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2012 DIGILAW 186 (GAU)

Mukul Ch. Bordoloi v. State of Assam

2012-02-10

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. All these writ petitions pertain to selection and appointment of Headmasters in the High Schools throughout the State of Assam. While some of the petitioners have challenged the legality and/or validity of the selection, some have prayed for appropriate direction towards implementation of the select list that was prepared by the Selection Board pursuant to the selection conducted. Upon hearing the learned counsels for the parties at some length and as recorded in the order dated 6.1.2012 the following issues emerged for consideration : (1) Whether, the vacancies that arose prior to coming into force the Assam Secondary Education (Provincialised) Service Rules, 2003 can be filled up by applying the provisions of the said Rules, or the said vacancies are required to be filled up as per the provisions of the earlier Rules viz. the Assam Secondary Education (Provincialisation) Service Rules, 1982? (2) Whether, the basic qualification as laid down in Rule 14 of the Rules of 2003 can be relaxed in terms of Rule 30 of the said Rules? (3) Whether, the selection process that was initiated in the year 1999/2002 but did not attain its finality can be said to be still pending for finalisation at this distant date, and even if the selection process was initiated on the basis of the earlier set of rules but the said process did not materialise, then, whether, the said vacancies are required to be filled up by applying the provisions of either of the Rules, or can be filled up by the new set of rules, that is the 2003 Rules? (4) Whether, the plea that since some of the petitioners have been sent for B.T./B.Ed Course, till completion of the said Course by the teachers, the selection for the posts of Headmaster should be kept in abeyance is sustainable? (5) Whether, the decision of the government not to send those teachers who completed 50 years of age for such training can be said to be arbitrary? Responding to the said order, the respondent No. 1 has filed an affidavit justifying the selection conducted for appointment of Headmasters on promotion on the basis of the selection conducted in accordance with the provisions of Assam Secondary Education (Provincialised) Service Rules, 2003. 2. The respective learned counsels appearing for the petitioners and the respondents have advanced their arguments justifying their respective stand in the writ petitions. 2. The respective learned counsels appearing for the petitioners and the respondents have advanced their arguments justifying their respective stand in the writ petitions. I have given my anxious consideration to the same. 3. As recorded in the said order dated 6.1.2012, the challenge to the selection are on the following grounds : (a) The vacancies having occurred prior to coming into force the 2003 Rules, the said vacancies are required to be filled up as per provisions of the earlier set of rules namely Assam Secondary Education (Provincialised) Service Rules, 1982. (b) Even if the selection conducted as per the provisions of 2003 Rules is held to be justified, the candidates who were not called for the selection on the ground of being not eligible having lacked in the education qualification of BT/B.Ed degree as per the provision contained in Rule 30 of the 2003 Rules, it was incumbent on the part of the State Government in the Education Department to extend relaxation having regard to the undue hardships that was caused to the said candidates. (c) As envisaged in the Rule of 2003, it was incumbent on the part of the respondents to hold the selection year-wise and in case of any difficulty to hold the selections, while conducting the consolidated selection, year-wise panel ought to have been prepared. (d) Some of the candidates having already appeared in the selection that was conducted during the period from 1999 to 2002, it was incumbent on the part of the respondents to declare the results thereof instead of abandoning the same so as to fall back on the 2003 Rules towards conducting the selection in 2010. (e) Some of the candidates, who have been sent for BT/B.Ed course were deprived of participation in the selection as the selection have been conducted without writing for completion of the said course by them. 4. In support of the plea that the vacancy which arose prior to coming into force the 2003 Rules, learned counsels for the petitioners challenging the selection have placed reliance on the decisions reported in (2007) 11 SCC 605 (Arjim Singh Rathore v. B.N. Chaturvedi); (1998) 9 SCC 223 (B.L. Gupta v. M.C.D.); (1983) 3 SCC 284 (Y.V. Rangaiah v. J. Sreenivasa Rao); 1988 STPL (LE) 14188 SC (P. Ganeswar Rao v. State of A.P.); 1990 STPL (LE) 14959 SC; (2010) 7 SCC 560 (Md. Raisul Islam v. Gokul Mohan Hazarika); (2007) 10 SCC 402 (State of Punjab v. Arun Kumar Aggarwal). 