CHANDAN KUMAR NEOG Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. N. Dutta, the learned Senior Counsel appearing for the WP(C) No. 3190/2012, WP(C) No.5105/2012, WP(C) No.5825/2012, WP(C) No.394/2013, WP (C) No.780/2013 and WP(C) No.1734/2013. The learned Counsel Mr. B. Chakraborty argues for the petitioners in WP (C) No. 2050/2014, WP(C) No.268/2015 and WP(C) No.269/2015. The learned Senior Counsel Mr. B. Banerjee represents the petitioners in WP(C) No.3784/2014. Mr. P. Mahanta, the learned advocate appears for the petitioners in the WP(C) No.6073/2013 and WP(C) No.6075/2013. The petitioners in the WP(C) No.780/2013 are the excess teachers of M.E. Schools and on their behalf Mr. S.S. Goswami makes submission. The L.P. School teachers have filed the WP(C) No.6861/2014 and other cases and the learned lawyer Ms. D. Borgohain makes elaborate arguments on their behalf by referring to various judicial pronouncements. The learned advocates Mr. M.U. Mandal, Mr. A.M. Borbhuiyan, Mr. K. Sarma, Mr. H. Ali and Mr. R.M. Choudhury and the learned lawyers in the other cases have adopted the same submission for their respective cases.

(2.) The petitioners in these cases in substance, challenge the legal validity of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011 (hereinafter referred to as "the Provincia-lization Act,") and more particularly the Section 4(2) and Section 10(4) as also the Schedule appended, whereby the State has fixed the cap on maximum number of employees, whose services can be provincialized in the concerned category of Venture Institution. It is further provided that where the number of serving employees exceeds the numbers as specified in the Schedule, the provincialization shall be on the basis of seniority and the State shall not have any liability with regard to the excess employees. Under Sub-Section (4) of Section (10) of the Provincialization Act, 2011, the school wise recommendation for provincialization to the permitted number of posts specified in the Schedule can be made by the District Scrutiny Committee and the excess teachers challenge the legality of this provision.

(3.) The Provincialization Act, 2011 was enacted with the twin purpose of provin-cializing the services of the staff of the Venture Educational Institutions and also to restrict further establishment of such institutions in Assam. The "employees" is defined under Section 2(h) to mean all the serving staff, who were appointed before 1.1.2011. Under the eligibility criteria specified in Section 3, only those venture institutions who received permission, recognition, affiliation or concurrence, as the case may be, from the competent authority before 1.1.2006, will be eligible for being considered for provincialization of their staff. Some of the petitioners espousing the cause of primary education for children contend that restriction on further establishment of venture schools will, in given circumstances, undermine the obligation under Article 21A of the Constitution. Petitioners' Submission