(1.) Heard Mr. K. Bhuiyan, learned counsel for the petitioner. Also heard Mr. A.K. Bhuyan, learned Standing Counsel, B.T.A.D. appearing for Respondent Nos.3,4,5 and 6; Mr. P. Saikia, learned Standing Counsel, Secondary Education appearing for Respondent Nos.1 and 2 and Mr. C.P. Sharma, learned counsel appearing for Respondent No.8. None appears for Respondent No.7 despite service of notice.
(2.) By this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for provincialisation of his service as Grade-IV -Day Section- Chowkidar in Kumarikata High Madrassa in place of Respondent No. 8. List-A, which is referred to in the prayer portion of the writ petition, is annexed as Annexure-10 and the same contains names of some schools and employees found eligible for provincialisation under Section 4 of Assam Venture Educational Institutions (Provincialisation of Services) Act, 2011 (for short, -the Act of 2011-). All the schools mentioned therein are High School/High Madrassa having two classes. The name of Kumarikata High Madrassa appears at Sl. No.34 in the said list and the name of the Respondent No.8 appears against the lone post of Grade-IV in respect of the said school. Though not part of the writ petition, it appears from an order dated 23.08.2013 (Annexure-B of the affidavit-in-opposition of the respondent No. 8) that the Director of Secondary Education, Assam, allotted 11 posts in various categories to Kumarikata High Madrassa in the District of Baksa. It is recorded that services of the incumbents mentioned therein including that of Respondent No.8 were provincialised w.e.f. 01.01.2013. By the said order, service of respondent No. 8 was provincialised as Grade-IV.
(3.) It is submitted by Mr. Bhuiyan that the petitioner was appointed by the Managing Committee in the 'first' Grade-IV post on 17.04.2001 and accordingly, he had joined on 19.04.2001. Such appointment was made in the post of Day Section Chowkidar consequent upon resignation of Md. Abdul Kader, who was working in the school from 05.02.1989. It is stated by Mr. Bhuiyan that the Respondent No.8 was appointed on 29.08.1994 (Annexure-A to the affidavit-in-reply to the affidavit of Respondent Nos.3, 4 and 6) as Grade-IV -Night Section- Chow-kidar. It is submitted by him that post of -Day Section- Chowkidar was created by the school in question earlier in point of time as is demonstrated by the appointment of Abdul Kader in such a post, and therefore, when the petitioner was appointed in the post created earlier, notwithstanding the fact that he had been appointed subsequent to the Respondent No.8 in the school, by virtue of his holding the 'first' post of Grade-IV, he will be entitled to provincialisation ahead of the Respondent No.8. He has also drawn the attention of the Court to Annexure-9 of the writ petition to contend that the list prepared for the purpose of provincialisation by the school did not even have the name of Respondent No.8 against the post of Grade-IV and it only contained the name of the petitioner. Placing reliance on the affidavit-in-reply to the affidavit-in-opposition filed by the Respondent No.8, and more particularly, to Annexure-A and Annexure-C thereof, he has contended that the petitioner was not upgraded to the post of -Day Section- Chowkidar and that the writ petitioner continued as -Day Section- Chowkidar from the date of his appointment continuously and therefore, he is entitled to provincialisation of his services. In support of his submissions, Mr. Bhuiyan has placed reliance upon a judgment of the Apex Court in State of Tamil Nadu and Ors. Vs. Amalaa-nnai Higher Secondary School, reported in (2009) 9 SCC 386.