5. On the other hand, Mr. D. Saikia, learned Additional Advocate General Assam representing the official respondents along with Mr. P.N. Goswami, learned Standing Counsel, Education Department has placed reliance on the decision of the Division Bench of this Court dated 31.1.2012 passed in W.P. (C) No. 71/2012 (Kanak Ch. Nath v. State of Assam); (1994) 6 SCC 151 (State of M.P. v. Raghuveer Singh Yadav); (1997) 3 SCC 59 (Dr. K. Ramulu v. Dr. S. Suryaprakash Rao). 6. Before dealing with the principles of law laid down in the aforesaid decisions, it will be appropriate to deal with a few basic facts relevant for the purpose of appreciating the said decisions and to arrive at a decision. An advertisement dated 2.11.2010 was issued by the Director of Secondary Education-cum-Member Secretary, State Selection Board, Assam inviting applications inter alia for the posts of Headmaster/Headmistress/Superintendent of High Schools/High Madrassas. The posts are to be filled up by promotion on the basis of school wise seniority of the Assistant Teachers. The advertisement further stipulates that the selection would be on the basis of seniority and satisfactory annual confidential reports for the last 3 years. It was laid down in the advertisement that minimum qualification for the post is Graduate in Arts/Science or Commerce with BT/B.Ed degree with requisite 10 years of teaching experience as Graduate Teacher. 7. It is the above qualification of BT/B.Ed, which has raised the whole controversy as some of the in-charge Headmasters involved in this proceeding do not possess the said qualification and consequently they could not appear in the selection as either they did not respond to the advertisement or their candidatures had been rejected. 8. According to the candidates, who are not B.Ed or BT degree holder, the vacancies having occurred prior to the aforesaid Rules of 2003, ought to have been filled up on the basis of the earlier existing Rule i.e. Assam Secondary Education (Provincialised) Service Rules, 1982. Rule 9 of the said Rules inter alia provides for promotion to the post of Headmaster from amongst the members of the Graduate having 10/12 years continuous teaching experience. Rule 9 (4) provides that preference would be given to candidates having a Post Graduate Degree in teaching/a degree in Post Graduate teaching (B.Ed or B.T.). 9. Rule 9 of the said Rules inter alia provides for promotion to the post of Headmaster from amongst the members of the Graduate having 10/12 years continuous teaching experience. Rule 9 (4) provides that preference would be given to candidates having a Post Graduate Degree in teaching/a degree in Post Graduate teaching (B.Ed or B.T.). 9. Thus as per Rule 9 of the 1982 Rules B.Ed/BT was a preferential qualification for promotion to the post of Headmaster/Headmistress. As against the said position, under 2003 Rules, the qualification of BT/B.Ed degree is mandatory as per the requirement of Rule 14 of the 2003 Rules. It is in this context, the candidates, who do not possess the said qualification i.e. degree of BT/B.Ed have contended that had the selection had been conducted in respect of the vacancies which occurred prior to coming into force of the 2003 Rules, they would become eligible to offer their candidature with consequential consideration for selection irrespective of the preferential provision made under Rule 9 of the 1982 Rules referred to above. 10. It will be appropriate at this stage to refer to the judgment of the Division Bench dated 31.1.2012 in Kanak Chandra Nath (supra). In the said case, the challenge was to the requirement of possession of BT/B.Ed degree for promotion to the post of Headmaster under Rule 14(4)(i) of the Assam Secondary Education (Provincialised) Service Rules, 2003. Upholding the said qualification, the Division Bench has held that qualification for promotion can be laid down by the appointing authority and higher qualification can be the basis for classification. Reiterating the well settled legal principles in this regard and referring to the decisions cited, the Court has held that there is no conflict in the judgments on the issue. In paragraph 16 of the said judgment, while discussing about the requirement of BT/B.Ed degree in the context of school education, the Division Bench has observed thus : 16. Requirement of BT/B.Ed degree in the context of school education cannot be held to be irrational. No doubt, absence of such requirement for the post in the feeder cadre may create a situation in which no eligible candidate may be found or eligible candidate found may be at the bottom of seniority, but there is nothing to show that such a situation is arising in number of cases. No doubt, absence of such requirement for the post in the feeder cadre may create a situation in which no eligible candidate may be found or eligible candidate found may be at the bottom of seniority, but there is nothing to show that such a situation is arising in number of cases. Such a case may be an isolated one, which can be taken care of by a separate mechanism. Absence of the said qualification for the post of Principal is also no ground for declaring the Rule to be irrational. Qualifications and method of recruitment for the posts is different. We, thus, do not find any ground to interfere with the laying down of qualification for BT/B.Ed degree for promotion to the post of Headmaster. Question of validity of qualifications for the posts of teachers laid down under the NCTE Act and Rules does not arise for consideration as appointments in question are not to the posts of teachers. The said question need not be gone into. 11. Dealing with the plea that while insisting for BT/B.Ed degree for the purpose of promotion to the post of Headmaster, some of the candidates otherwise qualified and quite senior would be deprived of even consideration for promotion to the post of Headmaster, the Division Bench has made the following observation in the said judgment. 