Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 208 (GAU)

SUNIL CH. DEVNATH v. STATE OF ASSAM

2018-02-02

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. N. Borah, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Secondary Education Department as well as Ms. M. Kemprai, learned standing counsel KAAC including the authorities in the Education Department under the KAAC. 2. Although the office note dated 13.08.2014 indicates that notice has deemed to have been served on the respondent No.4, but none appears for the said respondent for the last three years. In such view of the matter, this Court deems it appropriate that the matter be proceeded in the absence of the respondent No.4. 3. The petitioner was initially appointed as an Assistant Teacher in the C.C.I. M.E. School on 01.05.1982 and his service was regularized on 01.02.1985. Thereafter, he was transferred to Khatkhati M.E. School as per the order dated 23.03.1988 of the Inspector of School, Karbi Anglong District Circle, Diphu. Being the senior most teacher in the said M.E. school, the petitioner was promoted as the Headmaster as per the order dated 28.05.2009. 4. By an order dated 09.08.2011, the Khatkhati, M.E. School was amalgamated with the Khatkhati High School. The provision as to who would be the Assistant Headmaster in an amalgamated school is provided under Rule 14 (3) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (in short Rule of 2003) . As per the said provision, in case of amalgamated High School, the Headmaster/Headmistress of the M.E. School is eligible for selection/appointment as Assistant Headmaster of the amalgamated High School, subject to the condition that the incumbents have atleast five years of teaching experience in the M.E. school if he is the founder Headmaster and or otherwise, the incumbent should have atleast 10 years of teaching experience in the M.E. school in the event he is not the founder Headmaster. In the instant case admittedly, the petitioner was not the founder Headmaster and therefore, as per Rule 14 (3) of the 2003 Rules, he requires to satisfy the eligibility condition that he has ten years of teaching experience in the M.E. school in order to be selected/appointed as the Assistant Headmaster of the amalgamated High School. In the instant case admittedly, the petitioner was not the founder Headmaster and therefore, as per Rule 14 (3) of the 2003 Rules, he requires to satisfy the eligibility condition that he has ten years of teaching experience in the M.E. school in order to be selected/appointed as the Assistant Headmaster of the amalgamated High School. As the petitioner was initially appointed and regularized as an Assistant Teacher in the C.C.I M.E. school on 01.02.1985 and thereafter transferred as an Assistant Teacher to Khatkhati M.E. School on 23.03.1988, therefore, in any view of the matter, the period of teaching experience of the petitioner in the M.E. School would have to be counted atleast from 23.03.1988, if not from 01.02.1985. Consequently, in the year 2011, when the Khatkhati M.E. School was amalgamated with Khatkhati High School, the petitioner had the teaching experience of 10 years. Accordingly, under Rule 14 (3), the petitioner is eligible to be selected/appointed as the Assistant Headmaster of the amalgamated Khatkhati High School by virtue of being the Headmaster of the pre amalgamated Khatkhati M.E. School. 5. In the premises of the aforesaid provision of law, when clause 7 of the order of the Inspector of School, Karbi Anglong district dated 09.08.2011 is noticed, it is seen that the Inspector had imposed a condition in the amalgamation order that the graduate Headmaster of M.E. school will be the Assistant Headmaster of the amalgamated High School. 6. In view of the provision of 14 (3) of the Rule of 2003, the said provision incorporated by the Inspector is found to be inconflict with the requirement of Rule 14 (3) and as such, the said clause is declared to be unsustainable and cannot be the basis for any authority to act upon any further. 7. Apparently, by following the requirement of clause 7 of the aforesaid order of amalgamation dated 09.08.2011, the respondent No.4 was shown as the senior most Assistant Teacher of the school and was allowed to function as the Assistant Headmaster as per the order of 31.10.2013 of the Inspector of School, Karbi Anglong. 7. Apparently, by following the requirement of clause 7 of the aforesaid order of amalgamation dated 09.08.2011, the respondent No.4 was shown as the senior most Assistant Teacher of the school and was allowed to function as the Assistant Headmaster as per the order of 31.10.2013 of the Inspector of School, Karbi Anglong. The said order of 31.10.2013 has been assailed in this writ petition on the ground that although under Rule 14 (3) of the 2003 Rule, it is the petitioner who ought to have been the Assistant Headmaster, but the respondent authorities on the other hand have allowed the respondent No.4 to be the Assistant Headmaster. 8. The authorities in the KAAC has filed affidavit-in-opposition dated 26.03.2005 wherein in paragraph-5, it has been stated that the petitioner had joined in the Khatkhati M.E. School as a Hindi Teacher (junior) in the intermediate cadre and he was not a graduate at that relevant point of time. Subsequently, he became a graduate in the year 2012 and was allowed to draw the graduate scale of pay w.e.f. 01.04.2009. Accordingly, the authorities in the Karbi Anglong district takes a stand that as the petitioner was a graduate teacher w.e.f. 2009, therefore, he was not allowed to be the Assistant Teacher of the amalgamated High School. Accordingly, it is the stand that on the other hand as the respondent No.4 was found to be a graduate teacher since his date of initial appointment in the Khatkhati High School, he would be senior to the petitioner as a graduate teacher. 9. The said stand of the respondent KAAC would otherwise have been applicable in a case of determining the inter-se seniority between the petitioner and the respondent No.4 in the cadre of graduate teacher for the purpose of determining as to who amongst them would be the Assistant Headmaster of the school. But in the instant case, it is not a case where there is a requirement of determining as to who would be the Assistant Teacher of the school depending upon the inter-se seniority between the two rival claimants. But in the instant case, it is not a case where there is a requirement of determining as to who would be the Assistant Teacher of the school depending upon the inter-se seniority between the two rival claimants. As already indicated, the requirement for determination in the instant case would be as to whether the petitioner by virtue of being the Headmaster of the pre amalgamated Khatkhati M.E. School has a legal right to be selected and appointed as the Assistant Headmaster of the amalgamated Khatkhati High School under Rule 14 (b) of 2003 rules. 10. As already indicated above, the selection and appointment of Assistant Headmaster in an amalgamated High School at the stage when the amalgamation takes effect is a special provision where the general law as regards the inter-se seniority amongst the claimants as a graduate teacher would not be applicable. The law clearly provides that whosoever is the Headmaster of the M.E. School at the time of amalgamation, if satisfies the requirement of having 10 years teaching experience would be the Assistant Headmaster in the amalgamated High School. The aforesaid being the provision of law, which is applicable in this case, this Court is of the considered view that the petitioner has a legal right to be appointed as an Assistant Headmaster of the amalgamated Khatkhati High School. Accordingly, the order dated 30.10.2013 allowing the respondent No.4 to be the Assistant Headmaster of the school is interfered and set aside and the Inspector of School, Karbi Anglong district shall take a fresh decision on the appointment of the petitioner as the Assistant Headmaster in the manner as indicated hereinabove and by strictly by following the provision of Rule 14 (3) of 2003 Rule. 11. The aforesaid exercise shall be completed within a period of two months from the date of receipt of the certified copy of the order. Writ petition stands disposed of. Interim order, if any, passed earlier stands vacated.