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2016 DIGILAW 337 (GAU)

Amanul Islam v. State of Assam

2016-04-29

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Ms. J. Ahmed, learned counsel appearing on behalf of Mr. M. Sarma, learned counsel for the petitioner in WP(C) No. 5257/2012 and Mr. AM Buzarbaruah, learned Senior Counsel assisted by Mr. S.K. Das, learned counsel appearing for the petitioner in WP(C) No. 4481/2015. Also heard Mr. S. Borthakur, learned counsel appearing for respondent No. 4 in WP(C) No. 4481/2015 and respondent No. 5 in WP(C) No. 5257/2012 and Mr. U.K. Goswami, learned Standing Counsel, Secondary Education Department. 2. Both the writ petitions are being disposed off by this common order and the facts of WP(C) No. 4481/2015 are being considered for disposal of the present dispute. The present dispute is with regard to who should be allowed to hold the charge of Principal of the School. Also whether the I/c Principal has to have B.Ed degree as per Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003, hereinafter referred to as the “2003 Rules” subsequently amended by the Assam Secondary Education Provincialised Service (Amended) Rules, 2012, in short the “2012 Rules”, which states that the Principal has to have B.T/B.Ed degree. 3. It should be noted here that with respect to the seniority position of the writ petitioner in WP(C) No. 4481/2015, writ petitioner in WP(C) No. 5257/2012 and the respondent No. 4 in WP(C) No. 4481/2015 and respondent No. 5 in WP(C) No. 5257/2012, the same is as follows :- 1. Mr. Pradip Chakravorty (Assistant Teacher), respondent No. 4 in WP(C) No. 4481/2015 and respondent No. 5 in WP(C) No. 5257/2012. 2. Mr. Jagat Dutta, writ petitioner in WP(C) No. 5257/2012 (subject teacher) and 3. Mr. Amanul Islam, writ petitioner in WP(C) No. 4481/2015 (subject teacher). 4. With respect to WP(C) No. 5257/2012, the writ petitioner, Sri Jagat Dutta being junior to Pradip Chakravorty in seniority and as Sri Jagat Dutta does not have a B.Ed degree, the decision in the present case will not make any difference to Sri Jagat Dutta and accordingly, the case of Sri Jagat Dutta, i.e. WP(C) No. 5257/2012 is not being considered as the question in the present case basically relates to whether Sri Amanul Islam or Pradip Chakravorty will hold the charge of I/c Principal. Accordingly, the facts of WP(C) No. 4481/2015 are being considered for disposal of the two cases. 5. Accordingly, the facts of WP(C) No. 4481/2015 are being considered for disposal of the two cases. 5. The case of the petitioner in WP(C) No. 4481/2015 is that the petitioner is the subject teacher of Dalgoma H.S. School, Goalpara while the respondent No. 4 in WP(C) No. 4481/2015 is the Assistant Teacher and I/c Principal of the said School as per the order dated 09.07.2015. 6. Due to the retirement of I/c Principal, Akash Ali on 31.12.2011, the petitioner in WP(C) No. 5257/2012, Sri Jagat Dutta was appointed as I/c Principal on 08.02.2012. Sri Jagat Dutta (subject teacher) had been appointed as I/c Principal on the basis of the order dated 29.03.2011 in which the Secondary Education Department had held that subject teachers would be given preference over Assistant Teachers for holding the charge of I/c Principal. 7. The respondent No. 4 vide WP(C) No. 3535/2012 challenged the appointment of Sri Jagat Dutta as I/c Principal. WP(C) No. 3535/2012 was disposed off vide order dated 26.07.2012 directing the respondent authorities to consider afresh the question of who should hold the post of I/c Principal, in view of the fact that the order dated 29.03.2011, which gave preference to subject teachers over Assistant Teachers for appointment to Principals had been withdrawn by the respondent authorities on 28.01.2012. 8. In pursuance to the order dated 26.07.2012 passed in WP(C) No. 3535/2012, the Secretary to the Government of Assam, Education (Secondary) Department issued order dated 08.10.2012, wherein the respondent No. 4 was found to be senior than Sri Jagat Dutta. 9. Thereafter, in pursuance to the order dated 08.10.2012 issued by the Secretary to the Government of Assam, Education (Secondary) Department, an order dated 02.11.2012 was issued by the Director, Secondary Education Department wherein the respondent No. 4 was allowed to hold the post of I/c Principal of the said School. 10. The petitioner herein being aggrieved by the respondent authorities allowing the respondent No. 4, who did not have the B.T/B.Ed qualification to hold the post of I/c Principal filed WP(C) No. 4616/2014. 10. The petitioner herein being aggrieved by the respondent authorities allowing the respondent No. 4, who did not have the B.T/B.Ed qualification to hold the post of I/c Principal filed WP(C) No. 4616/2014. The petitioner's case in WP(C) No. 4616/2014 was that the petitioner had B.Ed qualification and in view of the fact that the respondent No. 4 did not have B.Ed qualification, as required by Rule 12 of the Assam Secondary Education (Provincialised) Service Rules, 2003, as amended by the 2012 Rules, the appointment of the respondent No. 4 should be set aside and the petitioner should be appointed to hold the post of I/c Principal. 