, had directed the Director of Elementary Education, Assam to furnish a detailed report along with information about the reasons for non submission of proposal for provincialisation of these 127 Nos. of schools along with the 1255 numbers of schools, during the year 1990, and as to whether the 127 numbers of schools fulfilled all the terms and conditions for provincialisation as per the existing Rules/guidelines etc. and also requested to furnish specific views under the existing norms and procedure. And the said 127 numbers of schools also included the schools where the petitioners were serving since their appointment. Printed from counselvise.com WP(C) 7226/2019 and batch Page 20 of 73 The Director of Elementary Education finally submitted a report to the Secretary, Education Department stating inter-alia that Budget provision was made for 1255 numbers of schools and such proposal for provincialisation of the remaining schools could not be submitted for want of budget provisions for such provincialisation. The Director also sought budget provisions to enable provincialisation of the remaining schools left out of the exercise of provincialisation already carried out, in terms of notification dated 05.10.1993. During the currency of the Assam Venture Education Institutions (Provincialisation of Services) Act, 2011, the respondent-authorities had disregarded the legal rights of the petitioners to have their services provincialised even under the provisions of the said Act. Thus, between 1993 when the said notification was issued till the Assam Venture Education Institutions (Provincialisation of Services) Act, 2011 (the \"Act\" for short) was repealed by judgment and order dated 23.09.2016 passed in W.P. (C) No.3190/2012, the respondent-authorities failed to address the bonafide and legitimate claim for provincialisation in terms of the notification dated 05.10.1993, and thereby caused serious prejudice to the rightful claim of the petitioners for having their services provincialised when their schools were recognised during 1990-91, and thereafter, when the orders of provincialisation was finally Printed from counselvise.com WP(C) 7226/2019 and batch Page 21 of 73 passed in May 2013, three teachers of the petitioner No. 1 school had either retired from service or were on the verge of retirement. Then, 43 M.E. Schools, including the schools where the petitioners were serving, espousing identical and similar issues, regarding the arbitrary non-inclusion of the petitioners' schools from the ambit of the exercise already undertaken by the state for undisclosed reasons, although such schools fulfilled the criteria laid down by the state while adopting the policy decision to provincialise all such Middle Schools in 1990-91, had preferred one writ petition being WP(C) No. 2432/11. During the pendency of the W.P (C) No.2432/2011, the respondent-authorities assured the petitioners that their claim for provincialisation would be favourably considered subject to the withdrawal of the said writ petition. Based on such assurances, W.P (C) No.2432/2011 was withdrawn before adjudication of the same on merits. And finally, the respondent-authorities, acting on their assurances issued orders, provincialising the services of the petitioners, under the provisions of the Assam Venture Educational Institution's (Provincialisation of Services) Act, 2011 as amended against created and sanctioned posts, vide Annexure-8 colly. But, the said orders provincialising the services of the petitioners were made with prospective effect only. As already stated, the schools where the Printed from counselvise.com WP(C) 7226/2019 and batch Page 22 of 73 petitioner's were appointed at the venture stage were given, permission, DISE Code and recognition much before 1990-91 when the policy decision was taken to provincialise 1255 numbers of Middle Schools. In fact, the schools were established between 1976-79, and therefore, ought to have been provincialised in 1990-91, after recognition along with the other 1255 numbers of schools that were brought within the ambit of provincialisation in terms of the policy decision of the Government. However, the authorities left out the M.E. schools where the petitioner's were serving as teachers for no justifiable reason necessitating the filing of 2 writ petitions before this Court, the last being WP (C) 2432/2011. They had been denied the benefit of provincialisation of their services from 1991, along with other similarly situated M.E schools, that were provincialised in 1991. Again, with the provincialising of their services only in 2013, the petitioners have been denied pension and other retiral benefits as enjoyed by those teaching staffs, whose services were provincialised at that point in time between 1990-91. The denial of the benefit of provincialisation from 1991 onwards must be construed to be discrimination vis-a-vis those teachers who had been granted the same benefit as far back as in 1991, for which the petitioners were equally entitled to in terms of the policy decision taken by the respondent state. Printed from counselvise.com WP(C) 7226/2019 and batch Page 23 of 73 Due to denial of financial and other consequential benefits of provincialisation, the Assam Dropped ΜΕ/ΜΕΜ (1990-91) School Teachers Association had approached the Supreme Court by filing Writ Petition (Civil) No.651 of 2015, but, the same was withdrawn on the ground of availability of alternate remedies. The petitioners then preferred representations on 22.05.2016, and 15.03.2017, agitating the issue regarding the denial of benefits of provincialisation, with effect from 1991 when the petitioners became eligible for provincialisation and for payment of pensionary benefits. But, the said representations failed to evoke any response. Then the petitioners, being left with no option available, approached this Court by filing writ petition No. W.P.(C) No. 6742/2018 (Sanatan Sewashram Girls ME School & Ors. -vs- The State of Assam & Ors.). Then vide order dated 29.10.2018, this Court had disposed of the writ petition by directing the respondent No. 4, to examine the petitioner's representations and pass a speaking order on the same within a period of one month and to communicate the decision to the petitioners. And in compliance of the said order dated 29.10.2018, passed by this Court, the respondent No. 4 had passed the impugned order, dated 12.06.2019 (Annexure- 14) rejecting the claim of provincialisation of the petitioner w.e.f. 1991, on the ground that there is no provision for giving consequential Printed from counselvise.com WP(C) 7226/2019 and batch Page 24 of 73 service benefit including pensionary benefits, from the year 1991 i.e. from the date of recognition of the school concerned under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012. That the petitioners are aggrieved by the inaction of the respondents in communicating their decision in respect of claims raised by the petitioners, centering around the grant of the benefit of provincialisation of their services with effect from 1990-91, when similarly situated ME schools were provincialised in terms of a policy decision taken by the Government as well as to grant pensionary benefits in as much as the effect of provincialising the services of the petitioners only from 2013, has denied and deprived pensionary benefit also. They have been singled out for hostile discrimination for the reason that their services ought to have been provincialised along with the 1255 numbers of Middle Schools, that came within the ambit of the policy decision taken by the Government in 1990-91, being similarly situated judged on the parameters/guidelines laid down for such provincialisation and the denial, therefore, runs counter to the provisions of Articles 14, 16, 21 of the Constitution of India.” 6. The respondent No.4 has filed affidavit-in-opposition denying the statement and averments made in the petition. It has taken a Printed from counselvise.com WP(C) 7226/2019 and batch Page 25 of 73 stand that as per Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 as amended in the year 2012, there were no provision for giving consequential service benefit, including pensionary benefit from the year 1991. It is also stated that the office had issued the order, under Memo No.EPD/H/75/2018/102 dated 12/06/2019, in compliance of this Court‟s order dated 29/10/2018, passed in WP(C) No.6742/2018, wherein the claim of the petitioners for consequential service benefits, including pensionary benefit, from the year 1991, was not considered on the strength of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 as amended 2012 and accordingly rejected. It is also stated that the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 as amended in the year 2012, has already been struck down by this Court vide judgment and order, dated 23/09/2016, passed in WP(C) No.3190/2012. 