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2018 DIGILAW 1198 (GAU)

Susmita Deb Shome v. State of Assam

2018-08-14

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. N. Dhar, learned counsel for the petitioner. Also heard Mr. R.P. Kakati, learned senior counsel appearing for the respondent No.6, Mr. S. Dey, learned counsel appearing for the respondent No.5 and Mr. N. Sarma, learned Standing Counsel for the Secondary Education Department. 2. The petitioner was appointed as a Graduate Teacher in the Public Higher Secondary School, Karimganj as per the order dated 11.03.1992, whereas the respondent No.6 was appointed as a Science Graduate Teacher in the Bhanga Higher Secondary School on 23.03.1992. Both the petitioner as well as the respondent No.6 participated in a selection process for the post of Principal of the Public Higher Secondary School. 3. By a communication of the Inspector of School, Karimganj, the name of Sri Asit Bhusan Deb was approved by the Government of Assam to be the President of the School Management and Development Committee (SMDC) of the Public Higher Secondary School, Karimganj and accordingly by the resolution dated 19.10.2016 a new SMDC of the School with Sri Asit Bhusan Deb as President was formed. 4. Subsequent thereto, by the resolution No.1 dated 16.11.2016 of the SMDC, the School Selection Committee for the purpose of selection the Principal of School was formed which was as follows: Resolution No.1 "At the request of the President the Member Secretary has apprised the meeting anew regarding the today's agenda as well as read out the criteria to nominate the member for constitution of School Selection Committee as prescribed by the Govt. After a threadbare discussion the name of senior-most Post Graduate Teacher Mrs. Jayasree Das has nominated as Post Graduate Teacher as there is no Vice-Principal is working in this school. Apart from that the guardians present in the meeting after discussion amongst them have unanimously proposed the name of Sri Subrata Lal Muhari as the Member from the parents. Accordingly, the Selection Committee has been formed as under:- 1. Chairman - Sri Asit Bhusan Deb 2. Member - (i) Mrs. Jayasree Das, P.G.T. (ii) Sri Subrata Lal Muhari, Parent Member, SMDC 3. Member Secretary - Sri Dipankar Shome, As nominated by the Govt." The said selection committee conducted the selection process and apparently recommended the respondent No.6 for the post of Principal. 5. Accordingly, the recommendation of the School Selection Committee was referred to the State Selection Board, Assam. Jayasree Das, P.G.T. (ii) Sri Subrata Lal Muhari, Parent Member, SMDC 3. Member Secretary - Sri Dipankar Shome, As nominated by the Govt." The said selection committee conducted the selection process and apparently recommended the respondent No.6 for the post of Principal. 5. Accordingly, the recommendation of the School Selection Committee was referred to the State Selection Board, Assam. Thereupon the Government Vide letter No.ASEB2/2014/PT-D/1304 dated 14.03.2017 had approved the recommendation of the State Selection Board, and as a result, by the order dated 02.05.2017 of the Director of Secondary Education of Assam, the respondent No.6 was appointed as the Principal of the Public Higher Secondary School on a regular basis. 6. In this writ petition, the said order of appointment of the respondent No.6 dated 02.05.2017 has been assailed, by seeking a further relief that the respondents be also Page No.# 4/9 directed to appoint the petitioner as the Principal of the School. 7. Mr. N. Dhar, learned counsel for the petitioner assails the appointment of the respondent No.6 on the following grounds: (i) While constituting the School Selection Committee, Sri Dipankar Shome was appointed as the Member Secretary of the School Selection Committee, whereas under Rule-8(4) of the Assam Higher Secondary School (Provincialisation) Services Rules of 2003 (in short, Rules of 2003), only the Principal/Headmaster of the School can be a Member Secretary. It is also the contention of Mr. Dhar, that as the selection is for the post of Principal of a Higher Secondary School, therefore, a Graduate Teacher cannot be appointed as a Member Secretary who invariably, must be a Post Graduate Teacher. (ii) Under Rule 12(2)(5) of the 2003 Rules, the Selection Committee is also required to determine the administrative ability and leadership skill of the respective candidates and therefore, when a candidate is from another school such determination cannot be made. (iii) While the petitioner has several certificates issued by the Principal of the concerned school, the respondent No.6 does not have any such certificate issued by the Principal of the School. (iv) Certain criminal proceedings were initiated against the respondent No.6 and therefore, he is not fit enough to be recommended and appointed as the Principal of the School. 