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2013 DIGILAW 833 (GAU)

Suresh Chandra Sharma v. State of Assam and Ors.

2013-11-28

BIPLAB KUMAR SHARMA

body2013
Biplab Kumar Sharma, J. Heard Mr. D.K. Sarmah, learned counsel for the petitioner. Also heard Mr. J. Abedin, learned Standing Counsel, Education Department. I have also heard Ms. B. Choudhury, learned counsel representing the respondent No. 4. Both the writ petitions filed by the same petitioner being inter-connected, have been heard analogously and are being disposed of by this common judgment and order. I have carefully considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record. The brief facts leading to filing of the writ petitions by the same petitioner are as follows: 2. WP (C) No. 3117/2013 In this writ petition, the petitioner has challenged the Annexure-P/6 order dated 31.05.2013 passed by the Director of Secondary Education, Assam, by which while holding that the respondent No. 4 is senior to the petitioner, direction has been issued to allow him to function as In-charge Principal of the School in question with financial power under FR-54(b). The order has been passed pursuant to the order of this Court dated 13.08.2012 passed in WP (C) No. 3854/2012. The writ petition was filed by the respondent No. 4 making a grievance against the order dated 02.02.2012 by which the petitioner was allowed to hold charge of the post of Principal of the School. In the writ petition, it was contended that the respondent No. 4 being senior to the present petitioner, he could not have been given the charge of Principal ignoring the seniority of the respondent No. 4. The writ petition was disposed of directing the Director of Secondary Education, Assam, to dispose of the matter upon hearing the parties involved. 3. I have very carefully perused the averments made in the writ petition. On perusal of the writ petition, I do not find any whisper regarding the appointment of the respondent No. 4 in the graduate scale of pay and for that matter as Assistant Teacher in the graduate scale of pay w.e.f. 15.12.1984. As per the own showing of the petitioner (Annexure-P/2), while the date of appointment of the petitioner as Subject Teacher is 18.02.1985, the date of appointment of the respondent No. 4 as Assistant Teacher in the graduate scale of pay is 01.04.1982. As per the own showing of the petitioner (Annexure-P/2), while the date of appointment of the petitioner as Subject Teacher is 18.02.1985, the date of appointment of the respondent No. 4 as Assistant Teacher in the graduate scale of pay is 01.04.1982. In the writ petition, the only ground projected by the petitioner is that since he is B.Ed., degree holder coupled with the fact that he is in a different cadre of Subject Teacher, considered to be higher than that of graduate cadre, he will always rank senior to the respondent No. 4. 4. When the writ petitioner was given the charge of Principal vide order dated 30.01.2012 and it was put to challenge in the aforesaid WP (C) No. 3854/2012, the Assam Secondary Education (Provincialisation) Service Rules, 2003 was in operation. Undisputedly, as per the provisions of the said rules, for the purpose of promotion to the post of Principal, the incumbents, both in the Subject Teacher Cadre and Graduate Cadre were to be considered and their seniority was also to be determined on the basis of the date of joining the respective cadre. If we go by the provisions of the said Rules, admittedly, the respondent No. 4 having been appointed in the graduate scale of pay w.e.f. 15.12.1984, as against the petitioner's appointment as Subject Teacher on 18.02.1985, he would rank senior to the petitioner. It was on that count, pursuant to the orders of this Court, the Director of Secondary Education, Assam has passed the impugned order dated 31.05.2013 holding the respondent No. 4 to be senior to the petitioner with eventual conferment of In-charge Principal-ship to the said respondent. 5. WP (C) No. 6795/2013 In this writ petition, which the petitioner has filed after the first writ petition, he has challenged the order dated 02.09.1986 and 08.09.1986, so far as the same relate to conferring of graduate scale of pay to the respondent No. 4 w.e.f. 15.12.1984. The petitioner has also challenged the Annexure-D order dated 31.05.2013, which is already under challenge in the first writ petition being WP (C) No. 3117/2013. 6. The petitioner has also challenged the Annexure-D order dated 31.05.2013, which is already under challenge in the first writ petition being WP (C) No. 3117/2013. 