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2014 DIGILAW 128 (GAU)

BALAY KR BORAH v. STATE OF ASSAM

2014-01-31

K.SREEDHAR RAO, P.K.SAIKIA

body2014
ORDER (P.K.Saikia, J) 1. This proceeding has been initiated seeking following reliefs:- “In the premises aforesaid it is respectfully prayed that your Lordships would graciously be pleased to admit this application. Call for the records. Issue a Rule calling upon the respondents to show cause as to why the Rule 3 of The Assam School Service (Government Secondary School) Rules, 2009 should not be declared as illegal and void ab initio and/or a writ in the nature of Certiorari should not be issued for setting aside and quashing “the Rule-3 of the Assam School Service (Government Secondary School) Rules, 2009”and the impugned part of the order dated 7.11.2000 making the post personal and-or a writ in the nature of Mandamus should not be issued to cancel rescind &forbear from giving effect to the impugned Rule-3 of The Assam School Service (Government Secondary School) Rules, 2009 with a further direction to insert the service of the petitioner in the cadre and class as entitled to under the law and to fix the inter-se seniority of the petitioner and to issue appropriate order with regard to confirmation of the service of petitioner and/or any other writ or direction should not be issued directing the respondents to consider the case of the petitioner for promotion to the post of Principal in Government Higher Secondary School and or perusal of the materials on record and after hearing the parties this Hon’ble Court may be pleased to make the Rule absolute and/or be pleased to pass any such further or other order/orders as to your Lordships may deem fit and proper in the facts and circumstances of the case so as to give full and complete relief to the petitioner as prayed for.” 2. Heard Mr. B. Goswami, learned counsels for the petitioner. Also heard Mr. P.N. Goswami, learned counsel appearing for the respondents. 3. The brief facts necessary for disposal of the present proceeding are that the petitioner after completing his Master’s in Mathematics from the Gauhati University also completed 1(one) year Diploma Course in Computer Applications from the Gauhati University as a regular student. The Director of Secondary Education, Assam, vide advertisement at Annexure-II to the writ petition invited applications from the qualified candidates for filing up various posted including the post of Teacher in Computer Data Entry & Operation in the pay scale of Rs. 875/-1850/-. 4. The Director of Secondary Education, Assam, vide advertisement at Annexure-II to the writ petition invited applications from the qualified candidates for filing up various posted including the post of Teacher in Computer Data Entry & Operation in the pay scale of Rs. 875/-1850/-. 4. In due course, he appeared before the Interview Board and was selected and thereafter, vide order dated 10.11.1990, he was appointed temporarily as Computer Data Entry & Operation against one of the 60 posts created vide letter dated 12.02.1990 (under Vocational stream) at Cotton Collegiate Higher Secondary School under Rule 3(I) of the Assam Public Service (Ad-hoc) Appointment Rules 1986 in the Scale Pay of Rs. 875/- 1850/- pm, plus other allowances as admissible from time to time for a period not exceeding one year, with effect from the date of joining or till regular appointment is made through APSC, whichever is earlier. 5. In the meantime, nomenclature of subject teacher against which the petitioner was appointed had been changed from Computer Data Entry & Operation to Commercial Computer Applications. Thereafter, vide advertisement dated 21.10.1993, the Assam Public Service Commission notified 5 posts of Commercial Computer Applications in the pay scale of Rs. 1835- 4325/- pm plus other allowances seeking applications from the qualified candidates. Since the petitioner was discharging his duty on ad-hoc basis, he submitted his applications and was called for the interview by Assam Public Service Commission (APSC). 6. Since he was found suitable by the Commission, he was selected for appointment on regular basis. In that way, service of the petitioner as Commercial Computer Applications stood regularized w.e.f., 20.4.1995 vide order dated 11.08.1995, issued by the Director of Secondary Education, Assam. It was stated in the appointment letter that the inter-se-seniority of the teacher will be finalized later. 7. Although, the Government had normalized 62 post of teachers of vocational education including one held by the petitioner, the Education Department vide its order dated 06.05.1999 intimated the Director of Secondary Education of Assam that Finance Department advised not to give effect to the order of normalization of those teachers communicated earlier vide communication dated 28.05.1998. In the order dated 06.05.1999, the Director was further directed not to take steps for normalization of any post created under Centrally Sponsored Scheme. 8. In the order dated 06.05.1999, the Director was further directed not to take steps for normalization of any post created under Centrally Sponsored Scheme. 8. In paragraph-13 of the writ petition, it has been stated that for all practical purpose, the services of the petitioner was treated as subject teacher in vocational stream and as such, the petitioner and others like him are entitled to be promoted to the post of Vice-Principal and Principal as the case may be. Meanwhile, the Government has intimated for the normalization of services of 274 post of subject teachers under vocational stream from C.S.S. to Non-plan vide order dated 19.10.2000, which was subsequently communicated to all the Inspector of School in Assam vide letter dated 07.11.2000. 