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2014 DIGILAW 1038 (GAU)

LALIT KUMAR v. STATE OF ASSAM

2014-12-04

UJJAL BHUYAN

body2014
Judgment WP(C) No.4933/2012 and WP(C) No.4382/2012 were heard yesterday (03.12.2014) along with two misc. cases filed in WP(C) No.4933/2012 and today is fixed for delivery of order. Both the cases were heard together since the issues raised therein are inter-related. Heard Ms. B Bhuyan, learned counsel for the petitioner in WP(C) No.4933/2012, Mr. M Biswas, learned counsel for the petitioner in WP(C) No.4382/2012 and Mr. UK Goswami, learned Standing Counsel, Education (Secondary) Department, Govt. of Assam. Also heard Mr. KK Mahanta, learned Senior Counsel assisted by Mr. K Sinha, learned counsel for respondent No. 5, Smti. Bina Devi. Issue involved relates to holding of charge of office of Principal of Rastra Bhasha Higher Secondary School, Lanka (School hereafter) in the district of Nagaon. In WP(C) No. 4382/2012, petitioner Shri Lalit Kumar has prayed for a direction to the respondents to appoint him as Principal of the School. He is a graduate teacher serving for more than 17 years in the School. He entered service in the School on 12.09.1983. Considering his seniority in the School, he contends that he should be made either Principal of the School, or till regular appointment is made, the in-charge Principal of the School. This Court by order dated 17.09.2012, while admitting the writ petition, had passed an interim order, directing that no regular appointment to the post of Principal in the School should be made. In WP(C) No.4933/2012, petitioner, Smti. Charanjeet Kaur, seeks quashing of order dated 24.02.2012, issued by the Inspector of Schools, Nagaon District Circle as well as the order dated 17.08.2012, issued by the Director of Secondary Education, Assam. She also seeks a direction to the respondents to appoint her as the in-charge Principal of the School. By the order dated 24.02.2012, the Inspector of Schools allowed respondent No. 5 to discharge academic functions of the Principal of the School till receipt of order from the Director of Secondary Education. By the order dated 17.08.2012, issued by the Director of Secondary Education, respondent No. 5 has been allowed to exercise the financial powers of the office of the Principal of the School in addition to his own duties. This Court by order dated 16.10.2012, while admitting WP(C) No. 4933/2012, passed an interim order, directing the respondents to authorize the Inspector of Schools, Nagaon District Circle to discharge the duties of Drawing and Disbursing Officer of the School. This Court by order dated 16.10.2012, while admitting WP(C) No. 4933/2012, passed an interim order, directing the respondents to authorize the Inspector of Schools, Nagaon District Circle to discharge the duties of Drawing and Disbursing Officer of the School. Thus, the dispute relating to the issue as indicated above, involves three teachers, namely, Smti. Charanjeet Kaur (petitioner of WP(C) No. 4933/2013), Smti. Bina Devi (respondent No. 5) and Shri Lalit Kumar (petitioner of WP(C) No. 4382/2012). From the statement of seniority of the teachers of the School annexed to the writ petition in WP(C) No.4933/2012 as Annexure-E, it is seen that Shri Lalit Kumar had joined the School on 23.09.1983 followed by Smti. Charanjeet Kaur on 01.10.1986, and, therefore, respondent No. 5 on 01.11.1993. While Smti. Charanjeet Kaur and Smti. Bina Devi are Subject Teachers, Shri Lalit Kumar is an Assistant Teacher. Again, Smti. Charanjeet Kaur has MA degree, whereas Shri Lalit Kumar has B.Sc. degree. Only Smti. Bina Devi has MA, B.Ed. degrees. Director of Secondary Education (respondent No. 2) has filed affidavit. Stand taken in the affidavit is that all the teachers of the School have completed the qualifying service of 17 years in respect of Graduate Teachers and 15 years in respect of Post Graduate Teachers necessary for holding the post of Principal. In the meanwhile, the Assam Secondary Education (Provincialised) Service Rules, 2003 (2003 Rules) was amended by the Assam Secondary Education (Provincialised) Service (Amendment) Rules, 2012 (2012 Rules), whereby minimum qualification for appointment to the post of Principal in Higher Secondary