7. The petitioner had filed his reply to the Affidavit-in-opposition, filed by the respondent No.4, denying the statement and averment made therein and reaffirmed the statements made in paragraphs 15 to 24 of the writ petition. It is also stated that the services of the petitioners ought to have been provincialised along with the 1255 numbers of Middle Schools, that came within the ambit of the policy decision taken by the Government in 1990-91, being similarly situated to those schools. It is also stated that the Director of Elementary Education, Assam had, on 24.09.2004, submitted a Printed from counselvise.com WP(C) 7226/2019 and batch Page 26 of 73 detailed reply to the query raised by the Under Secretary to the Government of Assam, Education Department vide letter dated 26.03.2004 (Annexure- 6 to the writ petition), furnishing details of the remaining 127 numbers of similar schools, who were left out during the exercise of provincialisation and that an amount of Rs. 1113.29 Lakhs were required to complete the said process. However, despite this information and request, no action was undertaken by the respondent authorities, for completion of the exercise of provincialisation of the schools of the petitioners, which goes to show that the exercise of provincialisation of the petitioners‟ schools ought to have been carried out with effect from 1990-91, and also that the petitioners were clearly pursuing their grievances before the authorities and before the Court, much earlier to their provincialisation w.e.f. 01.01.2013, under the provision of the Act of 2011, which clearly goes on to prove that the respondent authorities ought to have given the benefit of provincialisation of the petitioner's w.e.f. 1990-91, as there is no clear provision in the Act of 2011 to bar the authorities from giving such benefit. Moreover, similarly situated schools were granted the benefit from 1990-91, and thus, differential treatment is meted out to the petitioners, which is in contravention of the provisions of Article 14, 16 and 21 of the Constitution of India. Further, as is already admitted that the services of the petitioners were provincialised under the Act of 2011, hence the aspect of nullifying of the same Act, does not come into play in light of the above made submissions. Printed from counselvise.com WP(C) 7226/2019 and batch Page 27 of 73 8. The respondent No.4 has filed an additional Affidavit-in- opposition on 30.10.2025, pursuant to the direction issued by this Court on 09.09.2025, to bring on record by way of an affidavit, with regard to the claim of the petitioner on the basis of similarly situated persons having been provincialised, and as the earlier affidavit in opposition filed by the Director of Elementary Education, Assam shows no whisper as regards the steps taken pursuant to the letter dated 26.03.2004, issued by the Under Secretary to the Government of Assam, Education (Planning) Department to the Director of Elementary Education, Assam, Kahilipara. It is stated that in the aforesaid letter dated 26.03.2004, the Under Secretary to the Government of Assam had asked for detailed report, along with instruction regarding- (i) Reasons for proposal for non-submission of proposal for provincialisation of 127 numbers of schools along with 1255 numbers of schools proposed for provincialisation during 1990. (ii) Whether the 127 schools fulfilled the terms and conditions for provincialisation as per the existing Rules / Guidelines and procedures in force and how many schools are there in the same line. A detailed report indicating year wise reorganization. (iii) A detailed particular regarding financial involvement towards provincialisation of 127 numbers of Μ.Ε./Μ.Ε.Μ schools and also for remaining schools as mentioned in the (2) above. Printed from counselvise.com WP(C) 7226/2019 and batch Page 28 of 73 And with regards to the letter dated 26.03.2004, issued by the Under Secretary to the Government of Assam, Education (Planning) Department submitted that the office file containing the aforesaid correspondence is untraceable in the record room and as such it is not in position to give any comments/ answer thereupon. It is also stated that with regards the claim of petitioners that similarly situated persons were provicialised in the year 1991, and they were deprived for no reason, it is stated that the reason for non- recommendation of the name of the petitioners/school can be ascertained only after perusal of relevant records, since the relevant records is untraceable, therefore, unable to comment thereupon. It is also stated that the petitioners‟ services were provincialized as per Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, and in the said Act there was no provision for giving consequential benefits with retrospective effect. The respondent No. 4 further submits that subsequently, the said Act of 2011 was also struck down by this Court vide order dated 23.09.2016, passed in WP (C) No. 3190/2012. Further, it is stated that having the Act of 2011 been struck down, the new Act i.e. the Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, come into force wherein Section 8(2) of the Act, clearly stated that no one can claim any benefits whatsoever, in respect of past services rendered by them and hence the petitioners herein are not entitled for any consequential benefits for their past services rendered by them. Printed from counselvise.com WP(C) 7226/2019 and batch Page 29 of 73 Submissions of learned counsel for the petitioners :- 9. Mr. M. Sarma, the learned counsel for the petitioners, submits that the petitioners had been serving as teachers since 1985, in the M.E. Schools, which were recognised between 1990-91. Said schools fulfilled all the criteria for provincialisation. The state respondents had carried out an exercise of provincialising 1255 numbers of M.E. schools in 1991. But, the schools of the petitioners were left out along with 235 other schools, without just ground. He further submits that a Memorandum of Settlement was also signed between the State Government and the representatives of the All Assam Sikshak Karmachari Samannay Samiti on 10.05.1999, for provincialisation of schools and other related issues. But, the same also failed to yield any result. Then being aggrieved the petitioners had preferred one W.P.(C) No. 1012/2004, for provincialisation of the schools left out/dropped by the state respondents and by an order dated 17.02.2004, this Court directed the Secretary, Education Department to examine the issue and to pass appropriate orders for provincialisation of the schools in question. As the respondents failed to take any steps the petitioners had again filed one writ petition, being W.P.(C) No. 2432/2011. However, the same was withdrawn on the assurances given by the state to favorably consider their claim for provincialisation. 9.1. Mr. Sarma further submits that at last the services of the petitioners were provincialised by orders passed by the Director, Elementary Education on various dates in 2013. But, in the Printed from counselvise.com WP(C) 7226/2019 and batch Page 30 of 73 meantime, 3 out of 6 teachers of petitioner Pahumara Anchalik M.E. School have already superannuated from service. He also submits that the petitioners are aggrieved by the hostile discrimination meted out to them, ever since 1991 when the exercise of provincialisation was carried out covering 1255 numbers of M.E. Schools, but left out the schools where the petitioners were serving although these schools were similarly positioned and were entitled to be covered by the decision taken in this regard. 9.2. Further submission of Mr. Sarma is that the petitioners have filed representations for resolving their unattended demands for which the petitioners had filed another writ petition being W.P.(C) No. 6742/2018, and the same was disposed of vide order dated 29.10.2018, directing the respondent authorities to consider the grievances raised by the petitioners and pass appropriate orders. And thereafter, vide impugned order, dated 12.06.2019, the claim of the petitioners were rejected on the ground that there is no provision for giving consequential service benefit including pensionary benefits from the year 1991, i.e. from the date of recognition of the school concerned under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, and as in the meantime the Act of 2011 was repealed by judgment dated 23.09.2016, passed in W.P.(C) No. 3190/2012. 9.3. Further, Mr. Sarma has pointed it out that the respondent authorities, having failed to provincialise the services of the Printed from counselvise.com WP(C) 7226/2019 and batch Page 31 of 73 petitioners, in terms of the notification dated 05.10.1993, caused serious prejudice to the petitioners and by rejecting their claim vide impugned order dated 12.06.2019, the respondent authorities had further intensified the same. He also pointed out that while similarly situated schools were provincialised, during the year 1993, with effect from 1991, the respondent had failed to explain and justify as to why the petitioners‟ schools were left out and that their right flows out of the policy decision of respondent authorities on the year 1993. Mr. Sarma also pointed it out that the reasons assigned in the impugned order, are arbitrary, unjust and liable to be interfered with, as it violates the right of the petitioners guaranteed under Article 14 and 16 of the Constitution of India. Under such circumstances, Mr. Sarma has contended to allow this petition. 