11. This Court vide order dated 14.05.2015 disposed off WP(C) No. 4616/2014 directing the authorities to take a fresh decision with regard to who should hold the post of I/c Principal without being influenced in any manner by the observations made by this Court in its earlier orders and to take a fresh decision in accordance with law. 12. In pursuance to the order dated 14.05.2015 passed in WP(C) No. 4616/2016, the Director of Secondary Education, Assam issued a speaking order dated 09.07.2015 wherein he stated that the provision to the 2003 Rules as amended by 2012 Rules was not retrospective and that the criteria of M.A./B.Ed degree cannot be applied to a person, who is to hold the charge of Principal. The speaking order held that the petitioner could not be allowed to hold the charge of Principal, as he was junior to the respondent No. 4. It may be mentioned here that prior to the amendment of the 2003 Rules by the 2012 Rules, which came into force on 10.07.2012, B.Ed qualification was not required for a person to be appointed as Principal. 13. Mr. AM Buzarbaruah, learned Senior Counsel appearing for the writ petitioner in WP(C) No. 4481/2015 submits that as per the amendment made to Rule 12 of the 2003 Rules vide the 2012 Rules on 10.07.2012, a person cannot be appointed to the post of Principal or hold the post of I/c Principal unless he has a B.Ed degree. 13. Mr. AM Buzarbaruah, learned Senior Counsel appearing for the writ petitioner in WP(C) No. 4481/2015 submits that as per the amendment made to Rule 12 of the 2003 Rules vide the 2012 Rules on 10.07.2012, a person cannot be appointed to the post of Principal or hold the post of I/c Principal unless he has a B.Ed degree. He submits that the respondent No. 4 does not have a B.Ed degree and accordingly in view of the various judgments passed by this Court, especially order dated 14.12.2015 passed in WP(C) No. 2451/2014, the impugned speaking order dated 09.07.2015 should be set aside and the petitioner should be made to hold the post of I/c Principal till regular appointment is made to the post of Principal. 14. Mr. A.M. Buzarbaruah, learned Senior Counsel appearing for the writ petitioner in WP(C) No. 4481/2015 submits that the vacancy to the post of I/c Principal occurred only after amendment of the 2003 Rules by the 2012 Rules, i.e., on 26.07.2012, when the appointment of Sri Jagat Dutta as I/c Principal was set aside in WP(C) No. 3535/2012 vide order dated 26.07.2012. Accordingly, the vacancy having occurred after the amendment of the 2003 Rules by the 2012, the requirement of having a B.Ed degree to hold the post of Principal or I/n Principal was mandatory. 15. Mr. S. Borthakur, learned counsel appearing for respondent No. 4 submits that the vacancy to the post of Principal arose prior to the amendment of the 2003 Rules requiring the Principal to have the education qualification of B.T/B.Ed. He submits that in view of the law laid down by the Apex Court with regard to the vacancy being filled up as per the law/recruitment rules in force when the vacancy occurred, the State respondents did not commit any infirmity in allowing the respondent No. 4 to hold the charge of Principal even though the respondent No. 4 does not have B.T/B.Ed degree. He further submits that though the respondent No. 4 was made to hold the post of I/c Principal only from 02.11.2012, his right to the said post accrued when Sri Jagat Dutta (writ petitioner in WP(C) No. 5257/2012) was made to hold the post of I/c Principal on 08.02.2012. He further submits that though the respondent No. 4 was made to hold the post of I/c Principal only from 02.11.2012, his right to the said post accrued when Sri Jagat Dutta (writ petitioner in WP(C) No. 5257/2012) was made to hold the post of I/c Principal on 08.02.2012. He submits that the order dated 29.03.2011, which was later withdrawn does not have any force of law, inasmuch as, it is only an order resolving a dispute between two parties by the Government. He also submits that the question of the subject teacher having been preferred over Assistant Teacher in respect of appointment to the post of I/c Principal of a School has already been settled by this Court in Trinayan Ch. Dutta and others Vs. State of Assam and others, reported in 2012 (2) GLT 1086, wherein no preference can be given to a Subject Teacher over an Assistant Teacher for appointment to the post of Principal or I/c Principal. 