8. In his reply to what the learned counsel for the respondent No.6 has submitted, Mr. (iv) Certain criminal proceedings were initiated against the respondent No.6 and therefore, he is not fit enough to be recommended and appointed as the Principal of the School. 8. In his reply to what the learned counsel for the respondent No.6 has submitted, Mr. Dhar, also contended that while Rule 16 of Rules of 2003 requires an educationist to be the Member Secretary of the Selection Committee, but in the instant case, no such educationist was included in the School Selection Committee. Mr. Dhar, also by referring to Paragraphs-38 of the decision rendered by this Court in Jamaluddin Ahmed & Others Vs The State of Assam & Others, 2012 1 GauLT 1 , contends that a candidate from another school is ineligible to participate for the post of Principal of given school. 9. Mr. R.P. Kakati, learned senior counsel for the respondent No.6, on the other hand, contends that although initially a criminal proceeding was initiated against the respondent No.6, but by the Judgment & Order dated 17.11.2012 in G.R. case No.180/2011 in the Court of the learned Chief Judicial Magistrate, Karimganj, he was honorably acquitted, as no evidence at all could be found against him. Accordingly, it is the submission of Mr. Kakati, that the earlier initiation of a criminal proceeding against the respondent No.6 can no longer be a ground to deprive him from being recommended for the post of Principal. 10. As regards the non-availability of certificates of the respondent No.6, Mr. Kakati, learned senior counsel submits that on the contrary the respondent No.6 was issued certain national level certificates in the field of sports and other events and such certificates are of higher value than those which were issued by the Principal of the Institute. 11. Heard and considered the submissions of the rival parties. 12. As regards the first issue raised by Mr. N. Dhar, learned counsel for the petitioner that the concerned person Sri Dipankar Shome, a Government nominee could not have been made the Member Secretary of the School Selection Committee, it is taken note of that Rule-8(4) of the Rules of 2003, inter-alia, provides that the Member Secretary of the School Selection Committee shall be the Principal/Headmaster of the concerned school. But a situation arises, if the Principal/Headmaster of the concerned school himself is one of the candidates for the post, for which the selection is made, who should be the Member Secretary under the circumstance. That aspect of the matter has been clarified by the Director of Secondary Education, Assam by the order dated 15.06.2016, wherein it is provided that in the event, the Principal himself is one of the candidate for the post, for which the selection is made, in such event, the Inspector of Schools will notify a Post Graduate Teacher having Master Degree with B.Ed or a senior most Graduate Teacher having Master Degree with B.Ed to exercise the function of the Member Secretary of the School Selection Committee. 13. Although, Mr. N. Dhar, learned counsel for the petitioner raises an issue that the said provision of the order dated 15.06.2016 is in conflict with the provisions of Rule 8(4) of the Rules of 2003, but upon an examination of the provisions of Rule 8(4) and that of the order dated 15.06.2016, this Court is of the view that there is no conflict between the provisions of Rule 8(4) of the Rules of 2003 and the order dated 15.06.2016. The order dated 15.06.2016 merely fills in the gap that exist in Rule 8(4) to the extent that what would be the situation, if the Principal or the Headmaster himself is one of the candidate, who is also participating in the selection process. 14. The provisions of the order dated 15.06.2016 providing that in such event, the Inspector of Schools will notify a Post Graduate Teacher having Master Degree with B.Ed or a senior most Graduate Teacher having Master Degree with B.Ed to function as a Member Secretary for the purpose of the selection, according to this Court, is not in conflict with the provisions of Rule 8(4). 