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2017 DIGILAW 828 (GAU)

Rajesh Chakroborty v. State of Assam

2017-06-21

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT & ORDER : Manojit Bhuyan, J. Heard Mr. B. Purkayastha, learned counsel for the petitioners as well as Ms. P. Chakraborty, learned counsel representing respondent No. 1. Mr. C. Baruah, Advocate have entered appearance on behalf of respondent No. 2. 2. The primary question raised in this petition is to the constitutionality of clause 8, Schedule II appended to the Assam Education Service Rules, 1982 (hereinafter alluded to as 'the Rules'). Petitioners seek modification to that part of clause 8 where experience as teacher in Secondary Schools is made a requirement for the post of Assistant Inspector of Schools. It is the contention of the petitioners that whereas in the higher post of Inspector of Schools there is no such requirement, save and except teaching experience in schools and colleges, in the feeder post of Assistant Inspector of Schools there is a rigorous requirement of teaching experience in Secondary Schools. The difference in such qualification, according to the petitioners, is discriminatory, not based on any intelligible differentia and suffers from non-application of mind. 3. Before proceeding further, it would be apposite to reproduce the relevant provisions of the Rules which has a direct bearing on the determination of this case. Rule 8 of the Rules prescribes that the academic qualification of a candidate for direct recruitment would be as given in Schedule II to the Rules. Clause 8 of Schedule II which lays down the qualifications and experience required for the post of Assistant Inspector of Schools, is as follows: "8. Assistant Inspector of Schools.-M.A., B.T. or M. Sc., B.T. with at least 7 years experience as teacher in Secondary schools or at least 5 years experience as Teacher in Government Aided or Government College or M.A., B.T., or M. Sc., B.T. with at least 5 years experience as teacher in Secondary Schools and two years experience as Sub-Inspector of Schools, or M.A., B.T. or M.Sc., B.T. and serving as Deputy Inspector of Schools or Additional Deputy Inspector of Schools." As against the above, the qualifications and teaching experience in respect of the higher post of Inspector of Schools, as laid down in clause 3 of Schedule II, is as follows: "3. Inspector/Inspectress of Schools and Deputy D.P.I. - Second Class Master Degree having uniformly brilliant career and possessing teaching experience in schools and colleges for ten years or administrative experience for at least 10 years of which 5 years must be in teaching." 4. On the question that for the lower post of Assistant Inspector of Schools certain qualifications have been considered relevant while for the higher post of Inspector of Schools it is not considered relevant, this issue was gone into by a Division Bench of this Court in WP(C) 3924/2012 instituted by the petitioner No. 1 herein. The said writ petition was answered by the Court by order dated 31.08.2012 observing that there was absence of any prima facie logic for such difference in qualification. This Court held that although the laying down of qualification is the prerogative of the appointing authority, however, the same has to be done on some rationale based on application of mind. The Court did not go into the issue of constitutionality but made direction to the respondent authority to consider the matter by taking the opinion of experts and to reach an appropriate decision. As no steps pursuant to the order dated 31.08.2012 were taken, another writ petition i.e. WP(C) 4433/2012 was instituted by a group of persons, including the petitioner No. 2 herein. In the said case, an affidavit was filed by the State respondent stating that opinion was obtained from two retired officers who held the rank of Director of Secondary Education, Assam and both the officers supported the extant Rules. It was stated that such opinion was based on the ground that whereas the Inspector of Schools is the Head of the District Office, the Assistant Inspector of Schools is required to work towards academic upliftment of the schools. The said opinion of the experts was challenged by the petitioner No. 1 herein in WP(C) 505/2013, which along with two other writ petitions i.e. WP(C) 3184/2013 and WP(C) 4433/2012 stood disposed of on 20.06.2013. Essentially to be noticed, the said three writ petitions stood disposed of in view of the stand taken by the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department in the affidavit dated 06.06.2013 that B.Ed./B.T. Degree is necessary for the post of Inspector of Schools. Essentially to be noticed, the said three writ petitions stood disposed of in view of the stand taken by the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department in the affidavit dated 06.06.2013 that B.Ed./B.T. Degree is necessary for the post of Inspector of Schools. Accordingly, a direction was made that appointments to the post of Inspector of Schools may be made out of candidates having such qualification. Pertinent to note, the constitutionality of the requirement of having experience as a teacher in Secondary Schools for the post of Assistant Inspector of Schools did not reach a final conclusion. 