9.4. Mr. Sarma has referred following decisions in support of his submission:- (i) E.P. Royappa vs. State of Tamil Nadu and Anr., reported in (1974) 4 SCC 3, (ii) P.D. Agarwal and Ors. vs. State of U.P. and Ors., reported in (1987) 3 SCC 622, (iii) Commissioner of Income Tax, U.P. vs. M/s Shah Sadiq and Sons, reported in (1987) 3 SCC 516, (iv) Union of India and Ors. vs. Tushar Ranjan Mohanty and Ors., reported in (1994) 5 SCC 450; Printed from counselvise.com WP(C) 7226/2019 and batch Page 32 of 73 (v) Chairman Railway Board and Ors. vs. C.R. Rangadhamaiah and Ors., reported in (1997) 6 SCC 623; (vi) Thyssen Stahlunion GMBH vs. Steel Authority of India Ltd., reported in (1999) 9 SCC 334; (vii) Hitendra Vishnu Thakur and Ors vs. State of Maharashtra and Ors., reported in (1994) 4 SCC 602, (viii) Confederation of Ex-Servicemen Association and Ors. vs. Union of India and Ors., reported in (2006) 8 SCC 399, (ix) Subhash H. Pophale vs. Oriental Insurance Company Limited and its Estate Officer, reported in (2014) 4 SCC 657. 10. Per contra, Mr. B. Talukdar, learned standing counsel for the state respondents, has supported the impugned order, dated 12.06.2019. He submits that the services of the petitioner were provincialised under the provisions of the Assam Venture Educational Institution's (Provincialisation of Services) Act, 2011 with prospective effect only. Mr. Talukdar also submits that there is no provision for giving consequential service benefit including pensionary benefits from the year 1991 i.e. from the date of recognition of the school concerned, under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012. He also submits that the Act of 2011 was Printed from counselvise.com WP(C) 7226/2019 and batch Page 33 of 73 repealed and Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, come into force, wherein Section 8(2) of the Act, clearly stated that no one can claim any benefits, whatsoever, in respect of past services rendered by them and hence the petitioners herein are not entitled for any consequential benefits for their past services rendered by them. 10.1. In support of his submission, Mr. Talukdar has referred following decision:- (i) WP(C)/4748/2021 (Assam High School Teachers Association and Anr. vs. State of Assam and 3 Ors.) 11. In his reply, Mr. Sarma, learned counsel for the petitioners submits that the case referred by Mr. Talukdar is distinguishable in fact of the present case and as such the same is not applicable in the case in hand. Mr. Sarma has also referred following decision of a Co-ordinate Bench of this Court to contend that similar benefit, as claimed by the petitioners herein, was granted to the petitioner in said writ petition. (i) WP(C)No./6013/2023 (Srimati Nabanita Mandal vs. State of Assam and 6 Ors.). Discussion and Analysis:- Printed from counselvise.com WP(C) 7226/2019 and batch Page 34 of 73 12. Having heard the submission of learned Advocates of both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order, dated 12.06.2019, (Annexure-14) passed by the Director of Elementary Education, Assam by which he had rejected the claim of the petitioners for giving effect to the provincialisation of the services of the petitioners, with effect from 1991, and also to grant all service benefits, including pensionary benefits available to the petitioners, consequent upon such provincialisation of similarly situated M.E. schools, with effect from 1990-91. Also gone through the decisions referred by Mr. Sarma, learned counsel for the petitioners and also by Mr. Talukdar, learned standing counsel for the respondent authorities. 13. From the contentions being made in the respective pleadings of the parties and also from the submissions of learned counsel for both the parties, following facts and circumstances emerges:- (i) The petitioners have been serving as teachers since 1985, in the M.E. Schools, which were recognised between 1990-91. (ii) Said schools fulfilled all the criteria for provincialisation. (iii) The state respondents had carried out an exercise of provincialising 1255 numbers of M.E. schools in 1991. Printed from counselvise.com WP(C) 7226/2019 and batch Page 35 of 73 (iv) But, the schools of the petitioners were left out, along with 235 numbers of other schools without just ground. (v) A Memorandum of Settlement was also signed between the State Government and the representatives of the All Assam Sikshak Karmachari Samannay Samiti on 10.05.1999, for provincialisation of schools and other related issues. But, the same also failed to yield any result. (vi) Then being aggrieved, the petitioners had preferred W.P.(C) No. 1012/2004, for provincialisation of the schools left out/dropped by the state respondents and by an order dated 17.02.2004, this Court had directed the Secretary, Education Department to examine the issue and to pass appropriate orders for provincialisation of the schools in question. (vii) As the respondents had failed to take any step for provincialisation of the schools, the petitioners had again filed one W.P.(C) No. 2432/2011. However, the same was withdrawn on the assurances given by the State respondents, to favorably consider their claim for provincialisation. (viii) The services of the petitioners were provincialised by orders passed by the Director, Elementary Education on various dates in the year 2013. But, in the Printed from counselvise.com WP(C) 7226/2019 and batch Page 36 of 73 meantime 3, out of 6 petitioners, have already superannuated from service. (ix) The petitioners are treated with hostile discrimination ever since 1991, when the exercise of provincialisation was carried out covering 1255 numbers of M.E. Schools, but left out the schools where the petitioners were serving although these schools were similarly positioned and were entitled to be covered by the decision taken in this regard. (x) The petitioners have filed representations for resolving their unattended demands and the same failed to evoke any response, for which the petitioners had filed another writ petition being W.P.(C) No. 6742/2018 and the same was disposed of vide order dated 29.10.2018, directing the respondent authorities to consider the grievances raised by the petitioners and pass appropriate orders. (xi) Thereafter, vide impugned order dated 12.06.2019, the claim of the petitioners were rejected on the ground that there is no provision for giving consequential service benefit including pensionary benefits from the year 1991, i.e. from the date of recognition of the school concerned under the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, and as in the Printed from counselvise.com WP(C) 7226/2019 and batch Page 37 of 73 meantime, the Act of 2011 was repealed vide judgment dated 23.09.2016, passed in W.P.(C) No. 3190/2012. (xii) The right of the petitioners flows out of the policy decision of respondent authorities in the year 1993. (xiii) The reasons assigned in the impugned order are arbitrary, unjust and liable to be interfered with as it violates the right of the petitioners guaranteed under Article 14 and 16 of the Constitution of India. 14. The impugned order, by which the claims of the petitioners were rejected by the Director, Elementary Education, Assam, respondent No. 4, is reproduced herein below for ready reference:- ‚GOVERNMENT OF ASSAM, OFFICE OF THE DIRECTOR OF ELEMENTARY EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19 ORDER Perused:- Perused the Hon'ble Gauhati High Court order dtd. 29/10/2018 passed in WP(C) No. 6742/2018 Sanatan Sewashram Girls ME School & 5 ors -Vs- State of Assam & ors, in which Hon'ble Court directed the respondent No.4 ie the DEE. Assam shall thereafter examine the petitioner's representation and pass a speaking order. Read:- Read the writ petition submitted by the petitioners in which they have claimed to give benefits of provincialisation from the year 1991 i.e. from the year of recognition of their school instead of 01/01/2013. Also read the Assam Venture Educational in 2012. Printed from counselvise.com WP(C) 7226/2019 and batch Page 38 of 73 Find:- As per the Venture Assam Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, the proposal for provincialisation of services of teaching and non-teaching staff of Recognized UP school including the petitioner's school were submitted by the DEEO concerned along with the recommendation of the concerned DLSC to this office and this office sent the same to the Govt. for sanction of posts. Accordingly, the Govt. has sanctioned posts and this office issued provincialisation order. In the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012 there was no provision for giving consequential service benefit including pensionary benefits from the year 1991 i.e. from the date of recognition of the school concerned. Decision:- In view of the above, the claim of the petitioners for given consequential service benefit including pensionary benefit etc. from the year 1991 cannot be considered as per the aforesaid Act, hence rejected. This has been issued in compliance of the Hon'ble High Court order dtd. 29/10/2018 passed in WP(C) No.6742/2018. Sd/- S.K. Bhuyan Director, Elementary Education, Assam, Kahilipara, Guwahati-19.