Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 558 (GAU)

Nurul Huda Choudhury v. State of Assam

2018-03-28

M.R.PATHAK

body2018
JUDGMENT : M.R. Pathak, J. 1. Heard Mr. N. Baruah, learned counsel appearing on behalf of Ms. B. Devi, learned counsel for the petitioner and Mr. A. Deka, learned Standing counsel, Education Department for the respondent Nos. 1 to 3. It is stated by the petitioner that the Inspector of Schools, Hailakandi District Circle, Hailakandi by his order dated 30.01.1996 appointed him as a Grade-IV employee in Nimaichandpur Higher Secondary School, Jaffirbond, District-Hailakandi, a provincialised School, in a post that fell vacant due to up-gradation of one Sri Angouton Singha, Grade-IV employee of said school, temporarily for a period of three months or till regular appointment is made through selection whichever is earlier. By subsequent order, the Inspector of Schools, Hailakandi extended the service of the petitioner as a Grade-IV employee in said Higher Secondary School. 2. Later, in terms of the communication of the State Government in the Secondary Education Department dated 10.08.2000 and WT Message dated 24.01.2001, the Inspector of Schools, Hailakandi by his order dated 26.02.2009 regularised the service of the petitioner as Grade-IV employee in Nimaichandpur HS School itself with effect from his date of joining. By another order of even date, i.e., 26.02.2009, the Inspector of Schools, Hailakandi confirmed the service of the petitioner as Grade-IV employee in said Nimaichandpur HS School. 3. The petitioner, in the meanwhile obtained his Graduation and submitted an application before the Inspector of Schools, Hailakandi to promote him to the post of Lower Division Assistant in Purbokitarbond High School, Amala, a provincialised School, that was lying vacant due to retirement of one Sri Ranjit Singha, Grade-III, employee of said school and the Inspector of Schools, Hailakandi on 20.01.2011 forwarded the said application of the petitioner to the Director of Secondary Education, Assam for his necessary action. 4. Since, nothing progressed from the end of the Director of Secondary Education, Assam; the petitioner has preferred this writ petition for a direction to the respondents in the Secondary Education Department of the State to promote him from the post of Grade-IV to Grade-III post either at Nimaichandpur Higher Secondary School, Hailakandi where he is serving as a Grade-IV employee or at Purbokitarbond High School, Amala, where a post of Grade-III is lying vacant or any other vacant post of Grade-III available in other provincialised Secondary Schools in the District of Hailakandi. 5. 5. In this case, while issuing notice to the respondents on 20.01.2014, the Court observed that pendency of this writ petition shall not be a bar against the respondent authorities to consider the case of the petitioner in accordance with law. 6. The Director of Secondary Education (DSE), Assam respondent No. 2 has filed an affidavit in the matter on 28.08.2014 to which the petitioner has filed his reply. 7. The petitioner in his said reply filed on 9.1.2015 to the affidavit of the DSE, Assam respondent No. 2 annexed a copy of the judgment and order of this Court dated 19.10.01 passed in WP(C) No. 289/1999 and other connected cases, wherein the petitioners of those cases, non-teaching staff of provincialised High Schools of the State prayed for up-gradation of their services from Grade-IV posts to Grade-III posts and the Court after considering the provisions of the Assam Ministerial District Establishment Service Rules, 1967, by said order dated 19.10.2001 directed the respondents therein, i.e., the Secondary Education Department to consider the case of the petitioners of those writ petitions for up-gradation, observing that such up-gradation shall be considered only if they were otherwise entitled to be considered according to said 1967 Rules. 8. The petitioner is serving as a Grade-IV employee in Nimaichandpur Higher Secondary School, in the District of Hailakandi, a provincialised Higher Secondary School of the State and though in terms of the Government WT Message dated 24.01.2001, the Inspector of Schools, Hailakandi by his order dated 26.02.2009 regularised the service of the petitioner as Grade-IV employee in said Nimaichandpur HS School and also confirmed his service, but from the appointment order of the petitioner dated 30.01.1996 issued by the Inspector of Schools, Hailakandi (Annexure-A to the writ petition), it can be seen that the petitioner, an outsider, was appointed temporarily in said Nimaichandpur HS School as a Grade-IV employee since one Grade-IV employee of said School was upgraded and petitioner's such appointment was for a