17. However, it is advisable that the Department works out appropriate mechanism to deal with situations where there is no candidate with the qualification of B.Ed/BT or candidate available is junior so that the schools do not suffer. Such a mechanism may be worked out and notified within three months from today. We will also suggest that the Education Department may constitute a committee of experts to review the existing qualification within one month from today which may give its report in next two months. The State may take such further action thereafter as may be found appropriate. It is made clear that such an exercise will be no bar to appointments being made earlier, if considered necessary. 12. From the above, what is seen is that the Division Bench has upheld the prescription of qualification/degree of B.Ed/BT. The State may take such further action thereafter as may be found appropriate. It is made clear that such an exercise will be no bar to appointments being made earlier, if considered necessary. 12. From the above, what is seen is that the Division Bench has upheld the prescription of qualification/degree of B.Ed/BT. Although some observation has been made in respect of the consideration of cases of those candidates, who do not possess the said qualification/degree, it has been made clear that the particular exercise, which might be carried out by the State Government will not be a bar to appointments being made earlier to the said exercise. 13. During the course of hearing, Mr. D. Saikia, learned Additional Advocate General, Assam has also produced the copy of the judgment and order dated 6.2.2012 passed in W.A. No. 22/2012 (Sri Dulu Ranjan Roy v. State of Assam and others). The said judgment is on an appeal against the order dated 1.2.2012 passed in Misc. Case No. 2562/2011 arising out of W.P. (C) No. 4079/2011, by which the earlier interim order was vacated. The interim order was to the effect that the petitioner involved in the writ petition would continue as Headmaster in-charge of the particular school namely Lakshmi Union High School, Jorhat. While vacating the interim order, this Court noticed the aforementioned fact including the fact that the writ petitioner did not possess the required qualification of BT/B.Ed. As in the instant batch of writ petitions, in the said writ petition also the plea raised is that the vacancy being occurred prior to 2003 Rules, the same is required to be filled up as per the provisions of (sic) Rules. This Court has noticed the fact that even under the 1982 Rules, preference was available to candidates possessing BT/B.Ed degree. Consequently the stay order was vacated, making a grievance, against which, the writ petitioner had preferred W.A. No. 22/2012. The Division Bench by its aforesaid judgment and order dated 6.2.2012 has upheld the order of vacation of the interim direction. This judgment has been referred to in view of the fact that the parties towards adjudication of the interim matter had raised similar issues. 14. The Division Bench by its aforesaid judgment and order dated 6.2.2012 has upheld the order of vacation of the interim direction. This judgment has been referred to in view of the fact that the parties towards adjudication of the interim matter had raised similar issues. 14. The State respondents in their counter affidavit, while dealing with the aforesaid issues noticed by this Court vide order dated 6.1.2012, has stated that while the Rules of 1982 was in force, the National Council for Teaching Education (NCTE) issued a statutory regulation on 3.9.2001 prescribing inter alia minimum qualification for recruitment of teachers in schools. The said regulation is known as the NCTE (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) Regulation, 2001. As per the said regulation, for recruitment of teachers in a Secondary/High School, the minimum qualification shall be graduate with Bachelor of Education (B.Ed). Thus, it has been contended that even otherwise also and/or irrespective of 2003 Rules, the requirement of being holder of BT/B.Ed degree was already there pursuant to the said regulation of 2001. 15. The respondents have also questioned the conduct of the unsuccessful candidates in raising the pleas against the selection that has attained finality by stating that when the Rule 2003 made the position clear that to become a Headmaster, one will have to be a BT/B.Ed degree holder, by way of raising the plea after a long delay of 8 years. It will be pertinent to mention here that in some of the writ petitions, the plea of the successful candidates is that vacancies involved in the said writ petition had occurred after 2003 Rules. 