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2014 DIGILAW 508 (GAU)

Dilip Chandra Kalita v. State of Assam

2014-05-09

A.K.GOSWAMI

body2014
JUDGMENT AND ORDER (Oral) Heard Mr. IH Saikia, learned counsel for the petitioner. Also heard Ms. P Chakraborty, learned Standing Counsel, Education Department appearing for respondent Nos. 1, 2 and 3 as well as Mr. UK Nair, learned counsel appearing for respondent No. 4. 2. Challenge in the writ petition is to an order dated 01.07.2013 issued by the Director of Secondary Education, Assam, allowing the respondent No. 4, treating him to be the senior most Assistant Teacher of Karia Higher Secondary School, Karia, to hold the charge of Principal i/c of the said Higher Secondary School from 31.05.2013. 3. The contention advanced by Mr. Saikia is that the respondent No. 4 does not meet the criteria of 15 years of service in a Higher Secondary School to be eligible in terms of Rule 12 (d) of the Assam Secondary Education (Provincialisation of Service) Rules, 2003, for short, Rules of 2003, for appointment as Principal. 4. It is submitted by him that a Division Bench of this Court, by judgment and order dated 18.11.2009 in WA No. 281/2009 (Sushen Chandra Das –Vrs- Prafulla Kumar Das and Ors), had held that service rendered in a High School in graduate scale/cadre is not to be counted for computation of the teaching experience required under Rule 12(d) of the Rules of 2003 and when the service rendered by the respondent No. 4 in the High School is excluded, he will clearly not be eligible to be considered for the post of Principal. 5. Mr. Nair, learned counsel appearing for respondent No. 4, does not dispute the fact that if the period of service rendered by the respondent No. 4 in the High School is excluded, he does not qualify to hold the post of Principal, having not served for 15 years in a High Secondary School. 6. Ms. P Chakraborty, learned Standing Counsel, Education Department contends that in view of the aforesaid judgment of the Division Bench of this Court, the respondent No. 4 being not eligible, a fresh exercise has to be carried out by the Director, Secondary Education, who is the appointing authority, to appoint the senior most teacher as the in-charge Principal. 7. The Division Bench in the case of Sushen Chandra (Supra), in paragraphs 13 and 14 had stated as follows: “13. 7. The Division Bench in the case of Sushen Chandra (Supra), in paragraphs 13 and 14 had stated as follows: “13. Reverting to the facts of the present case, the appellant joined the Mayong Higher Secondary School on 15.12.87 whereas the respondent No. 1 joined the said school in the Post Graduate cadre on 28.10.86. The appellant had earlier worked as an Assistant Teacher in the graduate scale in the Buraburi High School the effect of which is to be given from the date of provincialisation of the said High School i.e. 1.2.86. However, the period of service rendered by the appellant in the Buraburi High School in the graduate scale/cadre is not eligible to be counted for computation of the teaching experience required under Rule 12(d) of the 2003 Rules and, therefore, shall stand excluded. The further question that now has to be addressed in this regard would be the effect of the order dated 8.3.2001 passed by the Director of Secondary Education by which the service rendered by the appellant in the Buraburi High School had been made continuous. 14. There can be no manner of doubt that an administrative order cannot come into direct conflict or be contrary to the expressed provisions of the statutory Rules. In such an event the order that may be in conflict with the statutory provision will have to give way to the expressed provisions of the statute. The learned Single Judge in the impugned order has held that the order dated 8.3.2001 granting continuous service to the appellant could be valid for the purpose of conferment of benefits like pension, continuity in service etc. but not for the purpose of determination of seniority. The principle contained in the aforesaid decision of the learned Single Judge cannot be disagreed with though the said principle may not wholly apply to the facts of the present case. However, what is clear is that the order dated 8.3.2001 cannot be considered to have conferred on the appellant a qualification which he does not have so as to meet the eligibility criteria for appointment to in the post of Principal. However, what is clear is that the order dated 8.3.2001 cannot be considered to have conferred on the appellant a qualification which he does not have so as to meet the eligibility criteria for appointment to in the post of Principal. If the statutory Rules require a certain number of years of teaching experience as Graduate Teacher in a Higher Secondary School for appointment to the post of Principal, the aforesaid requirement cannot be whittled away by an administrative order treating the service rendered in the Graduate cadre in a High School as equivalent to the service rendered in a Higher Secondary School. Such a legal fiction cannot be introduced by means of an administrative action and, that too, in direct conflict with the provisions of the statutory enactment.” 8. In view of the aforesaid judgment and order of this Court and in view of submission of the learned counsel for the parties, this Court has to invariably hold that the order dated 01.07.2013 passed by the Director of Secondary Education is not sustainable in law. Accordingly, the same is set aside and quashed. Consequently, the Director of Secondary Education, Assam will now take steps for appointment of an in-charge Principal in accordance with law within a period of 2 (two) weeks from today. 9. Till the exercise is carried out by the Director of Secondary Education, Assam, the Inspector of Schools, Nalbari District Circle will discharge the duties and responsibilities of the Principal of the School. 10. The learned counsel for the parties are at liberty to produce the certified copy of this order before the Director of Secondary Education, Assam for his taking necessary steps in terms of this order.