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2015 DIGILAW 1479 (GAU)

Abhay Kumar Deka v. State of Assam & Ors.

2015-12-01

MANOJIT BHUYAN

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1. Heard Mr. D. Mahanta, learned counsel for the petitioner as well as Mr. B.K. Gogoi, learned counsel representing Respondent Nos. 1, 3 and 4. The Finance Department arrayed as Respondent No. 2 is not represented and so is the case in respect of Respondent No. 5 who, however, has filed affidavit-in-opposition. 2. Way back on 01.08.1995 the petitioner was appointed as a Subject Teacher in Geography at Rehabari H.S. School in the District of Barpeta, to which post he joined on 16.09.1995. Six months later, that is, on 13.03.1996 the School in question was provincialised and as many as ten posts along with the scale-of-pay against each were allotted to the School. Pertinent to mention that in the category of posts allotted to Rehabari H.S. School, the post of Geography was not mentioned. In any event, the case of the petitioner did not come within the zone of consideration for provincialisation of his service. 3. Notwithstanding the fact that the post of Geography at Rehabari H.S. School was not considered at the time when certain posts were allotted to Rehabari H.S. School, it is discernible from a subsequent Order dated 15.02.2006 issued under the hand of the Director of Secondary Education, Assam that a proposal had been made to the Commissioner and Secretary (S&E) to the Government of Assam, Education Department for sanction of fourteen posts of Subject Teachers. The said letter makes mention that a Screening Committee was constituted for screening the dropped cases and it found that incumbents to fourteen posts of Subject Teacher are genuine. Further, that the services of these fourteen teachers were necessary in the academic interest of the schools in question. In the said letter the name of the petitioner finds at Sl. No. 3. The decision of the Commissioner & Secretary to the Govt. of Assam, Education (S&E) Department was conveyed by the letter dated 21.02.2006 (Annexure-7 of the writ petition), addressed to the Director of Secondary Education, Assam, whereby instructions was made for adjustment of dropped teachers in provincialised Higher Secondary School. The names of the candidates were shown at Annexure-1 enclosed to the letter dated 21.02.2006. In the said list the petitioner’s name figured at Serial No. 8 for the subject of Geography with place of posting at Patacharkuchi Vidyapith Higher Secondary School, Barpeta. 4. The names of the candidates were shown at Annexure-1 enclosed to the letter dated 21.02.2006. In the said list the petitioner’s name figured at Serial No. 8 for the subject of Geography with place of posting at Patacharkuchi Vidyapith Higher Secondary School, Barpeta. 4. It is contended by the learned counsel for the petitioner that the aforesaid letters of 15.02.2006 and 21.02.2006 itself indicates that the petitioner is a “dropped teacher”. To drive home the rights accruing upon a dropped teacher, Mr. Mahanta refers to the case of the Jiban Chandra Deka, reported in 2008 (3) GLT 229 where clear guidelines were made vis-a-vis the status and prospects of dropped teachers. For better appreciation the directions rendered by this Court in the case of Jiban Chandra Deka (supra) is reproduced below: “(i) The cases of the petitioners in each of the cases will be considered in accordance with the norms, criteria and eligibility conditions prescribed by the Policy Document dated 13.1.2003 subject to the modification in Condition Nos. 1 and 2, as stated above. (ii) The Chief Secretary to the Government of Assam shall within 7 days from today, constitute a Committee to examine the cases of the petitioners in the present bunch of cases arid such other cases, as may be referred to the said Committee, from time to time, by this Court. As the said Committee will be executing and implementing the policy decision taken by the State, this Court considers it appropriate to leave it to the discretion of the Chief Secretary to the Government of Assam to decide on the composition of the Committee with the suggestion that the Committee may be a high powered Committee consisting of 3 members and the present Secretary to the Government of Assam, Education Department may act as the Member-Secretary. (iii) The Committee, upon due verification of the cases before it, shall within 6 months from the date of its constitution, prepare district wise list of “dropped teachers” eligible for regularisation in terms of the norms and criteria laid down as per direction No. 1 above. The eligible persons, on being indentified, shall be arranged in the district wise lists, in order of seniority. The eligible persons, on being indentified, shall be arranged in the district wise lists, in order of seniority. (iv) Suitable adjustments in the placements assigned in the district wise lists, as may be required, upon consideration of such other cases which may be referred to the Committee in the future shall be made by the Committee. (v) Appointment against available posts in each district shall be made on the basis of the lists prepared. (vi) All appointments made would be prospective but will carry the benefit of past services for the purpose of computation of pensionary benefits.” 5. At the outset it may be borne in mind that in the Jiban Chandra Deka’s case (supra), the case of dropped teachers of different L.P. Schools, M.E./M.V., High and Higher Secondary Schools of the State of Assam had been considered. 6. Two primary contentions have been raised by the petitioner while relying upon the judgment in Jiban Chandra Deka (supra). The District wise list of dropped teachers in respect of Barpeta District had been prepared by the Committee and the fact that the petitioner was also found eligible for regularisation is abundantly disclosed in the aforesaid letters dated 15.02.2006 and 21.2.2006 as indicated above. Secondly, although the Condition No. 1 of the Policy Document dated 13.01.2003 of the Government of Assam stipulates that a teacher must have had atleast two years of continuous service immediately preceding the date of taking over of the concerned schools by the Government, the same would not stand in the way of the petitioner for having put in only about six months of service preceding the day of provincialisation of the School. To this end Mr. Mahanta refers to the judgment in the case of Jiban Chandra Deka (supra) where the Condition Nos. 1 and 2 of the Policy Document dated 13.01.2003 had also fallen for consideration and at paragraph 5(i) this Court had directed that the criteria and eligibility conditions prescribed by the Policy Document dated 13.01.2003 will stand for consideration subject to the modification in Condition Nos. 1 and 2. It is the contention of the petitioner that any deficiency in his case vis-a-vis the Condition No. 1 will not stand in the way for affording appointment to him against available post as per directions in the case of Jiban Chandra Deka (supra). 