16. In both the Rules i.e. 1982 Rule and 2003 Rule, the emphasis is on BT/B.Ed degree. As noted above, even under 1982 Rule, preference was indicated to those candidates possessing degree of BT/B.Ed. The position that has emerged from the challenge made to the prescription of mandatory qualification of BT/B.Ed has been noted above. The Division Bench of this Court in Kanak Ch. Nath (supra) has upheld the prescription of the said qualification. 17. In Raghuveer Singh Yadav (supra), the Apex Court has held that the Government is entitled to conduct selection in accordance with the changed Rules and make final recruitment. The Division Bench of this Court in Kanak Ch. Nath (supra) has upheld the prescription of the said qualification. 17. In Raghuveer Singh Yadav (supra), the Apex Court has held that the Government is entitled to conduct selection in accordance with the changed Rules and make final recruitment. In paragraph 5 of the judgment, it has been observed thus : It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules. 18. In Dr. K. Ramulu (supra), noticing the fact that the respondents involved in the said case did not acquire any vested right for being considered for promotion in accordance with the repealed rules, the Apex Court held that the Tribunal erred in directing the Government to prepare and operate the particular panel for promotion. In that case, the Government had taken a conscious decision not to make any appointment till the amendment of the particular rules. In such circumstances, the Apex Court held that it could not have been insisted upon that the vacancies should be filled up as per the pre-amended rules. 19. In Md. Raisul Islam (supra), it has been observed thus : While at first glance the decision in M. Ramulu case may appear to be on a par with the facts of the instant case, there is yet a distinction which cannot be ignored. 19. In Md. Raisul Islam (supra), it has been observed thus : While at first glance the decision in M. Ramulu case may appear to be on a par with the facts of the instant case, there is yet a distinction which cannot be ignored. While in the present case a process of selection had been set in motion under the existing Rules and a list of selected candidates had also been recommended by the APSC, in K. Ramulu case the Government had merely taken a decision not to fill up the vacancies until the amended Rules came into force. In K. Ramulu case no process had been initiated for the purpose of filling up any of the vacancies. In such circumstances, where no candidate had either been invited or interviewed or selected for appointment as has been done in the instant case, this Court rightly held that the Government was competent to take a decision not to fill up the vacancies. 20. In Arun Kumar Aggarwal (supra), reiterating the aforesaid proposition of law, the Apex Court noticing the facts and circumstances involved, held that there was nothing wrong in conducting the selection following the new Rules instead of the old Rules. 21. In the instant case, although some of the petitioners/candidates have contended that they had participated in the selection conducted during 1999 to 2002, but they have not been able to furnish any material and relevant particulars relating to the said selection. It is not their case that the said selection had attained its finality. No vested right has accrued to them. Even if it is assumed and/or held that they had participated in the particular selection that was conducted way back in 1999-2002, in absence of any follow-up action in that regard, it cannot be said that a vested right has accrued to them. Moreover, the said candidates also did not make any grievance in respect of the said selection which will go to show that they were aware that the said selection had spent its force coupled with the fact that the said candidates have also contended that but for the said qualification of BT/B.Ed, they could have participated in the 2003 selection. In fact it is their pleaded case that they should be allowed to participate in the selection as they have been discriminated for lack of the said qualification. In fact it is their pleaded case that they should be allowed to participate in the selection as they have been discriminated for lack of the said qualification. Thus the said candidates cannot take two different stands. In one hand they have contended that the selection ought to have been conducted on the basis of the 1982 Rules, but on the other hand it has been contended that the higher qualification of BT/B.Ed in 2003 Rules has deprived of participation in the impugned selection, but for which they could have participated in the said selection. 