15. As provided by the Director in the order dated 15.06.2016, the Inspector of Schools, Karimganj by a notification dated 04.11.2016 had nominated Sri Dipankar Shome, MA B.Ed, Assistant Teacher of Public Higher Secondary School to be the Member Secretary. The said provision of the notification dated 04.11.2016 is also in conformity with the order dated 15.06.2016 inasmuch as, the said Sri Dipankar Shome is a Post Graduate with B.Ed degree and therefore, he is duly qualified to be function as the Member Secretary. The said provision of the notification dated 04.11.2016 is also in conformity with the order dated 15.06.2016 inasmuch as, the said Sri Dipankar Shome is a Post Graduate with B.Ed degree and therefore, he is duly qualified to be function as the Member Secretary. Further, it has also been brought to the notice of the Court that in as per the seniority list of the teaching staffs of Public Higher Secondary School, Karimganj, one Smti Jayashree Das is the senior most teacher, being a Subject Teacher, whereas the respondent No.6 Smti Susmita Deb is the second senior most teacher, being a Graduate Assistant Teacher and Sri Dipankar Shome is the third senior most teacher, being a Graduate Assistant Teacher. It is also taken note of that by the resolution dated 16.11.2016, Smti Jayashree Das, Post Graduate Teacher was nominated as a Member of the School Selection Committee, which again is in conformity with the provisions of Rule 8(4) of the 2003 Rules. The second senior most person Smti Susmita Deb is the writ petitioner, who is a candidate for the post of Principal. In the circumstance, the third senior most teacher Sri Dipankar Shome, being nominated as the Member Secretary does not suffer from any infirmity. 16. In view of the aforesaid conclusion, this Court does not find any reason to accept the contention of the learned counsel for the petitioner that Sri Dipankar Shome being a Graduate Teacher is not duly qualified to be the Member Secretary of the School Selection Committee, inasmuch as, the post for which the selection is made is the post of Principal of the school. 17. It is further taken note of that under Rule 12 of the Rules of 2003, both Subject Teachers, as well as Graduate Teachers, are eligible to participate in the selection process for the post of Principal. From the said point of view also, it cannot be said that for the post of Principal, the Member Secretary can only be a Subject Teacher and not a Graduate Assistant Teacher. 18. The second submission of Mr. From the said point of view also, it cannot be said that for the post of Principal, the Member Secretary can only be a Subject Teacher and not a Graduate Assistant Teacher. 18. The second submission of Mr. N. Dhar, learned counsel for the petitioner is that the respondent No.6 being a teacher from another school, cannot be allowed to participate in the selection process for the post of Principal inasmuch as, under Rule 12(2)(5) of the Rules of 2003 as well as under Rule 13 thereof, the administrative ability and leadership skill of the respective candidate are to be determined and therefore, in the event a candidate is from another school, the School Selection Committee will not have appropriate materials before it to determine the administrative ability and leadership skill. 19. In this respect, this Court takes note of the order dated 23.06.2016 of the Director of Secondary Education, Assam, by which the criteria upon which the leadership skill and the administrative ability are to be determined has been provided. Leadership skill shall depend upon the result of the HSLC/AHM/HSSLC examination of the current year and the previous years of the school, in which the concerned candidate was working and for the purpose, the candidate would be required to produce the result sheet duly certified by the concerned Principal. For the purpose of administrative ability, the same be based upon any award/honours received by the candidate or the school, in academic, sports or social, cultural events. All such events carries its own certificates and the assessment by the School Selection Committee on the administrative ability would be based on such certificates and therefore, it may not be necessary that the School Selection Committee would require to have a personal knowledge of the candidate, so as to assess the leadership skill and the administrative ability. 20. From the said point of view, the second contention of the learned counsel for the petitioner that the respondent No.6 being a candidate from another school, would be ineligible to participate inasmuch as, the school Selection Committee will not have adequate materials to determine his administrative ability and leadership skill, is also found to be unacceptable. 21. 20. From the said point of view, the second contention of the learned counsel for the petitioner that the respondent No.6 being a candidate from another school, would be ineligible to participate inasmuch as, the school Selection Committee will not have adequate materials to determine his administrative ability and leadership skill, is also found to be unacceptable. 21. The aforesaid conclusion also takes care of the third contention of the learned counsel for the petitioner that where the petitioner had two certificates given by the Principal of the school, where he is participating, the respondent No.6 does not have any such certificate. 