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2018 DIGILAW 924 (GAU)

Padmawati Bora v. State of Assam

2018-06-13

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : Michael Zothankhuma, J. 1. Heard Mr. S.K. Roy, learned counsel for the petitioner. Also heard Mr. A. Deka, learned Standing Counsel, Education Department and Mr. P.J. Saikia, learned counsel for the respondent No. 5. 2. The matter pertains to appointment of the Headmaster of Kushal Konwar Balya Bhawan High School in Golaghat district. The petitioner is aggrieved by the selection of the respondent No. 5 for promotion to the post of Headmaster of the school. 3. The challenge herein is to the selection of the respondent No. 5 for the post of Headmaster pursuant to the Advertisement dated 14.5.2015. The petitioner's case is that the respondent No. 5 does not have the eligibility criteria to be promoted to the post of Headmaster as the respondent No. 5 is junior to the petitioner in the graduate scale of pay. The petitioner's counsel submits that the petitioner being a graduate, having B.Ed. degree, petitioner was appointed as a teacher of the school on 24.1.1988. Thereafter, the school was provincialised on 19.11.1991 and the petitioner was given intermediate scale of pay w.e.f. 19.11.1991. The petitioner thereafter received graduate scale of pay w.e.f. 30.12.1993. 4. The respondent No. 5, who was B.A. (Hindi), was appointed in the said school on 22.3.1982 as a Hindi Teacher and the respondent No. 5 started getting graduate scale of pay from the date when the school was provincialised i.e. 19.11.1991. 5. The petitioner and the respondent No. 5 took part in the selection process for appointment to the post of Headmaster pursuant to the Advertisement dated 14.5.2015, whereupon the Selection Committee recommended the name of the respondent No. 5 for promotion to the post of Headmaster. 6. The petitioner's counsel submits that as per Schedule III (a) of the Assam Secondary Education (Provincialised) Service Rules, 2003, hereinafter referred to as 2003 Rules, the cadre of Headmaster is a Class-II post, the cadre of Assistant Headmaster is a Class-III post and Graduate Teacher/Hindi Teacher are Class-IV post. He also submits that the pay scale of Assistant Headmaster/Headmistress is higher than the pay scale of graduate teacher/ Hindi Teacher. He also submits that the pay scale of Assistant Headmaster/Headmistress is higher than the pay scale of graduate teacher/ Hindi Teacher. The petitioner, being an Assistant Headmistress, as she had been appointed to the said post on 29.2.2012 vis-a-vis respondent No. 5, who was a Hindi Teacher having graduate scale of pay, the Selection Committee committed an illegality in recommending the respondent No. 5 for promotion to the post of Headmaster, as it amounted to giving the respondent No. 5 double promotion by jumping over the post/cadre of Assistant Headmaster/Headmistress. The petitioner's counsel also submits that the Advertisement dated 14.5.2015 does not seem to have been made for filling up the post of Headmaster in Kushal Konwar Balya Bhawan High School, Golaghat, inasmuch as, the term and condition No. E(a) of the advertisement dated 14.5.2015 provides for filling up the post of Headmaster of a school, when there is no Headmaster or Assistant Headmaster/ Headmistress of the school. However, in the present school, the petitioner being an existing Assistant Headmaster, there could not have been any selection process for the post of Headmaster. The terms and condition Nos. B, D and E of the advertisement dated 14.5.2015 states as follows: "(B) How the post shall be filled-up: The posts shall be filled by promotion from the school-wise seniority list of Assistant Teachers and selection shall be based upon seniority and satisfactory Annual Confidential Report for 3 (three) consecutive years. (D) Teaching Experience: (a) Minimum 10 years as Graduate Teacher for the post of Headmaster/Headmistress/ Superintendent. (b) Minimum 7 years as Graduate Teacher for the post of Assistant Headmaster/Assistant Headmistress/Assistant Superintendent. (E) Who can Apply: (a) Eligible teachers from such High Schools/High Madras as where there is no regularly selected and posted Headmaster/Headmistress/Superintendent and Assistant Headmaster/ Assistant Headmistress/Assistant Superintendent. (b) Eligible teachers from such High Schools/High Madras as where there is regularly selected and posted Headmaster/Headmistress/Superintendent and Assistant Headmaster/ Assistant Headmistress/Assistant Superintendent but the incumbents will retire by 31.03.2016. (c) Eligible teachers from such newly provincialised High Schools/High Madrassas "Where there is no Headmaster/Superintendent, Assistant Headmaster/Assistant Superintendent post provincialised on regular basis i.e. where there is in-charge Headmaster/Superintendent." 