22. The decisions on which the aforesaid candidates have placed reliance is to bring home the argument that the vacancy which occurred prior to coming into force of 2003 Rules, ought to have been filled up as per the provisions of 1982 Rules. Apart from the fact that the writ petitions lack of material particulars in respect of the position as to when the vacancies had occurred. The said candidates have also not dealt with the requirement of B.Ed/BT degree even under 1982 Rules. As noted above, Rule 9 of the said Rules clearly provided that preference would be given to candidates having BT/B.Ed. degree. Even if it is assumed that the candidates who either did not participate in the present selection or were not invited for the selection because of lack of the said qualification are also selected candidates, the selected candidates possessing the degree of BT/B.Ed would definitely score a march over the said candidates. 23. Needless to say that ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. In the instant case, no selection could be held for the post of Headmaster for years together because of various reasons. By the time, the selection was conducted, 2003 Rules was in operation for about 7 years. At no point of time, the candidates lacking qualification of BT/B.Ed raised any grievance against the said Rule. It is only after the selection process was initiated, they started making grievance against the same on the aforesaid ground of requirement of filling up the vacancies that arose prior to 2003 Rules as per the provisions of 1982 Rules. At no point of time, the candidates lacking qualification of BT/B.Ed raised any grievance against the said Rule. It is only after the selection process was initiated, they started making grievance against the same on the aforesaid ground of requirement of filling up the vacancies that arose prior to 2003 Rules as per the provisions of 1982 Rules. But the fact is that even under 1982 Rules, preference was given to those candidates having BT/B.Ed degree. 24. This now leads us to the plea of some of the candidates that although they do not possess the required qualification of BT/B.Ed degree, but they having acquired the same after the selection, their cases should be considered. In this connection, they have referred to the provisions of Rule 30 of 2003 Rules, which reads as follows : 30. Where the Government is satisfied that operation of any of these rules causes undue hardship in any particular case, it may dispense with or relax the requirement of these rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner : Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in these rules. 25. The above aspects of the matter has been dealt with in the counter affidavit filed by the respondent No. 1. It has been stated that conditions of recruitment and conditions of service are distinct and that the former cannot be relaxed. Law is well settled that the basic minimum qualification prescribed in the Recruitment Rules cannot be relaxed in the garb of relaxation of conditions of service. As regards the plea of some of the petitioners that they acquired required qualification of BT/B.Ed after the selection, the authority may ex-famine their cases in terms of the ' observation made by the Division Bench in Kanak Ch. Nath (supra). As regards the plea of preparation of year-wise panel, suffice it to say that the selection having been conducted school-wise, the candidates are no way prejudiced. The fact of the matter is that the said candidates are not qualified as per the provisions of 2003 Rules. The Apex Court in the case of J & K Public Service Commission v. Dr. Narinder Mohan, reported in AIR 1994 SC 1808 has observed thus : 12. The fact of the matter is that the said candidates are not qualified as per the provisions of 2003 Rules. The Apex Court in the case of J & K Public Service Commission v. Dr. Narinder Mohan, reported in AIR 1994 SC 1808 has observed thus : 12. It is difficult to accept the contention of Sri Rao to adopt the chain system of recruitment by notifying each year's vacancies and for recruitment of the candidates found eligible for the respective years. It would be fraught with grave consequences. It is settled law that the Government need not immediately notify vacancies as soon as they arose. It is open, as early as possible, to inform the vacancies existing or anticipated to the PSC for recruitment and that every eligible person is entitled to apply for and to be considered of his claim for recruitment provided he satisfies the prescribed requisite qualifications. Pegging the recruitment in chain system would deprive all the eligible candidates as on date of inviting application for recruitment offending Artcs. 14 and 16. 26. In view of the above, the selection conducted for the post of Headmaster impugned in these proceedings is upheld. Consequently the selected candidates will be entitled to get recruitment as Headmaster of the schools for which they have been selected. As regards the observation made in paragraph 17 of the Division Bench judgment in Kanak Ch. Nath (supra), the matter is left open to the sound discretion of the authority in the Education Department, Government of Assam. Consequent upon this judgment and order, all the interim orders operating in this batch of writ petitions stand vacated. The writ petitions are disposed of. There shall be no order as to costs.