1 and 2. It is the contention of the petitioner that any deficiency in his case vis-a-vis the Condition No. 1 will not stand in the way for affording appointment to him against available post as per directions in the case of Jiban Chandra Deka (supra). More importantly, that unlike Rule 5(3) of the Assam Elementary Education (Provincialisation) Rules, 1977, there is no provision under the Assam Secondary Education (Provincialisation) Act, 1977 stipulating that if a teacher has to be retained at the time of taking over, such teacher must have put in at least two years continuous service immediately preceding the taking over of the school. 7. Mr. B.K. Gogoi, learned State Counsel submits that the petitioner is not entitled to the benefits as claimed in view of the fact that the petitioner’s case cannot be considered as a dropped teacher. To this end Mr. Gogoi makes reference to paragraph 6 of the affidavit-in-opposition filed by Respondent Nos. 1 and 2 to say that at the time when the School was upgraded to Higher Secondary School in the year 1996, only ten posts were sanctioned/allotted to the said school. Out of the said ten allotted posts, the post of Geography was not sanctioned/allotted. Further, at the time of obtaining permission for opening Higher Secondary class in the School, the petitioner was not in service and it was only on 16.09.1995 that he was appointed as a Subject Teacher in Geography. 8. There is yet another affidavit-in-opposition filed on behalf of Respondent No. 5 i.e. the Principal of Rehabari H.S. School. In the said affidavit the Respondent No. 5 clarifies that the petitioner was appointed as a Subject Teacher in Geography on 01.08.1995 and as per decision of the State Government he was placed amongst the dropped Subject Teachers. Also, his post was under the zone of consideration towards provincialisation and it was not known as to why his post was not provincialised. The said affidavit also discloses that the petitioner has been working at Rehabari H.S. School since 1995 without any break and he is the only Geography Teacher in the school catering to the interest of a large number of students. 9. The contentions above have been noticed. The said affidavit also discloses that the petitioner has been working at Rehabari H.S. School since 1995 without any break and he is the only Geography Teacher in the school catering to the interest of a large number of students. 9. The contentions above have been noticed. The only point for consideration is as to whether in the facts and circumstances of the case the petitioner is entitled to the benefits made available to dropped teachers by virtue of the judgment rendered by this Court in the case of Jiban Chandra Deka (supra). Although at the time of upgradation of the School to a Higher Secondary School, the post that was allotted to it did not include the post of Geography, it appears from the subsequent letter of the Director of Secondary Education, Assam that a Screening Committee had been constituted and the case of the petitioner, amongst others, was found to be genuine and that he was a dropped teacher. Accordingly, in the array of persons indicated in the letter dated 15.02.2006 of the Director, followed by the letter dated 21.2.2006 of the Commissioner & Secretary to the Govt. of Assam, Education (S&E) Department, the name of the petitioner squarely figured. It is too late in the day for the respondents to contend that the petitioner is not a dropped teacher. Else, it would go to contradict its own stand as disclosed in the letters dated 15.02.2006 and 21.2.2006. 10. The affidavit filed by the Respondent No. 5 also makes it clear that as per the decision of the Government the petitioner was placed amongst the dropped Subject Teachers and, in fact, he was within the zone of consideration for provincialisation of service which, however, did not come by for reasons not known. It is also indicated in the said affidavit that the petitioner is the only Geography Teacher in the School and he has been working in the School since the year 1995 without any break. 11. While deciding this case the Court is aware of the judgment dated 29.4.2014 in WP(C) 3402/2012 and also the view of the Division Bench of this Court in W.A. 228/2014 whereby claim for provincialisation of dropped teachers of Lower Primary Schools was denied in view of the provisions under Rule 5(3) of the Assam Elementary Education (Provincialisation) Rules, 1977. 11. While deciding this case the Court is aware of the judgment dated 29.4.2014 in WP(C) 3402/2012 and also the view of the Division Bench of this Court in W.A. 228/2014 whereby claim for provincialisation of dropped teachers of Lower Primary Schools was denied in view of the provisions under Rule 5(3) of the Assam Elementary Education (Provincialisation) Rules, 1977. This case is distinct in the sense that the school in question is a Higher Secondary School and not a Lower Primary School and the rigour of Rule 5(3) of the said Rules, 1977 would not come in the way of the petitioner. 12. Having regard to the facts of the case and the directions rendered in the case of Jiban Chandra Deka (supra) with regard to modification of Condition No. 1 of the Policy Document dated 13.1.2003 as well as on the points of law discussed above, this writ petition stands allowed with a direction to the Respondent State to consider the appointment of the petitioner against available posts in the discipline of Geography at a Higher Secondary School in Barpeta District. While doing so the Respondent State shall also bear in mind that he has been working at Rehabari H.S. School since the year 1995 and he is the only Teacher in the said school imparting education in the discipline of Geography. Accordingly, a consideration to that end shall also be made as to whether the petitioner can be absorbed/adjusted and appointed at Rehabari H.S. School. 13. Needless to say that the appointment of the petitioner would be prospective but shall carry the benefit of past service for the purpose of computation of pensionary benefits. 14. In view of the above this writ petition stands allowed. The parties are left to bear their own costs.