‛ 15. Thus, a bare perusal of the impugned order reveals that the ground for rejection of claims of the petitioners, is that in the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011, as amended in 2012, there was no provision for giving Printed from counselvise.com WP(C) 7226/2019 and batch Page 39 of 73 consequential service benefit, including pensionary benefits, from the year 1991, i.e. from the date of recognition of the school concerned. The additional ground, that has been taken in the affidavit in opposition filed by the respondent No. 4, is that the Act of 2011, was repealed and Assam Education (Provincialisation of Services of Teachers and Re-organisation of Educational Institutions) Act, 2017, come into force, and Section 8(2) of the new Act, clearly stated that no one can claim any benefits, whatsoever, in respect of past services rendered by them and hence the petitioners herein are not entitled for any consequential benefits for their past services rendered by them. 16. But, it is the categorical submission of Mr. Sarma that the right of the petitioners flows from the policy decision, adopted by the respondent authorities in the year 1993, based on which similarly situated schools, like the schools of the petitioners were provincialised. Their right accrued under the old Act i.e. the Assam Elementary Education (Provincialisation) Act, 1974 and the Assam Elementary Education (Provincialisation) Rules, 1977, which were prevailing at the relevant time, while the Act of 2011 and 2017 were never come into existence. It is also his submission that there is no retrospective application of Act of 2011 and 2017 and on such count, the same cannot be applied retrospectively to negate the claim of the petitioners that arose under the Act 1974 and the Rules of 1977, which have never been repealed till date. Printed from counselvise.com WP(C) 7226/2019 and batch Page 40 of 73 17. In order to appreciate the said submission of Mr. Sarma, this Court deemed it necessary to peruse the Policy Decision of the year 1993, that has been annexed with the petition as Annexure-1. Said Policy Decision was notified on 5th of October, 1993, and the same extracted herein below:- ‚GOVERNMENT OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT ORDERS OF THE GOVERNOR OF ASSAM NOTIFICATION Dated Kahilipara, the 5th October 93, No. A(I)E.650/93/Pt/6. In exercise of the power under Rules 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977, the Governor of Assam is pleased to notify the following Rules and Guidelines and policy decision for provincialisation of the Venture LP/ME/MEM/Junior Basic/Senior Basic/MV Schools in the State of Assam which will come into force with immediate effect. 1. Every inhabitant village shall have at least one LP School. In case of urban areas this may be relaxed by the State Govt. on the basis of the need and population. 2. In a village having more than two hundred population, more LP Schools may be taken up at the distance of 1.1 KM from the existing School. In case of Junior Basic School, the distance should be more than 3 KM and the village should have more than 500 population. Printed from counselvise.com WP(C) 7226/2019 and batch Page 41 of 73 3. In case of LP and Junior Basic Schools, the enrolment of students shall not be less than 40 (forty) and in case of ME, MV, Senior Basic, MEM Schools, the enrolment shall not be less than 90 (ninety) provided that this may be relaxed by the State Govt. in suitable cases. 4. The teachers in Venture Schools may be retained at the time of taking over, subject to availability of sanctioned post, if they possess the requisite qualifications prescribed by the Govt. from time to time and provided they have the age of recruitment and provided such teachers have put in at least 2 (two) years of continuous service, immediately preceding the taking over of the School land also further provided that the prescribe ratio of students and teachers have been maintained in the School. 5. An LP School in rural areas should posses at least 2 bighas of land in one plot and 1 (one) bigha in one plot in urban area. An ME/MEM/MV/Senior Basic School should posses at least 2 (two) bighas of land in one plot in urban area. This condition may. However, be relaxed by the State Govt. in suitable cases. 6. The DI of Schools shall take the advice of the Advisory Board in selecting the LP and Junior Basic Schools fulfilling the above conditions for taking over and forward the list of the Director, Elementary Education, Assam who will get the approval of the Govt. for provincialisation. Printed from counselvise.com WP(C) 7226/2019 and batch Page 42 of 73 The District Elementary Education Officer shall follow the above procedure in cases of ME/MEM/MV/Senior Basic Schools for provincialisation. 7. The venture LP/ME/MEM/Junior Basic/Senior Basic/MV Schools shall be provincialised on the basis of need of the community and priority of establishment of the Schools subject to the fulfillment of the above norms. Sd./P.C. Sarmah, Commissioner & Secretary to the Govt. of Assam, Education Department.‛ 18. A bare perusal of the Notification dated 5th October, 1993, indicates that the Governor of Assam was pleased to notify the aforesaid Rules and Guidelines and policy decision in exercise of the power conferred under Rules 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977. 19. From the additional affidavit, filed by the respondent No.4, it appears that on 26.03.2004, the Under Secretary to the Government of Assam, Education (Planning) Department has written a letter to the Director of Elementary Education, Assam, Kahilipara asking detail report along with instruction regarding- (i) Reasons for non-submission of proposal for provincialisation of 127 schools along with 1255 schools, proposed for provincialisation during 1990. Printed from counselvise.com WP(C) 7226/2019 and batch Page 43 of 73 (ii) Whether the 127 schools fulfilled the terms and conditions for provincialisation as per the existing Rules / Guidelines and procedures in force and how many schools are there in the same line. A detailed report indicating year wise reorganization. (iii) A detailed particular regarding financial involvement towards provincialisation of 127 Μ.Ε./Μ.Ε.Μ schools and also for remaining schools as mentioned in the (2) above. The aforesaid affidavit also indicates that the office file, containing the aforesaid correspondence, is untraceable in the record room and as such it is not in position to give any comments/ answer thereupon. And with regards the claim of petitioners that similarly situated person were provincialised in the year 1991 and they were deprived for no reason, no comment for non- recommendation of the name of the petitioners/school could be given, since the relevant records is untraceable and the same could have been ascertained only after perusal of relevant records. 20. The respondent authorities, thus, could not give any answer with regards to non-submission of the proposal for provincialisation of 127 numbers of schools along with 1255 numbers of schools, proposed for provincialisation during 1990, and as to whether the 127 numbers of schools, which includes the schools of the petitioners‟, fulfilled the terms and conditions for provincialisation as Printed from counselvise.com WP(C) 7226/2019 and batch Page 44 of 73 per the existing Rules / Guidelines and procedures in force and how many schools are there in the same line. 21. In absence of pleading of the respondent authorities, the averments of the petitioners, so made in their petition that they have been singled out for hostile discrimination, remained un- controverted. Since the contentions being made by the petitioners remained un-controverted, the same have to be accepted as admission. In holding so, this Court derived authority from a decision of Hon‟ble Supreme Court in the case of Naseem Bano v. State of U.P., reported in 1993 Supp (4) SCC 46, wherein, it has been held that when an averment in the petition is not controverted by the respondent, the High Court should have proceeded on the basis that the said averments had been admitted by respondents. 