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2014 DIGILAW 340 (GAU)

AJIT BORUAH v. STATE OF ASSAM

2014-03-20

UJJAL BHUYAN

body2014
JUDGMENT UJJAL BHUYAN, J. This case was heard on 13.03.2014 and today is fixed for delivery of judgment. By way of this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 10.09.2012, issued by the Director of Secondary Education, Assam (respondent No. 2) and further seeks a direction to the respondents to appoint the petitioner as the in-charge Principal of the Chapanalla Higher Secondary School, Nagaon. Case of the petitioner is that he was appointed as Subject Teacher of Economics in the Chapanalla Higher Secondary School, Nagaon, vide order dated 20.04.1987, issued by the respondent No.2. Till date, petitioner is serving as Subject Teacher in the said School. Be it stated that the petitioner is a master degree holder qualified to be appointed as Subject Teacher. Respondent No. 4, who possesses the degrees of MA and B.Ed. was appointed as Assistant Teacher in the said School on 19.09.1988 on intermediate scale of pay. She received the graduate scale of pay on and from 30.12.1993. As per seniority list of the teachers of the school prepared by the earlier Principal in-charge of the School, petitioner is the senior most teacher of the School, much senior to respondent No. 4, who is placed at Sl. No. 5. The earlier Principal in-charge, Sri Harish Phukan, retired from services on attaining the age of superannuation on 31.08.2012. Instead of appointing the petitioner as the in-charge Principal of the School till regular appointment of Principal in view of his admitted seniority, respondent No. 2 issued the impugned order dated 10.09.2012 allowing respondent No. 4 to be the Principal in-charge of the School with financial powers. Aggrieved, petitioner has filed the present writ petition. Contention of the petitioner is that seniority of the petitioner over respondent No. 4 could not have been ignored by respondent No. 2 while appointing in-charge Principal of the School. Respondent No. 2, in his affidavit, while admitting seniority of the petitioner over respondent No. 4, has, however, taken the stand that allowing respondent No. 4 to hold charge of Principal in addition to her normal duties, was a temporary arrangement till such time a regular Principal is appointed. Once regular selection is made, post of Principal will be filled up on regular basis. Once regular selection is made, post of Principal will be filled up on regular basis. At the time of issuance of the impugned order, Assam Secondary Education (Provincialisation of Services) Rules, 2003 (2003 Rules) were holding the field, which required the qualification of B.Ed. degree for the post of Principal. The said 2003 Rules governed selection and appointment to the post of Principal of Higher Secondary Schools. The 2003 Rules were set aside by this Court declaring the same as unconstitutional in the case of MAHENDRA NATH MUDOI & ORS. VS. STATE OF ASSAM & ORS., reported in 2013 (3) GLT 141 (DB), against which, State has filed review petition. Similar stand is taken by respondent No. 4 in her affidavit. She has, however, stated that though the 2003 Rules have been declared unconstitutional, the effect of the judgment would be prospective and all appointments made on the basis of the 2003 Rules before the declaration by this Court that the 2003 Rules were unconstitutional should not be disturbed. Under the 2003 Rules, B.Ed. degree is mandatory for appointment as Principal of Higher Secondary School. Heard Mr. M Sarma, learned counsel for the petitioner, Ms. P Bhattacharrya, learned Standing Counsel, Education Department, Assam and Mr. M Kalita, learned counsel for respondent No. 4. Mr. Sarma, learned counsel for the petitioner submits that the 2003 Rules were not only held as unconstitutional in MAHENDRA NATH MUDOI (Supra), in an earlier order of a Division Bench of this Court dated 08.10.2012, passed in WP(C) No.3814/2012 (All Assam Higher Secondary Teachers & Employees Association Vs. The State of Assam & Ors.), it was clearly held that requirement of BT/B.Ed. degree for Post Graduate Teacher for appointment as Principal was arbitrary and discriminatory. While directing the rule making authority to either set aside or reconsider the 2003 Rules, the Division Bench ordered that no further regular promotion should be made to the post of Principal in Higher Secondary Schools. Any step taken earlier on the basis of the said rules were directed to be reviewed. He, therefore, submits that in view of the order of the Division Bench, respondent No. 2 is required to reconsider and review the impugned order dated 10.09.2012. While Ms. Any step taken earlier on the basis of the said rules were directed to be reviewed. He, therefore, submits that in view of the order of the Division Bench, respondent No. 2 is required to reconsider and review the impugned order dated 10.09.2012. While Ms. P Bhattacharrya, learned Standing Counsel, Education Department, Assam fairly submitted that the matter may require reconsideration by the authority in the light of the above Division Bench judgment, learned counsel for respondent No. 4 argued that no such reconsideration is called for. He has placed reliance on a Single Bench judgment of this Court dated 03.02.2014, passed in WP(C) No. 5191/2012 (Aswani Kr. Sarma Vs. State of Assam & Ors.), wherein similar order passed by the Govt. was not interfered with. It was held that since BT/B.Ed. degree is essential for becoming Principal of Higher Secondary School, non-possession of such degree would disentitle a candidate from holding the post of Principal, even if he is the senior most. Order passed by the respondent No. 2 was not interfered with. I have heard learned counsel for the parties. Rule 12 of the 2003 Rules dealt with recruitment of Principal in Higher Secondary/Higher Secondary & Multipurpose School and qualification thereof. Amongst other requirements, it was provided that a candidate must have at least 15 years of teaching experience as Post Graduate Teacher in any Higher Secondary/Higher Secondary & Multipurpose School. 2003 Rules were amended by the Assam Secondary Education (Provincialized) Service (Amendment) Rules, 2012. An additional requirement was inserted by the said amendment to the effect that the candidate must be MA/M.Sc./M.Com. with BT/Bd.Ed. degree. The amendment Rules of 2012 were put to challenge in All Assam Higher Secondary Teachers & Employees Association (Supra). The Division Bench held as under:- “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-Principles (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. 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. Accordingly, we direct that the issue may be reconsidered and finalized within two months from the date of receipt of a copy of this order and, pending such finalization, no further regular promotion be made to the posts of Principals in Higher Secondary/Higher Secondary & Multipurpose Schools. Any step taken in pursuance of the above amendments may be reviewed in the light of the above observation.” In view of the order of the Division Bench, directing review of any decision taken in terms of the 2012 Amendment Rules, I am of the view that the impugned order should be re-examined and reviewed by the respondent No. 2 in the light of the decision of the Division Bench as noticed above. Accordingly, it is hereby directed that respondent No. 2 shall re-examine the impugned order dated 10.09.2012 and pass a fresh order regarding appointment of Principal in-charge of Chapanalla Higher Secondary School in the district of Nagaon by considering the case of the petitioner in the light of the Division Bench decision referred to above. Such decision shall be taken within a period of sixty (60) days from the date of receipt of a certified copy of this order. Till such decision is taken, the present arrangement may continue. Needless to say, impugned order dated 10.09.2012 would be subject to the fresh decision that may be taken by the respondent No. 2 as indicated above. Writ petition is accordingly allowed to the extent indicated above. No costs.