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2017 DIGILAW 91 (GAU)

Niran Dutta v. Hari Prasad Das

2017-01-19

UJJAL BHUYAN

body2017
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. B.D. Das, learned Senior counsel, assisted by Mr. H.K. Sharma, learned counsel for the applicant, Mr. A.D. Choudhury, learned counsel for the opposite party-writ petitioner and Mr. A. Deka, learned Standing Counsel, Elementary Education Department, Govt. of Assam. 2. This application has been filed by the applicant seeking vacation of the interim order dated 02.11.2016 passed in WP(C) No.6488/2016. 3. Applicant is the respondent No.5 in the related writ petition filed by the opposite party as the writ petitioner. 4. Writ petition has been filed assailing the legality and validity of order dated 03.10.2016 passed by the Joint Secretary to the Govt. of Assam, Elementary Education Department allowing respondent No.5 to hold the current charge as in-charge Block Elementary Education Officer (BEEO), Bordoloni Education Block, Dhemaji until further orders or till alternative arrangement is made. 5. Both opposite party and applicant are serving as Sub-Inspector of Schools under the Elementary Education Department, Govt. of Assam. While opposite party is serving as Sub-Inspector of Schools under Narayanpur Education Block, applicant is serving as Sub-Inspector of Schools, Bordoloni Education Block. According to the opposite party, he is the senior-most Sub-Inspector of Schools and when the post of BEEO, Bordoloni Education Block fell vacant due to promotion of the incumbent, he was allowed to hold the current charge of BEEO, Bordoloni in the resultant vacancy. It is stated that pursuant to such order, opposite party had taken over the additional charge. However, by the impugned order dated 03.10.2016, respondent No.5 (applicant) was allowed to hold the current charge as in-charge BEEO, Bordoloni. It is contended that while opposite party became the Sub-Inspector of Schools on 05.07.2003, respondent No.5 (applicant) was appointed as Sub-Inspector of Schools only on 30.07.2015, 12 years after the opposite party. Therefore, overlooking of the seniority of opposite party was not justified. It is with this grievance that the related writ petition came to be filed. 6. This Court by order dated 02.11.2016, had issued notice and stayed the impugned order dated 03.10.2016 in respect of the opposite party. 7. It is for vacation of this order that the present application has been filed by respondent No.5 (applicant), which has been registered as IA (C) No.2325/2016. 8. 6. This Court by order dated 02.11.2016, had issued notice and stayed the impugned order dated 03.10.2016 in respect of the opposite party. 7. It is for vacation of this order that the present application has been filed by respondent No.5 (applicant), which has been registered as IA (C) No.2325/2016. 8. While acknowledging the seniority of the opposite party, applicant has however contended that opposite party does not possess BT/B. Ed degree, which is an essential qualification to hold the post of BEEO. It is further contended that the post of BEEO is a promotional post and candidates having BT/B. Ed degree are only eligible to hold the post of BEEO as per Assam Education Service Rules, 1982. Since opposite party does not possess BT/B. Ed degree, he could not have been given even the temporary charge of BEEO. Therefore, there is no infirmity in the impugned order. Accordingly, interim order should be vacated. 9. At the outset, it would be apposite to briefly refer to the impugned order dated 03.10.2016, relevant portion of which is extracted hereunder :- "In the interest of public service, Shri Niran Dutta, Sub-Inspector of Schools, Bordoloni is hereby temporarily allowed to hold the current charge as i/c BEEO Bordoloni Education Block along with financial power under FR 49(c) and as per Finance (Estt-A) Deptt's OM No.FEG.18/90/46 dated 10.4.2000 without statutory power with effect from the date of taking over charge until further orders or till alternative arrangement is made whichever is earlier in addition to his own duties vice Shri Jitendra Nath Saikia, BEEO promoted. The office will be held responsible for any over/excess/fraudulent drawal of fund under FRBM Act, 2005." 10. The impugned order as extracted above makes interesting reading. While allowing the applicant to be the in-charge BEEO until further orders or till alternative arrangement is made, it was remarked that the officer would be held responsible for any over/excess/fraudulent drawal of fund under the Fiscal Responsibility and Budget Management Act, 2005. It is not understood as to why this particular remark had to be incorporated in the impugned order. Is it because of lack of confidence on the Government officer that he would indulge in such illegal activity ? Or is there a general presumption by the higher authority that because of holding of such office, there may be inducement to indulge in such activities. Is it because of lack of confidence on the Government officer that he would indulge in such illegal activity ? Or is there a general presumption by the higher authority that because of holding of such office, there may be inducement to indulge in such activities. But whatever that may be, recording of such remark is quite unusual and appears to be quite offensive though it is another matter that no offence has been taken either by the applicant or by the opposite party. 