22. Now, coming to the reason assign in the impugned order by the respondent No.4, for rejection of the claim of the petitioners, this Court finds that though in the Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 as amended in 2012, there was no provision for giving consequential service benefit including pensionary benefits from the year 1991, i.e. from the date of recognition of the school concerned, this Court is of the view that the said ground cannot be accepted in view of the fact that the right of the petitioners accrued in the year 1993, when the Policy Decision was adopted by the Government, in exercise of the power conferred under Rules 5 and 7 of the Assam Elementary Education Printed from counselvise.com WP(C) 7226/2019 and batch Page 45 of 73 (Provincialisation) Rules, 1977. Therefore, this Court afraid the contention of the respondent authorities that in the Act of 2011, there is no provision for giving consequential service benefit including pensionary benefits from the year 1991, when the schools were recognized, fails to withstand the legal scrutiny. It is to be noted here that in the Act of 2011, there is also no provision to bar the authorities from giving such benefits. The petitioners have rightly contended this in their reply affidavit. Moreover, at the relevant time, the Act of 1974 and the Rules of 1977 were in force and the policy decision, based upon which the petitioners have claimed the benefits was formulated by the Governor of Assam in exercise of the power under Rules 5 and 7 of the Rules of 1977, and the said Act and Rules are neither repealed nor overruled till date. On this count also, the impugned order is liable to be interfered with. 23. Regarding the other ground taken in the affidavit in opposition filed by the respondent No.4, that the Act of 2011 was repealed and Assam Education (Provincialisation of Services of Teachers and Re- organisation of Educational Institutions) Act, 2017, come into force, and Section 8(2) of the new Act, clearly stated that no one can claim any benefit, whatsoever, in respect of past services rendered by them and hence the petitioners herein are not entitled for any consequential benefits for their past services rendered by them, it is an admitted position that such ground is not there in the impugned order dated 12.06.2019. Printed from counselvise.com WP(C) 7226/2019 and batch Page 46 of 73 24. It is well settled in a decision of Hon‟ble Supreme Court in Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others, reported in (1978) 1 SCC 405, that the validity of the order must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise and an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. 25. Yet, in another decision of Hon‟ble Supreme Court in the case of the Manager, Government Branch Press and Another vs. D.B. Belliappa, reported in (1979) 1 SCC 477, it is well settled that the expression „matters relating to employment‟ under Article 16(1) of the Constitution of India is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment, both prior and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment, such as provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. It is further well established that Articles 14, 15(1) and 16(1) of the Constitution of India form part of the same constitutional code of guarantees and supplement each other and if any authority is needed for the above enunciation, reference may be made to the observations made in the case of General Manager Southern Railway vs. Rangachari, reported in (1962) 2 SCR 586. Printed from counselvise.com WP(C) 7226/2019 and batch Page 47 of 73 26. Thus, the impugned order dated 12.06.2019, so passed by the respondent No.4, suffers from the vice of arbitrariness and as such, it is violative of Article 14 and 16(1) of the Constitution. It is worth mentioning in this context that in the case of S.G. Jaisinghani vs. Union of India [AIR 1967 SC 1427], a Constitution Bench of Hon‟ble Supreme Court has observed as under:- ‚14. … absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. … the rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.‛ 26.1. Further, It is to be noted here that while dealing with the issue of arbitrariness, Hon‟ble Supreme Court in the case of State of Orissa v. Mamata Mohanty, reported in (2011) 3 SCC 436, held as under:- ‚59. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of Printed from counselvise.com WP(C) 7226/2019 and batch Page 48 of 73 bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision-making process remains bad.‛ 26.2. Here in this case, the impugned order, dated 12.06.2019 (Annexure –14) of the petition, is being challenged on account of the same being arbitrary, under Article 14 of the Constitution of India. And in that view of the matter, the same has to be tested by applying the Wednesbury principle, in view of the decision of Hon‟ble Supreme Court in the case of Om Kumar vs. Union of India, reported in (2001) 2 SCC 386,where in it has been held as under:- ‚68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as ‚arbitrary‛ under Article 14, the principle of secondary review based on Wednesbury Principles applies.‛ 26.3. However, when administrative action is challenged for being arbitrary, it only „indirectly‟ violates the right to equality under Article 14. It is to be noted here that arbitrariness was established as a ground of challenge by Hon‟ble Supreme Court in the case of E.P. Printed from counselvise.com WP(C) 7226/2019 and batch Page 49 of 73 Royappa (supra), by giving Article 14 an expansive interpretation. In the said case, it was observed that „from a positivistic point of view, equality is antithetic to arbitrariness, and where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law, therefore violating Article 14.‟ 26.4. Therefore, when an administrative action is challenged on grounds of arbitrariness, the courts play a secondary role in examining whether the administrators in discharging their primary role as adjudicators have adhered to the standards laid down in the Wednesbury test. The courts cannot apply the more intrusive proportionality test in such cases, limiting their intervention to judging the reasonableness of the decision-making process on the basis of the Wednesbury test. 26.5. Mention to be made here that in the case of Associated Provincial Picture House Limited vs. Wednesbury Corporation, reported in (1947) 2 AII ER 680, the United Kingdom, Court of Appeal held that the action of the administrative authorities would be declared unconstitutional, if it meets the following circumstances:- 1. Consideration of irrelevant and extraneous factors. 2. Neglect of relevant factors. 3. Decision is irrational to a reasonable person and no reasonable person in their wildest of dream would reach that particular conclusion. Printed from counselvise.com WP(C) 7226/2019 and batch Page 50 of 73 26.6. It is well settled that the impugned order has to be decided not on its merit, but examine the process of making the same and as held by Hon‟ble Supreme Court in the case of TATA Cellular vs. Union of India, reported in (1994) 6 SCC 651, the Court has to examine (1) whether a decision making authority exceeded its powers; (2) committed an error of law; (3) committed a breach of the rules of natural justice; (4) reached a decision which no reasonable tribunal would have reached, or; (5) abused its powers. 26.7. In the instant case, the respondent No.4 had committed an error of law in passing the impugned order by not considering the relevant facts that has been mentioned in the letter dated 26.03.2004, written by the Under Secretary to the Government of Assam, Education (Planning) Department to the Director of Elementary Education, Assam, Kahilipara asking detail report along with instruction regarding- (i) Reasons for non-submission of proposal for provincialisation of 127 schools along with 1255 schools proposed for provincialisation during 1990. (ii) Whether the 127 schools fulfilled the terms and conditions for provincialisation as per the existing Rules / Guidelines and procedures in force and how many schools are there in the same line. A detailed report indicating year wise reorganization. Printed from counselvise.com WP(C) 7226/2019 and batch Page 51 of 73 (iii) A detailed particular regarding financial involvement towards provincialisation of 127 Μ.Ε./Μ.Ε.Μ schools and also for remaining schools as mentioned in the (2) above. Also, it has failed to take note of the fact that right of the petitioners have accrued under Rules of 1977 and the Act of 1974, which are still in force and their claim cannot be rejected taking resort to the Act of 2011 and 2017, which were enacted subsequently, and while no retrospective effect of the same are given by the legislature. 26.8. Further, it appears that the respondent No.4 has taken into account irrelevant fact i.e. the Act of 2011 and of 2017 and Section 89(2) of the Act of 2017, while the right of the petitioners‟ accrued under the Policy Decision adopted by the Government under Rules 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977. 27. This Court has also gone through the decisions referred by Mr. Sarma, learned Counsel for the petitioners. In the case of Chairman Railway Board (supra), a Constitutional Bench of Hon‟ble Supreme Court has held as under:- ‚20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been Printed from counselvise.com WP(C) 7226/2019 and batch Page 52 of 73 granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.‛ 27.1. In para No. 24, Hon‟ble Supreme Court has held as under:- 24. In many of these decisions the expressions ‚vested rights‛ or ‚accrued rights‛ have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576] , B.S. Vedera [AIR 1969 SC 118 : (1968) 3 SCR 575 : (1970) 1 LLJ 499] and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33 : 1983 SCC (L&S) 231 : (1983) 2 SCR 287].