9. It is also the contention of the petitioner that the pay of the petitioner as subject teacher is always above the Vice-Principal and as such, as far as pay structure is concerned, the service of the petitioner is treated as Grade-I and Group-A. In spite of above, the services of the petitioner has not been confirmed for the reasons best known to the competent authority, though he made several representations in that regard and although he had completed in the meantime 19 years of continuous service. 10. Meanwhile, the Assam School Services (Government Secondary Schools) Rules, 2009 (in short, the Rules of 2009) was framed by the Government of Assam. In the said Rules make no mention as to the post of Subject Teachers of the vocational stream. The non-mentioning of the post of the petitioner in the aforesaid Rules has closed forever the promotional avenue for the petitioner and the persons situated similarly with him. Therefore, the post of the petitioner ought to have been in the Rules of 2009 along with the post which are equivalent with the post of the petitioner in all respects. 11. According to the petitioner, the post held by him is similar in all respect with the posts specified in Rule 3(iii) of the Rules, 2009. Rule 3(iii) of the Rules, 2009 includes the following posts :- (a) Post Graduate Teacher, (b) Elective Subject Teacher and Higher Secondary and MP School, (c) Head Master/ Head Mistress of the High School. 12. Therefore, the post of the petitioner ought to have been clubbed with those posts in Rule 3(iii) of the Rules of 2009,-----argues petitioner. Rule 3(iii) of the Rules, 2009 includes the following posts :- (a) Post Graduate Teacher, (b) Elective Subject Teacher and Higher Secondary and MP School, (c) Head Master/ Head Mistress of the High School. 12. Therefore, the post of the petitioner ought to have been clubbed with those posts in Rule 3(iii) of the Rules of 2009,-----argues petitioner. Since the State respondents have been doing nothing in spite of his repeated requests, the petitioner has come up with the aforesaid prayers. 13. Notice of the proceeding was served on the respondents. The respondents having filed counter-affidavits admits that the writ petitioner comes under the cadre of Assam Schools Services (Junior Class-I) as mentioned in Rule-3(iii) of Assam School Services (Government Rules), 2009. For ready reference the relevant part is reproduced below:- “That the deponent states that the writ petitioner comes under the cadre of Assam School Service (Junior) Class-I mentioned at Rule 3(iii) of Assam School Service (Government Secondary School) Rules, 2009”. 14. It may be stated that during the course of argument, the Government Counsel has produced the letter dated 28.06.2013 from the Deputy Secretary, Government of Assam which was addressed to the petitioner. By the letter dated 28.06.2013, another letter, that is the letter, dated 25.04.2013 was forwarded to the petitioner. The letter dated 25.04.2013 is reproduced below:- GOVERNMENT OF ASSAM OFFICE OF THE DIRECTOR OF SECONDARY EDUCATION, ASSAM KAHILIPARA, GUWAHATI-19 NO. AAP/Misc/3/2012/31 Dated Kahilipara, the 23rd April, 2013 From: Sri. B.L. Sarma, ACS Director of Secondary Education, Assam Kahilipara, Guwahati-19. To, The Commissioner & Secretary to the Govt. of Assam, Education (S) Department, Dispur, Guwahati-6 Sub:- Regarding inclusion of name In Gradation list. Ref:- Govt. letter No. ASE-72/2013/13 dtd. 26.02.2013. Sir, In inviting a reference to the Govt. letter on the subject cited above, I have the honour to state that as per Assam School Service (Govt. Secondary School) Rules,2009, the name of Sri Balay Kr. Borah, Subject Teacher (Vocational) in Cotton Collegiate Govt. HS School, Guwahati and any other Subject Teacher of Vocational stream working in different Govt. HS Schools of Assam are not included in the Graduation list of Subject Teacher as they are not included in the Cadre of Assam School Service (Jr) Class I in Rule 3 of the Assam School Service (Govt. Secondary Schools )Rules, 2009. Yours faithfully, Director, Secondary Education, Assam Kahilipara, Guwahati-19” 15. HS Schools of Assam are not included in the Graduation list of Subject Teacher as they are not included in the Cadre of Assam School Service (Jr) Class I in Rule 3 of the Assam School Service (Govt. Secondary Schools )Rules, 2009. Yours faithfully, Director, Secondary Education, Assam Kahilipara, Guwahati-19” 15. When one reads the letter dated 25.04.2013 together with the pleadings of the parties, more particularly, the pleading of the respondents, there cannot be any doubt that the post of petitioner ought to have been included in the cadre of Assam School Service (Jr.) Class-I in Rule 3 of the Rules, 2009 and not doing so, they acted in an arbitrary way infringing the right of the petitioner and persons situated similarly with him guaranteed under the Constitution of India. 16. This brings us to another question. Such a question is where is the post of the petitioner to be fitted? We have already found that the post of the petitioner is identical in all respects with the posts, specified in Rule 3(iii) of Assam Schools Service (Government Secondary School) Rules, Government Rules, 2009. In other words, the post of petitioner ought to have been incorporated in Rule 3(iii) of Rules, 2009. 17. That being so, in our considered opinion, the prayer of the petitioner needs to be accepted which we accordingly do. 18. Consequently, we direct the respondents to amend Rule 3(iii) of Rules, 2009, so as to include the post of Commercial Computer Application alongside the posts already specified therein. This must be done within a period of 6 months from the date of receipt of a copy of this judgment. 19. With the above observations and directions, this proceeding is disposed of without any cost.