11. Be that as it may, as already noticed above, both applicant and opposite party are serving as Sub-Inspector of Schools. The post of BEEO having fallen vacant, initially opposite party was allowed to be the in-charge BEEO and thereafter by the impugned order, applicant has been allowed to be the in-charge BEEO. 12. It is stated that the post of BEEO had fallen vacant following promotion of the incumbent to the post of Deputy Inspector of Schools. It is submitted at the Bar that the post of BEEO is covered by the Assam Education Service Rules, 1982. 13. In view of the submission made, provisions of the Assam Education Service Rules, 1982 (1982 Rules) may be adverted to. 14. The preamble to the 1982 Rules mentions that the said set of Rules has been framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India to regulate recruitment and conditions of service of persons appointed to the Assam Education Service. 15. As per Rule-3, Assam Education Service consists of Class-I and Class-II. While Class-I comprises of the cadres from Director in descending order up-to Assistant Inspector of Schools, Class-II comprises of the cadres of Lecturer of various categories and Deputy Inspector of Schools. However, Rule 3(2)(ii) provides that Assam Education Service may also include any cadre or post declared by the Government to be a cadre of the service. 16. From a careful analysis of Rule 3, it does not appear that either Sub-Inspector of Schools or BEEO are cadre posts within the Assam Education Service. There is nothing on record to show any declaration by the State Government including Sub-Inspector of Schools and BEEO in the Assam Education Service as distinct and separate cadres. 17. Proceeding further, it is seen that Rule 4 provides for strength of each cadre of the service i.e., Assam Education Service. There is nothing on record to show any declaration by the State Government including Sub-Inspector of Schools and BEEO in the Assam Education Service as distinct and separate cadres. 17. Proceeding further, it is seen that Rule 4 provides for strength of each cadre of the service i.e., Assam Education Service. Schedule-I to the 1982 Rules discloses the strength of the cadres on the date of commencement of the 1982 Rules. 18. Rule 5 deals with method of recruitment. As per Rule 5(i), recruitment to the post of Director and other posts mentioned therein is by way of direct recruitment. As per Rule 5(ii), recruitment to the posts mentioned therein is by way of promotion in the manner prescribed in Rule 11. The post of Deputy Inspector of Schools is included in Rule 5(ii). In other words, post of Deputy Inspector of Schools, which is included in Class-II of the Assam Education Service, is to be filled up by way of promotion in the manner prescribed in Rule 11. 19. As per Rule 11(h), the post of Deputy Inspector of Schools/Additional Deputy Inspector of Schools and District School Education Officer shall be filled up from the select list of Sub-Inspector of Schools. Thus, it is only in Rule 11(h) that for the first time there is mention about the post of Sub-Inspector of Schools though it is not mentioned as a post or cadre comprising Assam Education Service under Rule 3. Moreover, as already noticed above, there is nothing on record to show exercise of power by the State Government under Rule 3(2)(ii) declaring the post of Sub-Inspector of Schools or BEEO as distinct and separate cadres of the Assam Education Service. Be that as it may, as per Rule 11 (h), the post of Deputy Inspector of Schools is to be filled up by way of promotion from a select list of Sub-Inspector of Schools having 7 years of experience. This would mean that the post of Sub-Inspector of Schools is the feeder cadre for the promotional post of Deputy Inspector of Schools. Rule 12 lays down the procedure of promotion. 20. Schedule-I indicates that at the time of commencement of the 1982 Rules, there were a total of 27 posts in the cadre of Deputy Inspector of Schools. 21. This would mean that the post of Sub-Inspector of Schools is the feeder cadre for the promotional post of Deputy Inspector of Schools. Rule 12 lays down the procedure of promotion. 20. Schedule-I indicates that at the time of commencement of the 1982 Rules, there were a total of 27 posts in the cadre of Deputy Inspector of Schools. 