‛ 27.2. In the case of P.D. Aggarwal (supra), Hon‟ble Supreme Court has held as under:- ‚15. The Office Memorandum dated December 7, 1961 introduces quotas for filling up vacancies Printed from counselvise.com WP(C) 7226/2019 and batch Page 53 of 73 in the cadre of Assistant Engineers in the Public Works Department as well as Irrigation and Local Self Government Engineering Departments by providing direct recruitment through competitive examination to both permanent and temporary vacancies of Assistant Engineers (Civil, Electrical and Mechanical). It has been provided therein that the quota of 50 per cent of the vacancies in the cadre of Assistant Engineers in a year will be filled by direct recruits through competitive examination as well as it provides 25 per cent of the permanent posts to be filled up by selection from amongst temporary Assistant Engineers recruited through the Commission. As a concession however, it has provided that the quota of direct recruits through competitive examination will be 25 per cent instead of 50 per cent as there are large number of temporary Assistant Engineers from whom the selection can be made to the vacancies in the permanent posts of Assistant Engineers by selection. This memorandum has subsequently been incorporated in the amended rules of U.P. Service of Engineers 1969. In Rule 5 of the said Rules provision has been made for direct recruitment both in permanent vacancies as well as in officiating or temporary vacancies on the basis of competitive examination conducted by the Public Service Commission and the criteria laid down is that those who are more meritorious judged by the result of the examination and occupy higher place will be recruited to the permanent vacancies whereas others less meritorious judged by their performance in the competitive examination will be recruited to the post of officiating or temporary vacancies Printed from counselvise.com WP(C) 7226/2019 and batch Page 54 of 73 of Assistant Engineers. It has also been provided therein that the temporary Assistant Engineers already recruited in the department in consultation with the Commission will be permitted to compete in the examination and if they can do well in the competitive examination then they may be appointed in the permanent posts of Assistant Engineers. This rule if considered properly will clearly show that direct recruits against permanent vacancies on the basis of the competitive examination will score a march over the Assistant Engineers who have been appointed substantively in temporary posts of the cadre and have become member of the service. They will be deprived of having their services reckoned from the date of their substantive appointment to temporary posts for the purpose of determination of seniority. In accordance with the provisions of Rule 23 of the amended rules of 1971 which has been substituted for the old rules of 1936 seniority in the service has to be determined by the date of order of appointment in a substantive vacancy. As a result this rule expressly debars Assistant Engineers who have been appointed long before the appointment of the direct recruits under the amended rules of 1969 to have their long years of service as Assistant Engineers after being appointed substantively and after being members of the service fulfilling all the tests prescribed within the meaning of Rule 3 of the rules of 1936 and also under Rule 3(b) as amended by the 1969 amendment to be left out in fixation of seniority. In other words these temporary Assistant Engineers will ever remain temporary though they have been rendering identical Printed from counselvise.com WP(C) 7226/2019 and batch Page 55 of 73 service for long years and having same educational qualification and long experience in the service. 16. This memorandum dated December 7, 1961 was considered in Baleshwar Dass case [(1980) 4 SCC 226 : 1980 SCC (L&S) 531 : (1981) 1 SCR 449 : 1980 Lab IC 1155] by this Court and it was held that ‚this GO was not arbitrary insofar as it fixes the proportion of permanent vacancies to be filled from various sources, and it has statutory force being under Rule 6‛. It has also been observed that: [SCC p. 238, SCC (L&S) p. 544, para 22] ‚The office memorandum makes it clear that direct recruitments will be made to ‘both permanent and temporary vacancies of Assistant Engineers’. But this scheme of 1961 cannot stand in isolation and has to be read as subordinate to the 1936 Rules. After all, the 1961 Memorandum cannot override the Rules which are valid under Article 313, and so must be treated as filling the gaps, not flouting the provisions.‛ (emphasis in original) Hence the said OM does not affect the petitioners who have become members of the Service and are entitled to have their seniority reckoned from the date of their being member of the Service according to Rule 23 of the 1936 Rules. The 1969 Rules and 1971 Rules have however, affected the rights of the respondents who have become members of the Service being substantively appointed in temporary posts as Assistant Engineers inasmuch as there has been an amendment effected in Rule Printed from counselvise.com WP(C) 7226/2019 and batch Page 56 of 73 3(b) by providing that a member of the Service meant a government servant appointed in a substantive capacity to a post in the cadre of the Service. Rule 3(c) also amends the earlier provisions by meaning direct recruitment as in the manner prescribed in Rules 5(a)(i) and 5(b)(i). Similar amendments have been made in Rules 5 and 6. The effect of these amendments is that Assistant Engineers who have become members of the Service being appointed substantively in temporary posts will no longer be members of the Service and will have to wait till they are selected and appointed as Assistant Engineers under Rule 5(a)(ii) against quota fixed by Rule 6 for this purpose. This creates serious prejudice to them and it also creates uncertainty as to when they will be selected and appointed against the quota set up for such selection under Rule 5(a)(ii). The amended Rule 23 lays down that a seniority will be determined from the date of order of appointment in substantive vacancy. These amended Rule 23 lays down that seniority will be determined from March 1, 1962 to the existing officers i.e. the respondents appointed substantively against temporary vacancies. It has been urged that government has the power to amend rules retrospectively and such rules are quite valid. Several decisions have been cited of this Court at the bar. Undoubtedly the Government has got the power under proviso to Article 309 of the Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospective amendments cannot take away the vested rights and the amendments must be reasonable, not arbitrary or discriminatory Printed from counselvise.com WP(C) 7226/2019 and batch Page 57 of 73 violating Articles 14 and 16 of the Constitution. 17. In the case T.R. Kapur v. State of Haryana [1986 Supp SCC 584] (in which one of us was a party) this Court observed: (SCC p. 595, para 16) ‚It is well settled that the power to frame rules to regulate the conditions of service under the proviso to Article 309 of the Constitution carries with it the power to amend or alter the rules with a retrospective effect: B.S. Vadhera v. Union of India [(1968) 3 SCR 575 : 1969 Lab IC 100 : (1970) 1 LLJ 499] , Raj Kumar v. Union of India [(1975) 4 SCC 13 : 1975 SCC (L&S) 198 : (1975) 3 SCR 963] , K. Nagaraj v. State of A.P. [(1985) 1 SCC 523 : 1985 SCC (L&S) 280] and State of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771 : (1974) 1 LLJ 121] . It is equally well settled that any rule which affects the right of a person to be considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well-recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically Printed from counselvise.com WP(C) 7226/2019 and batch Page 58 of 73 provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotion cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Articles 14 and 16(1) of the Constitution.