period of 3 (three) months only from his date of joining or till regular appointment is made through selection in said Grade-IV post, whichever is earlier. Said appointment of the petitioner clearly reflects that it was made without any advertisement and selection in violation of the Constitutional provisions with regard to appointment in any public post. 9. Said appointment of the petitioner clearly reflects that it was made without any advertisement and selection in violation of the Constitutional provisions with regard to appointment in any public post. 9. It is well settled that any appointment/recruitment to any public post/Government sanctioned post have to be made only by way of proper recruitment rules, after advertisement and selection and if made without following the same, it amounts to violation of the provisions of the Articles 14 and 16 of the Constitution of India. It is also not the case of the petitioner that he was appointed as Grade-IV, after due selection process. Moreover, from the affidavit of the petitioner filed in this case, it is also reflected that he was not even 18 (eighteen) years old at the time of his initial appointment as Grade-IV on 30.1.96, a mandatory requirement for appointment to any public post. 10. The State Government in the Secondary Education Department brought into force the Assam Secondary Education (Provincialised) Service Rules, 2003 w.e.f. 12.08.2003, a statutory recruitment Rules under Article 309 of the Constitution of India that regulates the recruitment and condition of service of persons appointed to the Assam Secondary Education (Provincialised) Service, including Grade-III and Grade-IV posts in provincialised Secondary Schools. Prior to said 2003 Rules, there was no such recruitment Rules regulating the appointment and conditions of service of Grade- III and IV in provincialised Secondary Schools and that time such recruitments were made either under the Assam Ministerial District Establishment Service Rules, 1967 or The Assam Public Services (Direct Recruitment to Class HI and Class IV Posts) Rules, 1997, a statutory Rule under Article 309 of the Constitution regulating direct recruitment to Class III and Class IV posts in the offices of the Heads of Department, the Regional Office, District Offices, Divisional Offices and below District Level Offices, where there are no Service Rules/Executive Orders regulating the recruitment and conditions of service and are not within the purview of the Assam Public Service Commission. 11. Rule 4 of the Assam Secondary Education (Provincialised) Service Rules, 2003 provides for 'Recruitment to the post of Grade-III and Grade-IV in such provincialised secondary schools of the State and it clearly reflects that recruitment to such Grade-III and Grade-IV post in the provincialised Secondary Schools of the State are to be made by direct recruitment only. 11. Rule 4 of the Assam Secondary Education (Provincialised) Service Rules, 2003 provides for 'Recruitment to the post of Grade-III and Grade-IV in such provincialised secondary schools of the State and it clearly reflects that recruitment to such Grade-III and Grade-IV post in the provincialised Secondary Schools of the State are to be made by direct recruitment only. Said 2003 statutory recruitment Rules, does not provide for any other mode of recruitment to the post of Grade-III and Grade-IV in provincialised Secondary Schools, except the process of direct recruitment, which are to be made after making proper advertisement and selection as prescribed in Rule 4 of said 2003 Rules. 12. The Hon'ble Supreme Court in the case of Union of India v. Kirloskar Pneumatic Co. Ltd., reported in (1996) 4 SCC 453 have held that - "The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law." 13. In the case of Manish Goel v. Rohini Goel, reported in (2010) 4 SCC 393 the Hon'ble Apex Court have held that - "Generally, no Court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law." 14. As such, this Writ Court cannot direct the respondents in the Secondary Education Department of the State either to promote or to consider promotion of the petitioner from the post of Grade-IV to Grade-III post of Lower Division Assistant/Junior Assistant in any provincialised Secondary Schools of the State violating the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003; a statutory recruitment Rules under Article 309 of the Constitution of India. 15. For the reasons above, the prayer of the petitioner for his promotion from Grade-IV post to the Grade-III post in any provincialised Secondary Schools in the District of Hailakandi, stands rejected, being not entitled under the law. Accordingly, this writ petition, being devoid of merit stands dismissed.