21. As per Schedule-II (iii) (8), the qualification required for the post of Assistant Inspector of Schools, which is in Class I of the Assam Education Service, is MA/M.Sc having BT/B.Ed degree with 7 years of teaching experience in Secondary Section or at least 5 years teaching experience in Government aided or Government college or MA/M.Sc with BT/B.Ed degree with at least 5 years of teaching experience in Secondary Section and two years experience as Sub-Inspector of Schools or MA/M.Sc with BT/B.Ed degree and serving as Deputy Inspector of Schools or Additional Deputy Inspector of Schools. In other words, to be eligible to hold the post of Assistant Inspector of Schools, which is a cadre post under Class-I of the Assam Education Service, one needs to be a Post-Graduate degree holder with B.Ed/BT and serving as Deputy Inspector of Schools or Additional Deputy Inspector of Schools. Alternatively, such candidate can have 5 years teaching experience in Secondary Section and 2 years experience as Sub-Inspector of Schools. 22. The picture that emerges from a conjoint reading of the different provisions of the 1982 Rules is extremely hazy without any clear-cut hierarchy of cadres in the Assam Education Service. Since Deputy Inspector of Schools is a cadre post and is to be filled up by way of promotion from the feeder post of Sub-Inspector of Schools, therefore, it can safely be deduced that Sub-Inspector of Schools is the feeder cadre for the promotional cadre of Deputy Inspector of Schools though Sub-Inspector of Schools is not a cadre within the Assam Education Service under Rule 3 of the 1982 Rules. If that be so, it is not understood as to from where the post of BEEO has emerged. Under the 1982 Rules, it is certainly not a cadre post and as per promotional channel provided under the 1982 Rules promotion is from Sub-Inspector of Schools to Deputy Inspector of Schools and not from Sub-Inspector of Schools to BEEO and from BEEO to Deputy Inspector of Schools. Under the 1982 Rules, it is certainly not a cadre post and as per promotional channel provided under the 1982 Rules promotion is from Sub-Inspector of Schools to Deputy Inspector of Schools and not from Sub-Inspector of Schools to BEEO and from BEEO to Deputy Inspector of Schools. There appears to be no legal sanction to the post of BEEO, not to speak of promotion to or from the said post. Since there is no existence of the post of BEEO under the 1982 Rules, question of prescribing any eligibility criteria for holding such post, such as B.Ed/BT, as contended by the applicant does not arise. This is an apparent incongruity and an anomalous situation with which the Court is confronted with in the present litigation. 23. In the course of hearing, Mr. Deka, learned Standing Counsel, submitted that there is one BEEO for each Education Block in the State. Even by a conservative estimate, at present, there may be over 100 BEEOs in the State of Assam drawing handsome salary, impacting the State exchequer in a significant way. This is a matter of concern and needs to be looked into by the authorities of the Education Department at the highest level. There cannot be promotion to a post which does not exist under the law and consequently there cannot be any in-charge appointment to such post. On the contrary, what is discernible is that the State has made promotion from BEEO to Deputy Inspector of Schools. In the process, a large number of posts of BEEO had fallen vacant which have been filled up temporarily by allowing the Sub-Inspector of Schools to be the in-charge BEEO with the 'warning remark' as already noticed. 24. Such a situation needs to be remedied at the earliest. Since the post of BEEO is not sanctioned by any law, question of filling up the said post either on temporary basis or on regular basis may not arise. To that extent, tussle between the applicant and the opposite party as to who should be the in-charge BEEO becomes largely irrelevant. 25. Accordingly, while maintaining the status quo, direction is issued to the Additional Chief Secretary to the Govt. of Assam in charge of Education to examine this aspect of the matter and do the needful so that the apparent anomaly can be addressed at the earliest. Let the Additional Chief Secretary to the Govt. 25. Accordingly, while maintaining the status quo, direction is issued to the Additional Chief Secretary to the Govt. of Assam in charge of Education to examine this aspect of the matter and do the needful so that the apparent anomaly can be addressed at the earliest. Let the Additional Chief Secretary to the Govt. of Assam in charge of Education take an appropriate decision in this regard after consultation with all the stakeholders within a period of three months from today. 26. Let a copy of this order be furnished to Mr. A. Deka, learned Standing Counsel, for doing the needful. 27. IA stands disposed of.