16. Mr. S Borthakur, learned counsel appearing for respondent No. 4 thus basically submits that there is no requirement for a person to have B.T/B.Ed degree as is the case of the respondent No. 4, as the amendment came into force only after the vacancy had occurred. Learned counsel for the respondent No. 4 also submits that Rule 15(1) of the amended 2003 Rules requires the Director of Secondary Education to make an assessment of the number of vacancies of the cadre to be filled up for promotion in the next year. He also submits that the post of Principal having become vacant prior to the amended Rules, the same will have to be filled up as per the un-amended 2003 Rules. The post of I/c Principal would also have to be filled up as per un-amended 2003 Rules till regular appointment of a Principal is made. He also submits that as the respondent No. 4 is the senior most teacher, the respondent No. 4 was the correct choice to hold the charge of Principal. 17. Mr. UK Goswami, learned Standing Counsel, Secondary Education Department submits that as the vacancy in the post of Principal occurred prior to the amendment of 2003 Rules, the same has to be filled up as per the 2003 Rules. 18. I have heard the learned counsels for the parties. 19. The Apex Court in the case of Y.V. Rangaiah and ors. Vs. 18. I have heard the learned counsels for the parties. 19. The Apex Court in the case of Y.V. Rangaiah and ors. Vs. J. Sreenivasa Rao and ors., reported in (1983) 3 SCC 284 has held that when panels are not prepared within the time stipulated in the Rules, and instead panels are drawn up after amendment of the Rules for promotion, the post which fell vacant prior to the amended Rules would be governed by the old Rules and not by the new Rules. 20. Rule 15(1) of the 2003 Rules is reproduced below:- “15. Procedure of selection-(1) Before the end of each year the Director of Secondary Education, in consultation with the Inspector of Schools, shall make an assessment of the number of vacancies occurred in the cadres of Vice-President/Head Master/Head Mistress/Asstt. Head Master/Asstt. Head Mistress/Asstt. Superintendent to be filled up by promotion in the next year.” 21. A perusal of the Rule 15(1) of the 2003 Rules shows that the same is only for the purpose of promotion and there is no mention of the post of Principal. 22. It is submitted at the bar that the post of Principal is to be filled up through a selection process and it cannot be made by way of promotion. 23. In view of the fact that Principal is not mentioned in Rule 15(1) of the 2003 Rules or the 2012 Rules and as the post of Principal is not a promotional post, but has to be made by way of direct recruitment, the judgment of the Apex Court in the case of Y.V. Rangaiah (supra) is not applicable to the present case. 24. Rule 12 and 13 of the 2012 Rules requires the candidate, who is to be recruited by way of selection to the post of Principal to have the mandatory educational qualification of Post Graduate with B.T./B.Ed. 25. The Division Bench of this Court in WA No. 11/2015 (Farid Uddin Ahmed v. Abdul Matin Choudhury & Ors.) decided on 18.05.2015 has held that an incumbent has no right to remain as Principal of the School even on I/c basis once it is found that he does not have the essential qualification for the post of Principal of the School, namely, PG with B.T/B.Ed degree. 26. In the present case, the petitioner does not have B.T/B.Ed degree. 26. In the present case, the petitioner does not have B.T/B.Ed degree. In that view of the matter, the appointment of the petitioner as I/c Principal cannot with-stand the scrutiny of law and accordingly the impugned orders dated 02.11.2012, 05.02.2013 and the speaking order dated 09.07.2015 are set aside. In view of the fact that the I/c Principal is to have a B.T/B.Ed degree, which the petitioner in WP(C) No. 5257/2015 does not have, the case of the petitioner in WP(C) No. 5257/2012 cannot be considered to hold the post of I/c Principal also. 27. Consequently, the respondent Nos. 1 and 2 are to take a fresh decision to appoint the senior most eligible teacher of the School having P.G. with B.T/B.Ed degree from any recognised University to hold the charge of Principal of the said School, till regular appointment is made to the post of Principal. 28. The said exercise shall be completed within a period of 2(two) months from the date of receipt of a certified copy of this order. The respondent Nos. 1 and 2 shall decide and make the necessary orders for I/c Principal, keeping in mind Rule 12(2)(i) of the 2003 Rules, as amended by the Assam Secondary Education Provincialised Service (amended) Rules, 2012 and other relevant Circulars and notifications issued by the State Government. 29. Till such decision is made by the respondent Nos. 1 and 2 and orders are issued for holding the post of I/c Principal, the Inspector of Schools, Goalpara District Circle, Goalpara, shall manage the School. 30. The writ petition, WP(C) No. 4481 of 2015 is accordingly allowed while WP(C) No. 5257 of 2012 is dismissed.