‛ 27.3. In the case of Suhas H. Pophale (supra), Hon‟ble Supreme Court has held as under:- ‚45. It has been laid down by this Court time and again that if there are rights created in favour of any person, whether they are property rights or rights arising from a transaction in the nature of a contract, and particularly if they are protected under a statute, and if they are to be taken away by any legislation, that legislation will have to say so specifically by giving it a retrospective effect. This is because prima facie every legislation is prospective (see para 7 of the Constitution Bench judgment in Janardhan Reddy v. State [1950 SCC 898 : AIR 1951 SC 124 : (1951) 52 Cri LJ 391] ). In the instant case, the appellant was undoubtedly protected as a ‚deemed tenant‛ under Section 15-A of the Bombay Rent Act, prior to the merger of the erstwhile Insurance Company with a government company, and he could be removed only by following the procedure available under the Bombay Rent Act. A ‚deemed tenant‛ under the Bombay Rent Act, continued to be protected under the succeeding Act, in view of the definition of a ‚tenant‛ under Section 7(15)(a)(ii) of the Maharashtra Rent Control Printed from counselvise.com WP(C) 7226/2019 and batch Page 59 of 73 Act, 1999. Thus, as far as the tenants of the premises which are not covered under the Public Premises Act are concerned, those tenants who were deemed tenants under the Bombay Rent Act continued to have their protection under the Maharashtra Rent Control Act, 1999. Should the coverage of their premises under the Public Premises Act make a difference to the tenants or occupants of such premises, and if so, from which date? 54. Having noted the aforesaid observations, it is very clear that in the facts of the present case, the appellant's status as a deemed tenant was accepted under the State enactment, and therefore he could not be said to be in ‚unauthorised occupation‛. His right granted by the State enactment cannot be destroyed by giving any retrospective application to the provisions of the Public Premises Act, since there is no such express provision in the statute, nor is it warranted by any implication. In fact his premises would not come within the ambit of the Public Premises Act, until they belonged to Respondent 1 i.e until 1-1-1974. The corollary is that if Respondent 1 wanted to evict the appellant, the remedy was to resort to the procedure available under the Bombay Rent Act or its successor Maharashtra Rent Control Act, by approaching the forum thereunder, and not by resorting to the provisions of the Public Premises Act. 60. It is true that Section 15 of the Public Premises Act creates a bar of jurisdiction to entertain suits or proceedings in respect of eviction of any person in an unauthorised occupation. However, as far as the relationship between Respondent 1, the other general insurance companies, LIC, nationalised banks Printed from counselvise.com WP(C) 7226/2019 and batch Page 60 of 73 and such other government companies or corporations, on the one hand and their occupants/licensees/tenants on the other hand is concerned, such persons who are in occupation prior to the premises belonging to or taken on lease by such entities, will continue to be governed by the State Rent Control Act for all purposes. The Public Premises Act will apply only to those who come in such occupation after such date. Thus, there is no occasion to have a dual procedure which is ruled out in para 66 of Ashoka Mktg. [Ashoka Mktg. Ltd. v. Punjab National Bank, (1990) 4 SCC 406] We must remember that the occupants of these properties were earlier tenants of the erstwhile insurance companies which were the private landlords. They have not chosen to be the tenants of the government companies. Their status as occupants of the public insurance companies has been thrust upon them by the Public Premises Act. 64. As far as the eviction of unauthorised occupants from public premises is concerned, undoubtedly it is covered under the Public Premises Act, but it is so covered from 16-9- 1958, or from the later date when the premises concerned become public premises by virtue of the premises concerned vesting into a government company or a corporation like LIC or the nationalised banks or the general insurance companies like Respondent 1. Thus there are two categories of occupants of these public corporations who get excluded from the coverage of the Act itself. Firstly, those who are in occupation since prior to 16-9-1958 i.e. prior to the Act becoming applicable, are clearly outside the coverage of the Act. Secondly, those who come in occupation, thereafter, but prior to the date of the premises concerned Printed from counselvise.com WP(C) 7226/2019 and batch Page 61 of 73 belonging to a government corporation or a company, and are covered under a protective provision of the State Rent Act, like the appellant herein, also get excluded. Until such date, the Bombay Rent Act and its successor Maharashtra Rent Control Act will continue to govern the relationship between the occupants of such premises on the one hand, and such government companies and corporations on the other. Hence, with respect to such occupants it will not be open to such companies or corporations to issue notices, and to proceed against such occupants under the Public Premises Act, and such proceedings will be void and illegal. Similarly, it will be open for such occupants of these premises to seek declaration of their status, and other rights such as transmission of the tenancy to the legal heirs, etc. under the Bombay Rent Act or its successor Maharashtra Rent Control Act, and also to seek protective reliefs in the nature of injunctions against unjustified actions or orders of eviction if so passed, by approaching the forum provided under the State Act which alone will have the jurisdiction to entertain such proceedings. 70. For the reasons stated above, we allow this appeal and set aside the impugned judgment and order dated 7-6-2010 rendered by the High Court of Bombay in Suhas H. Pophale v. Oriental Insurance Co. Ltd. [Suhas H. Pophale v. Oriental Insurance Co. Ltd., (2010) 5 Mah LJ 744 : (2010) 4 Bom CR 279] The said writ petition shall stand allowed, and the judgment and order dated 17-1-1996 passed by the City Civil Court, Mumbai, as well as the eviction order dated 28-5-1993 passed by Respondent 2 against the appellant will stand set aside. The proceedings for eviction from Printed from counselvise.com WP(C) 7226/2019 and batch Page 62 of 73 premises, and for recovery of rent and damages initiated by the first respondent against the appellant under the Public Premises Act, 1971, are held to be bad in law, and shall therefore stand dismissed. We however, make it clear, that in case the respondents intend to take any steps for that purpose, it will be open to them to resort to the remedy available under the Maharashtra Rent Control Act, 1999, provided they make out a case therefor. The parties will bear their own costs.‛ 27.4. Again in the case of Tushar Ranjan Mohanty (Supra), Hon‟ble Supreme Court has held as under:- ‚14. The legislatures and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. 15. Respectfully following the law laid down by this Court in the judgments referred to and quoted above, we are of the view that the retrospective operation of the amended Rule 13 cannot be sustained. We are satisfied that the retrospective amendment of Rule 13 of the Rules takes away the vested rights of Mohanty and Printed from counselvise.com WP(C) 7226/2019 and batch Page 63 of 73 other general category candidates senior to Respondents 2 to 9. We, therefore, declare amended Rule 13 to the extent it has been made operative retrospectively to be unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. We strike down the retrospective operation of the rule. In the view we have taken on the point it is not necessary to deal with the other contentions raised by Mohanty.‛ 27.5. Thereafter, in the case of M/S Shah Sadiq & Sons (Supra), Hon‟ble Supreme Court has held as under:- ‚14. Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assessee under the Act of 1922. A right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General clauses Act, 1897. 15. In this case the ‚savings‛ provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the ‚savings‛ provision Printed from counselvise.com WP(C) 7226/2019 and batch Page 64 of 73 stand saved. But, that does not mean that rights which are not saved by the ‚savings‛ provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is not saved expressly by Section 297 of the Income Tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implication.‛ 27.6. Again dealing with the issue, Hon‟ble Supreme Court in the case of Hitendra Vishnu Thakur (supra), Hon‟ble Supreme Court has held as under:- ‚26. …………………………… ………… From the law settled by this Court in various cases, the illustrative though not exhaustive principles, which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects Printed from counselvise.com WP(C) 7226/2019 and batch Page 65 of 73 procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.‛ 27.7. Again, in the case of Thyssen Stahlunion Gmbh (supra), Hon‟ble Supreme Court has held as under:- ‚28. Section 85(2)(a) is the saving clause. It exempts the old Act from complete obliteration, so far as pending arbitration proceedings are concerned. That would include saving of whole of the old Act up till the time of the enforcement of the award. This (sic Thus) Section 85(2)(a) prevents the Printed from counselvise.com WP(C) 7226/2019 and batch Page 66 of 73 accrued right under the old Act from being affected. Saving provision preserves the existing right accrued under the old Act. There is a presumption that the legislature does not intend to limit or take away vested rights unless the language clearly points to the contrary. It is correct that the new Act is a remedial statute and, therefore, Section 85(2)(a) calls for a strict construction, it being a repealing provision. But then as stated above where one interpretation would produce an unjust or an inconvenient result and another would not have those effects, there is then also a presumption in favour of the latter.