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2015 DIGILAW 1452 (GAU)

BALEN KUMAR GOSWAMI v. STATE OF ASSAM

2015-11-21

B.K.SHARMA, PARAN KUMAR PHUKAN

body2015
JUDGMENT : B.K. Sharma, J. Heard Mr. A. Sharif, learned counsel for the appellant. Also heard Mr. S. Saikia, learned Standing Counsel, Education (Secondary) Department and Mr. R. Ali, learned counsel, representing the respondent No. 4. 2. The matter pertains to holding of charge of Principal in a Higher Secondary School. As per the judgment under appeal, both the incumbents, i.e., the appellant and the respondent No. 4, who are Graduate Teachers in the school, are not qualified to hold the post of Principal. Be it stated here that while the appellant is a B.A. (Honours) with B. Ed., the respondent No. 4 is only B.Sc. While the appellant was appointed as Intermediate Teacher in 1981 and thereafter, as Graduate Teacher in 1992, the respondent No. 4 was first appointed as Demonstrator in 1978. However, pursuant to the judgment dated 06.08.2011, passed in WP(C) 4538/2009, he is also treated to be in the graduate cadre. While, according to the appellant, the respondent No. 4 is entitled to count his seniority in the graduate cadre from the date of his encadrement in the graduate cadre pursuant to the said judgment, but, according to the respondent No. 4, in terms of the said judgment, he is entitled to count his seniority from the date of appointment as Demonstrator. 3. Although, as per the judgment under appeal, both appellant and the respondent No. 4 are not qualified to hold the post of Principal, but the Official Respondent has allowed the respondent No. 4 to hold the charge of Principal. It appears that there was ongoing litigation in respect of the issue as to who should get the charge of Principal. Earlier, the appellant was allowed to hold the charge of Principal, challenging which writ petition, being WP(C) 365/2013, was filed by the respondent No. 4. In the writ proceeding, an interim order was operating and eventually the writ petition was disposed of by the judgment under appeal along with another writ petition. It appears that in the said litigation, an interim order was passed in Misc. Case No. 3573/2013, providing that the senior most qualified Assistant Teacher shall hold the charge of Principal. The expression "qualified" will have to be understood in terms of the judgment under appeal. In the said judgment, it has been held that both, i.e., appellant and the respondent No.4 are not qualified. Case No. 3573/2013, providing that the senior most qualified Assistant Teacher shall hold the charge of Principal. The expression "qualified" will have to be understood in terms of the judgment under appeal. In the said judgment, it has been held that both, i.e., appellant and the respondent No.4 are not qualified. If that be so, none of them can also hold the charge of Principal. 4. A question has also been raised as to who is senior between the two. As noted above, while, according to the appellant, he is senior to the respondent No. 4, but, according to the respondent No. 4, he is senior to the appellant as his encadrement in the graduate cadre is required to be counted from the date of his appointment as Demonstrator. The present position is that the Official Respondent has allowed the respondent No. 4 to hold the charge of Principal. 5. We have given our anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials on record. There is no dispute that as per Rule 12 of the Assam Secondary Education (Provincialization of Services) Rules, 2003 (in short, the Service Rules), none of the incumbents, i.e., appellant and the respondent No. 4, are qualified to be appointed as regular Principal. However, as contended by Mr. Sharif, learned counsel for the appellant, the appellant having been allowed to appear in the selection for regular appointment as Principal, he should be deemed to have qualified to hold the charge of Principal. In this context, question may also arise as to when the vacancy of Principal had arisen, inasmuch as if the vacancy had arisen prior to the amendments brought to the Service Rules on 10.07.2012, in that case, a situation may arise in which the case of the incumbents may be required to be considered in terms of the provision of the Pre-Amendment Rules. In absence of any materials before us, we are not in a position to decide the same. 6. Considering the matter in its entirety, this appeal is disposed of directing the Government in the Education (Secondary) Department to resolve the issue relating to seniority between the appellant and the respondent No. 4 and thereafter to take consequential measures strictly adhering to the Rules and in terms of the observations made above. 6. Considering the matter in its entirety, this appeal is disposed of directing the Government in the Education (Secondary) Department to resolve the issue relating to seniority between the appellant and the respondent No. 4 and thereafter to take consequential measures strictly adhering to the Rules and in terms of the observations made above. Till the issue is resolved in terms of this order, the Inspector of Schools, Nalbari District Circle, will hold the charge of Principal of the school. 7. Let the required exercise be carried out by a speaking order as expeditiously as possible preferably within 60 (sixty) days. If needed, personnel hearing may be afforded to both the parties.