Schools has been prescribed as Post Graduation with BT/B.Ed. degree. Only two teachers in the School possess the said qualification, namely, Smti. Bina Devi and Sri Hare Ram Ojha. Since Sri Hare Ram Ojha is junior to Smti. Bina Devi, the latter has been allowed to hold the charge of the office of Principal of the School vide order dated 17.08.2012. Be it stated that the post of Principal of the School fell vacant on 31.01.2012. In WP(C) No. 4933/2012, two misc. cases have been filed. MC No. 2220/2013 has been filed by the petitioner, Smti. Charanjeet Kaur and MC No. 2507/2013, has been filed by Shri Lalit Kumar for impleadment as a respondent. In MC No.2220/2013, petitioner, Smti. Charanjeet Kaur has made a statement in paragraph 17 that she has also obtained the B.Ed. In WP(C) No. 4933/2012, two misc. cases have been filed. MC No. 2220/2013 has been filed by the petitioner, Smti. Charanjeet Kaur and MC No. 2507/2013, has been filed by Shri Lalit Kumar for impleadment as a respondent. In MC No.2220/2013, petitioner, Smti. Charanjeet Kaur has made a statement in paragraph 17 that she has also obtained the B.Ed. degree in the meanwhile thus attaining the eligibility to be appointed as Principal. Ms. Bhuyan, learned counsel for the petitioner, Smti. Charanjeet Kaur submits that her client is senior to respondent No. 5, Smti. Bina Devi and, therefore, considering her seniority, she ought to have been allowed to hold the charge of Principal of the School when the post fell vacant. The 2003 Rules did not prescribe possession of B.Ed. or BT degree to be eligible for holding the office of Principal. The said Rules were amended in 2012 by bringing in additional qualifications of BT or B.Ed degree. The amendment was held to be ultra vires by a decision of this Court dated 18.12.2013 in WP(C) No.1526/2012 (Mahendra Nath Mudoi Vs. State of Assam & Ors.). Therefore, legally speaking, the authority could not have ignored the better claim of Smti. Charanjeet Kaur. She further submits that in any view of the matter, petitioner has now obtained the B.Ed. degree. Therefore, even under the amended 2012 Rules, she is eligible to hold the office of Principal. Mr. M Biswas, learned counsel for the petitioner, Shri Lalit Kumar submits that when the post of Principal fell vacant on 31.01.2012, the eligibility criteria prescribed was 17 years for Graduate Teachers and 15 years for Post Graduate Teachers. Being a Graduate Teacher of 17 years experience, he was eligible to be appointed as Principal. It was only later on i.e., w.e.f. 10.07.2012 that the 2003 Rules were amended by bringing in the additional qualifications of BT/B.Ed. degree. Since his client had the qualification when the vacancy arose, the authority could not have ignored his claim. Therefore, his case is required to be reconsidered. Mr. Goswami, learned Standing Counsel, Education (Secondary) Department submits that though under the 2003 Rules, the eligibility requirement was 17 years of service as Graduate Teacher or 15 years of service as Post Graduate (Subject) Teacher, the Rule underwent a change by the amendment made in the year 2012, by which additional qualification of BT/B.Ed. was prescribed. Mr. Goswami, learned Standing Counsel, Education (Secondary) Department submits that though under the 2003 Rules, the eligibility requirement was 17 years of service as Graduate Teacher or 15 years of service as Post Graduate (Subject) Teacher, the Rule underwent a change by the amendment made in the year 2012, by which additional qualification of BT/B.Ed. was prescribed. Between the three candidates, it is only the respondent No. 5, Smti. Bina Devi who fulfills the eligibility criteria and, therefore, the Inspector and the Director had rightly allowed her to discharge duties of the office of Principal as a temporary measure till filling up of the post on regular basis. Similar stand has taken by Mr. Mahanta, learned Senior Counsel appearing for respondent No. 5, Smti. Bina Devi. He submits that though in Mahendra Nath Mudoi (Supra), the 2012 amendments were held to be ultra vires, subsequently on a review petition filed by the State, the said decision has been recalled. The effect of review is that the 2003 Rules, as amended, continued to hold the field. Under the 2003 