‛ 27.8. In view of the aforesaid propositions of law, so laid down in the cases discussed herein above, this Court is of the view that the additional ground, so taken by the respondent No.4 in its additional affidavit, cannot be accepted. Firstly, such ground finds no mention in the impugned order dated 12.06.2019, and in view of the decision of Hon‟ble Supreme Court in the case of Mohinder Singh Gill and Another (supra) that reason cannot be supplemented by way of an affidavit. Secondly, the right of the petitioners‟ accrued under the Policy Decision adopted by the Government under Rules 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977 which is still holding the field having not been repealed or overruled till date, and the same cannot be negated by applying either the Act of 2011 or the Act of 2017, in view of the decision Printed from counselvise.com WP(C) 7226/2019 and batch Page 67 of 73 discussed above, especially in M/S Shah Sadiq & Sons (supra). And that being so the argument, so advanced by Mr. Talukdar, learned standing counsel for the respondent authorities, cannot be acceded to. 28. While similarly situated schools were provincialised in the year 1993, and the teachers of said school also receiving all such benefits, denial of such benefit to the petitioners‟ school violates their right guaranteed under Article 14 and 16 of the Constitution of India, as held in the case of E.P. Royappa (supra). In such a situation, the decision taken by the respondent No.4, adversely affecting their interests, they have justifiable grievance in the light of the doctrine of legitimate expectation, to receive similar benefit, that have been granted to similarly situated schools and teachers. 28.1. It is to be noted here that while dealing with the issue of legitimate expectation, Hon‟ble Supreme Court in the case of Confederation of Ex-Servicemen Assns. (supra), has held as under: ‚33. We are also not impressed by the argument that all medical benefits and facilities must be provided to ex-servicemen under the doctrine of ‚legitimate expectation‛. The doctrine of ‚legitimate expectation‛ is a ‚latest recruit‛ to a long list of concepts fashioned by the courts for review of administrative actions. No doubt, the doctrine has an important place in the development of administrative law and particularly law relating to ‚judicial review‛. Printed from counselvise.com WP(C) 7226/2019 and batch Page 68 of 73 Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such a situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue. 34. The expression ‚legitimate expectation‛ appears to have been originated by Lord Denning, M.R. in the leading decision of Schmidt v. Secy. of State [(1969) 1 All ER 904: (1969) 2 WLR 337: (1969) 2 Ch 149 (CA)] .In Attorney General of Hong Kong v. Ng Yuen Shiu [(1983) 2 All ER 346: (1983) 2 AC 629: (1983) 2 WLR 735 (PC)], Lord Fraser referring to Schmidt [(1969) 1 All ER 904: (1969) 2 WLR 337: (1969) 2 Ch 149 (CA)] stated: (All ER p. 350 h-j) ‚The expectations may be based on some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.‛ (emphasis supplied) Printed from counselvise.com WP(C) 7226/2019 and batch Page 69 of 73 35. In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised.‛ 29. It is to be noted here that in WP(C)No./6013/2023 (Srimati Nabanita Mandal vs. State of Assam and 6 Ors.), vide Order dated 02.02.2024, a Co-ordinate Bench of this Court, while dealing with the issue of giving retrospective effect of regularization/provincialisation of service of the petitioner in that case, held as under:- ‚16. In view of the said position and no reason being assigned for the denial to the petitioner of her regularization/ provincialization of services with effect from the date of her initial appointment; this Court is of the considered view that the petitioner, in the facts and circumstances involved, is entitled for regularization/provincialization of her services w.e.f. 01.11.1990. 17. In view of the said conclusion reached; this writ petition stands disposed of requiring the Secretary, Department of School Education, Government of Assam, to pass appropriate orders towards regularizing the services of the petitioner w.e.f. 01.11.1990 in terms of the Printed from counselvise.com WP(C) 7226/2019 and batch Page 70 of 73 proposal as put-up by the Director, Elementary Education, Government of Assam, vide communication, dated 25.11.2022. The Secretary, Department of School Education, Government of Assam, shall also take note of the fact that teachers junior to the petitioner, working in the said school were considered for provincialization of their services with effect from the dates of their initial appointment which benefit was denied to the petitioner. Necessary orders as would be called for in the matter, be passed by the Secretary, Department of School Education, Government of Assam, within a period of 2(two) months from the date of receipt of a certified copy of this order. Page No.# 9/9 The order as required to be passed by the Secretary, Department of School Education, Government of Assam, in terms of the directions contained hereinabove; shall hold the field and shall supersede the order, dated 10.03.2015, issued by the Director, Elementary Education, Government of Assam, towards regularizing the services of the petitioner with prospective effect. 18. The services of the petitioner now being directed to be regularized w.e.f. 01.11.1990, she would be entitled to the salaries as due to her from the said date and further, she would be covered by the provisions of the Assam Service (Pension) Rules, 1969, and would also be eligible for pension and pensionary benefits.‛ Conclusion :- Printed from counselvise.com WP(C) 7226/2019 and batch Page 71 of 73 30. Under the given factual and legal matrix, this Court finds sufficient merit in this petition. And accordingly, the same stands allowed. The impugned order dated 12.06.2019, stands set aside and quashed. In view of the given factual and legal matrix, as discussed in the preceding para, by a mandamus of this Court, the Director, Elementary Education, Assam is directed to pass a fresh order towards provincialisation of the services of the petitioners w.e.f. the date when similarly situated 1255 numbers of schools and services of teachers were provincialized, keeping in mind the following facts and circumstances: (i) Right of the petitioners accrued in terms of the Notification dated 05.10.1993, issued by the Governor of Assam in exercise of power under Rules 5 and 7 of the Assam Elementary Education (Provincialisation) Rules, 1977, which are Rules and Guidelines and Policy decision for provincialisation of the venture LP/ME/MEM/Junior Basic/Senior Basic/MV Schools in Assam. (ii) The Rules of 1977 was framed and the Act of 1974 i.e. the Assam Elementary Education (Provincialisation) Act, 1974, and this Act and Rules of 1977 have not been repealed by the subsequent enactment. (iii) Since the right of the petitioners to provincialize their services arose under the Rules of 1977 and the Rules and Guidelines and Policy decision dated 05.10.1993, the same cannot be decided under the Assam Venture Educational Printed from counselvise.com WP(C) 7226/2019 and batch Page 72 of 73 Institutions (Provincialisation of Services) Act, 2011, as amended in the year 2012, or under the Assam Education (Provincialisation of Services of Teachers and Re- organisation of Educational Institutions) Act, 2017, as no retrospective effect is given to the same. (iv) It is well settled that right which are not saved by the “savings” provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. (v) Since the schools, where the petitioners have been serving and also served, left out of provincialisation without any ground when the respondent authorities have provincialized 1255 numbers of ME schools in 1991, in spite of being similarly situated, their rights, guaranteed under Article 14, 16(1) of the Constitution of India stand violated. (vi) There is no material to suggest that the present petitioners and the schools in which they are serving and also served, are not similarly situated with the teachers and schools of 1255 numbers of ME schools in the year 1991. (vii) Because of non-provincialisation of schools and services of the petitioners along with 1255 numbers of ME schools, serious prejudice is caused to them and they have been Printed from counselvise.com WP(C) 7226/2019 and batch Page 73 of 73 deprived of not only the salary, but also they will be deprived of the pension and pensionary benefits. 31. Let the aforementioned exercise be carried out with in a period of three months from the date of receipt of certified copy of this judgment and order. The petitioners shall obtain a certified copy of this judgment and order and place the same before the respondent authorities, within a period of one week from today. 32. In terms of above this writ petition stands disposed of leaving the partied to bear their own costs. J U D G E Comparing Assistant Printed from counselvise.com "