5. Also pertinent to note that in WP(C) 4433/2012, three Miscellaneous Applications were filed by private respondents arrayed therein for modification of the interim order dated 06.02.2013 whereby an injunction was made to fresh appointments. While modifying the same, the Division Bench, inter-alia, observed that qualification has not been laid down based on any expert study. Distinction in job of Assistant Inspector and Inspector is not shown to be qualitatively different and that the State has reiterated the Rules without application of mind. 6. In the backdrop of the observations made in the earlier writ petitions, we are now called upon to consider the core issue as to the irrationality alleged. In the Division Bench order dated 31.08.2012 in WP(C) 3924/2012, this Court was of the prima facie opinion that there was absence of any logic with regard to the difference in qualification between the Inspector of Schools on one hand and the Assistant Inspector of Schools on the other hand. Although the State was directed to look into the matter by consulting experts, the justification advanced and highlighted by the respondents in the affidavit dated 04.05.2017 do not disclose any cogent reasons in answering the issue, as directed to be done. To be precise, the justification tendered at paragraph 4 of the affidavit dated 04.05.2017 is as follows: "4. That pursuant to the judgment as aforesaid a committee of experts was constituted with two retired directors of the secondary education namely Dr. H.C. das & Sri M. Ali to give opinion in the matter. The committee after examining the pros & cons in the matter had submitted their detailed report to the effect that Rule 8 is not discriminatory as compared to Rule 3 of Schedule II of the Act of 1982. H.C. das & Sri M. Ali to give opinion in the matter. The committee after examining the pros & cons in the matter had submitted their detailed report to the effect that Rule 8 is not discriminatory as compared to Rule 3 of Schedule II of the Act of 1982. The basis for such opinion was that the Assistant Inspector of Schools are posted in the office of the Inspector of Schools who visits all the schools in the concerned districts. They are fully entrusted with academic upliftment in those schools and put forward their suggestion to improve the academic atmosphere and teaching methodology. Therefore a B.T. or B.Ed degree is a natural requirement to assess the same." The reasons so assigned in support of the stand that Clause 8 is not discriminatory as compared to clause 3 of Schedule II, in our considered opinion, is vague and rendered without due application of mind. 7. A paradox is created, in that, whereas clause 8 of Schedule II to the Rules stipulates the requirement of teaching experience in Secondary Schools for the lower post of Assistant Inspector of Schools, clause 3 thereof stipulates teaching experience only in schools and colleges for the higher post of Inspector of Schools. This distinction clearly defies logic. Even when the State respondent was directed to look into the issue by obtaining opinion of experts, no cogent explanation could be provided, save and except, that the two experts supported the distinction made. The above distinction has the effect of holding that the qualification for the post of Inspector of Schools is lesser than the qualification meant for the lower post of Assistant Inspector of Schools. In other words, the qualification for Assistant Inspector has been made more rigorous than that of the Inspector of Schools. A close perusal of clause 8 vis-a-vis clause 3 of Schedule II makes this Court to reach the only conclusion that the requirement of having teaching experience in Secondary Schools for the post of Assistant Inspector of Schools is irrational and calls for interference of this Court. The said requirement of experience as teacher in Secondary Schools under clause 8 of Schedule II cannot stand the test of Article 14 of the Constitution of India. The said requirement of experience as teacher in Secondary Schools under clause 8 of Schedule II cannot stand the test of Article 14 of the Constitution of India. We accordingly direct that as in clause 3 of Schedule II, the requirement of teaching experience for Assistant Inspector of Schools would be met if a candidate having the required academic qualification as stipulated therein has the required number of years' experience in schools and colleges, as in the case of Inspector of Schools under clause 3. Clause 8 of Schedule II of the Rules is now to encompass the candidates having at least seven years teaching experience in schools and colleges, besides the other eligibility academic qualifications. The expression employed in said clause 8 i.e. "in Secondary schools" is declared ultra-vires the Constitution of India. The said expression shall now read as "in schools and colleges" in clause 8 of Schedule II of the Rules. 8. Having declared as above, the respondent authorities shall proceed to make appointment to the post of Assistant Inspector of Schools. This disposes of the present writ petition.