22. In this respect, the submission of Mr. R.P. Kakati, learned counsel for the respondent No.6 is taken note of that the respondent No.6 had been issued with certain national level certificates in the field of sports and other events. As the order dated 23.06.2016 of the Director provides that administrative ability can also be based upon such national level certificates in sports and other events, this Court does not find any reason as to why such certificates of the respondent No.6 cannot be the basis to evaluate his administrative ability. 23. As regards the fourth submission of Mr. N. Dhar, learned counsel for the petitioner that there are criminal proceedings pending against the respondent No.6, this Court has already taken note of that by the Judgment and Order dated 17.12.2017 in GR Case No.180/2011 in the Court of learned Chief Judicial Magistrate, Karimganj, the respondent No.6 had been honourably acquitted of all the charges leveled against him on the ground of there being no such evidence available. 24. In view of the above, as the respondent No.6 was already acquitted prior to the selection process, there cannot be any reason as to why the respondent No.6 can now be held to be ineligible to participate in the selection process for the post of Principal. It was also stated that some civil proceeding was also pending against the respondent No.6. But upon examination, it is noticed that the civil proceeding also relates to the same subject matter as that of the criminal proceeding, which related to some land dispute with his neighbor and in the civil proceeding also, there was an amicable settlement between the parties resulting in the proceeding coming to an end. 25. Further submission of Mr. But upon examination, it is noticed that the civil proceeding also relates to the same subject matter as that of the criminal proceeding, which related to some land dispute with his neighbor and in the civil proceeding also, there was an amicable settlement between the parties resulting in the proceeding coming to an end. 25. Further submission of Mr. Dhar, learned counsel for the petitioner that Rule 16 of the Rules of 2003 provides for the requirement of an educationist in the School Selection Committee, it is taken note of that the provisions of Rule-16 relates to the State Selection Committee and not of the School Selection Committee. From the said point of view also, this Court does not find any infirmity in the constitution of the School Selection Committee as per the resolution of the Managing Committee dated 16.11.2016. 26. Mr. Dhar, learned counsel for the petitioner also submits that as per the provisions of paragraph-38 of the decision of the Full Bench of this Court rendered in Jamaluddin Ahmed and others , it is provided that a candidate from another school is ineligible to participate for the post of Principal of a given school. 27. This Court has gone through the provisions of paragraph-38 of the judgment and order rendered in Jamaluddin Ahmed and others, but is unable to find any provision therein, which provides that a candidate from another school is ineligible to participate in the selection process for the post of Principal of a given school. 28. Mr. Dhar, learned counsel for the petitioner also brings it to the notice of the Court that the petitioner had submitted two representations dated 16.01.2017 and 19.01.2017 before the Director of Secondary Education, Assam ventilating her grievance that the constitution of the School Selection Committee was not in order. 29. As the grievance was raised by the petitioner, she at least has a legal right that her representation be given a consideration and such stand of the petitioner cannot be rejected outright. 30. Accordingly, this Court directs that the Director of Secondary Education, Assam to give a consideration to the grievance raised by the petitioner in the said two representations and pass a reasoned order thereon. 30. Accordingly, this Court directs that the Director of Secondary Education, Assam to give a consideration to the grievance raised by the petitioner in the said two representations and pass a reasoned order thereon. But, as the grievance raised by the petitioner is substantially covered by the adjudication in this order, the Director while passing a reasoned order, shall also give a due consideration to the findings and conclusions arrived at by this Court in this order. 31. The learned counsel for the petitioner also raises an issue that before appointing the respondent No.6, no police verification was done. To that extent, the authorities shall examine the matter and if it is deemed that police verification is required for the purpose of appointment of a Principal of a school, the authorities may do the needful. 32. In view of the above, this Court does not find any merit in the writ petition and the same stands dismissed.