Rules, prior to the amendment which came into effect from 10.07.2012, minimum qualification required for appointment as Principal was that the candidate should have 15 years of teaching experience as a Post Graduate Teacher or at least 17 years of teaching experience as a Graduate Teacher. As noticed above, this Rule had undergone a change w.e.f. 10.07.2012. Now, to be eligible for appointment as Principal in Higher Secondary Schools, a candidate must be a Post Graduate (MA/M.Sc./M.Com.) with BT/B.Ed. degree from any recognized university. In addition, the candidate should have rendered 15 years of service as Post Graduate Teacher or Vice Principal in any provincialised Higher Secondary School or should have rendered 17 years of teaching experience as Graduate Teacher in any Higher Secondary School. While the contention advanced by Mr. Biswas that the eligibility criteria which was prescribed when the post fell vacant is required to be accepted, has some merit, the fact that respondent No.5 is continuing as in-charge Principal till date, would make acceptance of his submission an untenable proposition. Even if his contention is accepted, the clock cannot be put back to make him the in-charge Principal of the School from the date the post fell vacant i.e., 31.01.2012, because, admittedly, as on date, he does not fulfill the qualification to hold the post of Principal. Even if his contention is accepted, the clock cannot be put back to make him the in-charge Principal of the School from the date the post fell vacant i.e., 31.01.2012, because, admittedly, as on date, he does not fulfill the qualification to hold the post of Principal. He cannot now be made the in-charge Principal of the School w.e.f. 31.01.2012 when he had the eligibility only to be removed on 10.07.2012 when he became ineligible with the amendment of the Rules. That would be an absurdity. That leaves the case of petitioner and the respondent No.5. Though, appointment of respondent No. 5 as in-charge Principal of the School has been described as a purely temporary arrangement, the said temporary arrangement has nonetheless continued for more than two years and as it appears, there is every possibility of continuing with the arrangement for some more time to come. In a situation like this, such temporary arrangement acquires attributes of quasi permanency. When a temporary arrangement continues for such a long period, the administrative authority as part of good governance is required to review such temporary arrangement periodically because, in the interregnum, senior teachers who did not have the eligibility initially, may have attained the eligibility. At this stage, learned counsel for the respondent No. 5 questioned the B.Ed. degree of the petitioner, Smti. Charanjeet Kaur. Be that as it may, Court is of the view that these are issues which are best left to the scrutiny of the departmental authorities. Accordingly and having regard to the discussions made above, matter is remanded to the Director of Secondary Education, Assam to examine the rival claims for holding the office of Principal of the School till appointment is made on regular basis. Director of Secondary Education shall examine the rival claims and pass appropriate order(s) thereafter in accordance with law within a period of six (6) weeks from the date of receipt of a certified copy of this order. Order dated 17.08.2012 would be subject to the outcome of such consideration and the decision that may be taken by the Director of Secondary Education, Assam. Till the said decision is taken, interim direction passed on 16.10.2012 in WP(C) No. 4933/2013 authorizing the Inspector of Schools, Nagaon District Circle to discharge duties of Drawing and Disbursing Officer of the School would remain effective. Till the said decision is taken, interim direction passed on 16.10.2012 in WP(C) No. 4933/2013 authorizing the Inspector of Schools, Nagaon District Circle to discharge duties of Drawing and Disbursing Officer of the School would remain effective. However, the interim order dated 17.09.2012 passed in WP(C) No. 4382/2012 directing that no regular appointment to the post of Principal of the School should be made stands recalled. Both the writ petitions are disposed of accordingly. No costs.