6. From the above narration of facts, what has emerged is that the fact that the petitioner was well aware that the respondent No. 4 was appointed in the graduate scale of pay w.e.f. 15.12.1984 but as projected in the first writ petition being WP (C) No. 3117/2013, irrespective of his joining as Subject teacher on 18.02.1985, he would rank senior to the respondent No. 4 he being in a higher cadre of Subject Teacher. As noted above, in the first writ petition, there is no whisper about any illegality in respect of the appointment of the respondent No. 4 in the graduate cadre w.e.f. 15.12.1984. The whole basis of the writ petition is the plea of the petitioner that he being in the cadre of Subject Teacher with B.Ed degree, would always rank senior to the respondent No. 4. This assertion has been made unmindful of the then prevailing Rules of 2003, in terms of which seniority of the incumbents in both the cadres i.e. Subject Teacher and Assistant Teacher (Graduate scale) are required to be determined on the basis of joining the service. 7. Mr. D.K. Sarmah, learned counsel for the petitioner has also placed reliance on Rule 12 of the aforesaid Rules of 2003, which was amended vide notification dated 10.07.2012, so as to contend that as per the said amendment, a candidate aspiring for appointment/promotion to the post of Principal will have to be Master Degree holder with BT/B.Ed. This argument of the learned counsel for the petitioner cannot be sustained, inasmuch as, this qualification was introduced by the amendment made effective from 10.07.2012 but on the other hand, the petitioner was conferred with the Principal Incharge-ship vide order dated 02.02.2012. 8. It is submitted that the aforesaid Rules of 2003 has been held to be ultra-vires the Constitution of India vide judgment dated 18.12.2012 in Mohendra Mudoi v. State of Assam & Ors. reported in 2012 (3) GLT 141. Thus, the Rules of 2003 are no-longer in existence. 9. 8. It is submitted that the aforesaid Rules of 2003 has been held to be ultra-vires the Constitution of India vide judgment dated 18.12.2012 in Mohendra Mudoi v. State of Assam & Ors. reported in 2012 (3) GLT 141. Thus, the Rules of 2003 are no-longer in existence. 9. It has been brought to my notice that the DB of this Court vide its judgment and order dated 8.10.2012 passed in WP (C) No. 3814/2012 (All Assam Higher Secondary Teachers and Employees Association v. State of Assam & Ors.), referring to the aforesaid amended provisions of 2012 requiring BT/B.Ed. degree, has held thus:-- 8. On due consideration, we find merit in the grievance of the petitioners. It is clear that the amendment of qualifications required for recruitment to the post of Principal in Clause 1(i) for the Post Graduate Teachers or Vice-Principals (appointed out of Post Graduate teachers), no such qualification was laid down at the time of entry into service nor at any point thereafter, they could obtain such degree. Thus, eligible candidates with 15 years service will be rendered ineligible which is arbitrary and discriminatory. Graduate Teachers were being allowed to acquire these qualifications during service which Post Graduate teachers were not and, therefore, Post Graduate teachers could not be treated at par with Graduate teachers in the matter of having BT/B.Ed. degree. 9. In view of above, the Rule may either require to be set aside or may have to be reconsidered by the rule making authority. 10. When the aforesaid direction was holding the field, the very set of rules of 2003 has been held to be ultra-vires the Constitution of India by the aforesaid judgment in Mohendra Mudoi (supra) 11. As submitted by the learned counsel for the parties, after the aforesaid judgment in Mohendra Mudoi (supra), the Assam Secondary Education (Provincialised) Service Rules, 1982, which was holding the field, prior to coming into force the 2003 Rules, gets derived and the provisions thereof will now be applicable. 12. As per the provisions of the aforesaid Rules of 1982, the incumbents both in the cadre of Subject Teacher and Graduate Cadre are entitled to get consideration for promotion to the post of Principal. While the Subject Teacher will have to have 15 years of continuous teaching experience, the graduate teachers will have to have 17 years of continuous teaching experience. While the Subject Teacher will have to have 15 years of continuous teaching experience, the graduate teachers will have to have 17 years of continuous teaching experience. There is provision for giving preference to a candidate having a post-graduate degree in teaching/a degree in post graduate teaching with BT/B.Ed. 13. In the present proceeding, we are concerned with Principal Incharge-ship and not of any regular appointment. The question for determination is as to whether the respondent No. 4 should get the Principal Incharge-ship by virtue of being senior to the petitioner. While it is the case of the petitioner that he being in a higher cadre of Subject Teacher with B.Ed. degree, he will get preference, both in the matter of seniority and promotion to the post of Principal, it is the case of the respondent No. 4 that he being senior to the petitioner irrespective of the fact that the petitioner belongs to the cadre of Subject Teacher, he is entitled to get the charge of Principal till such time, regular selection is held for regular appointment/promotion to the post of Principal. 14. As has been held by the Apex Court in Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu & Ors. reported in : (2003) 5 SCC 341 the question of preference is applicable in the matter of selection, if two incumbents are found to have equal merit. In that case, any one of them can be preferred, if there is any preferential clause in respect of educational qualification or experience, etc. In the instant case, we are not concerned with any regular selection but are concerned with the temporary appointment. In the normal course, the senior most teacher of the school should get the charge of the Principal in absence of any regular incumbent. While the respondent No. 4 was appointed to the graduate cadre w.e.f. 15.12.1984, the petitioner was appointed as Subject Teacher on 18.02.1985. Thus, if the respondent No. 4 is senior to the petitioner, in the normal circumstances, he should get the charge of the Principal, he being undoubtedly senior to the petitioner in terms of the relevant rules. He cannot be denied the Principal Incharge-ship on the ground that the petitioner belongs to another cadre of Subject Teacher and that he possesses the qualification of B. Ed. 15. He cannot be denied the Principal Incharge-ship on the ground that the petitioner belongs to another cadre of Subject Teacher and that he possesses the qualification of B. Ed. 15. During the course of hearing of the writ petition, when the learned counsel for the petitioner was pointed out that in the first writ petition being WP (C) No. 3117/2013, there is no dispute regarding the fact that the respondent No. 4 was appointed to the graduate cadre w.e.f. 15.12.1984, it was submitted that in the 2nd writ petition, there is challenge to the order dated 08.09.1986, by which the respondent No. 4 was given the graduate scale of pay with retrospective effect and to be precise w.e.f. 15.12.1984. Thus, when the petitioner found that his plea as has been raised in the writ petition may not be tenable, he filed the second writ petition, challenging the order dated 08.09.1986, which was passed 27 years back. Under no circumstances and by no stretch of imagination, such a belated challenge can be said to be sustainable in law. 16. When the petitioner raised the aforesaid plea of retrospective conferment of graduate scale of pay by order dated 08.09.1986 illegally, this Court by order dated 15.11.2013 required the petitioner to produce his appointment to the cadre of Subject Teacher and also the particulars relating to advertisement and selection which had preceded such appointment. Today, Mr. D.K. Sarmah, learned counsel for the petitioner has produced the documents relating to appointment of the petitioner. The documents are dated 15.02.1985; 10.10.1990 and 04.08.2004. By the first order dated 15.02.1985, the petitioner was appointed as Subject Teacher purely on temporary basis and subject to selection by the State Selection Board. Thus, the petitioner was appointed w.e.f. 15.02.1985 without any selection. The second document is the order dated 10.10.1990, by which the services of the petitioner was regularised pursuant to the selection conducted by the State selection Board. It is in this context, while it was pointed out that if the kind of plea that has been raised against the respondent No. 4's appointment to the graduate cadre is entertained, then such plea will also be applicable to the case of the petitioner, his service having been regularised only w.e.f. 10.10.1990. The 3rd document is the order dated 04.08.2004, by which the services of the petitioner along with 7 others had been confirmed. 17. The 3rd document is the order dated 04.08.2004, by which the services of the petitioner along with 7 others had been confirmed. 17. Above aspect of the matter need not detain us, inasmuch as, when the admitted fact is that the authorities and for that matter all the parties involved in this proceeding have ail-along recognized the fact that the respondent No. 4 is in the graduate cadre w.e.f. 15.12.1984 and the petitioner in the cadre of Subject Teacher w.e.f. 15.02.1985. 18. Mr. J. Abedin, learned Standing Counsel, Education, defending the impugned order submits that when the present proceeding is only concerned with the issue as to who should hold the charge of Principal of the School, the seniority of the incumbent will be the determining factor as has been done in all such cases. It being the admitted position that the respondent No. 4 is senior to the petitioner in reference to the date of getting the graduate scale of pay vis-à-vis the appointment of the petitioner in the cadre of Subject Teacher, in my considered opinion, he should be allowed to hold the charge of the Principal. I do not find any infirmity in the impugned order. In view of the above, both the writ petitions are dismissed. Interim order, if any, stands vacated.