7. Mr. (c) Eligible teachers from such newly provincialised High Schools/High Madrassas "Where there is no Headmaster/Superintendent, Assistant Headmaster/Assistant Superintendent post provincialised on regular basis i.e. where there is in-charge Headmaster/Superintendent." 7. Mr. A Deka, learned Standing Counsel, Secondary Education Department submits that as per 2003 Rules, the petitioner and the respondent No. 5 were eligible to apply for the post of Principal and accordingly, the petitioner had also taken part in the selection process. He also submits that there is no bar for a teacher who joined in the graduate scale of pay to take part in the selection process for promotion to the post of Headmaster. In fact, respondent No. 5 is senior to the petitioner as a teacher in the graduate scale of pay, as the respondent No. 5 had been given graduate scale of pay w.e.f. 19.1.1991, whereas the petitioner was given graduate scale of pay only from 30.12.1993. 8. Mr. P.J. Saikia, counsel for respondent No. 5 submits that the respondent No. 5 could not take part in the selection process for the post of Assistant Headmaster/Headmistress earlier, when the petitioner had taken part in the same, as the respondent No. 5 did not have the required B.Ed. degree qualification at the relevant point of time. The respondent No. 5 has now acquired the said B.Ed. degree and accordingly, took part in the selection process for the post of Headmaster, as the same is allowed as per 2003 Rules. 9. I have heard the counsels for the parties. 10. The first challenge made by the petitioner with regard to selection of the respondent No. 5 as Headmaster is that the Advertisement dated 14.5.2015 could not have allowed for selecting a candidate for promotion to the post of Headmaster in the said school. This Court finds that the petitioner having taken part in the selection process for promotion to the post of Headmaster, the petitioner cannot be now allowed to turn around and challenge the selection process, by stating that no promotion could be made to the post of Headmaster when there is a Assistant Headmaster/Headmistress of the school. Besides, the term and condition No. E of the advertisement dated 14.5.2015 provides for selection of a Headmaster or Assistant Headmaster, when there is no regularly selected and posted Headmaster/Assistant Headmaster of the school. Besides, the term and condition No. E of the advertisement dated 14.5.2015 provides for selection of a Headmaster or Assistant Headmaster, when there is no regularly selected and posted Headmaster/Assistant Headmaster of the school. The interpretation of the petitioner to the said provision is not correct or contemplated at all. Further, the Apex Court in Ramesh Chandra Shah vs. Anil Joshi, (2013) 11 SCC 309 has held that a person who consciously takes part in the process of selection cannot thereafter turn around and question the method of selection and its outcome. 11. Rule 2(n), 14(2), 14(4), 24(2) and 24(4) of the 2003 Rules state as follows: "2(n) "Graduate Teacher" means the category of Assistant Teacher in High/Higher Secondary/Higher Secondary and Multipurpose/High Madrassa Schools for whose appointment the minimum qualification prescribed is a Graduate degree in Arts, Science or Commerce including Demonstrators in Higher Secondary/Higher Secondary and Multipurpose School ["which shall also include the Graduate Classical Teacher of Hindi, Sanskrit, Arabic, Persian, Assamese, Board etc. for whose appointment a Graduate degree from any recognised University with the concerned language as a subject is necessary"] 14(2) The post of Head Master/Head Mistress and Superintendent shall be filled up by promotion from the School-wise seniority list on the recommendation of the State Selection Board. The selection of Head Master/Head Mistress/Superintendent shall be based upon seniority and satisfactory Annual Confidential Report for 3 (three) consecutive years. The seniority shall be determined from the date of receiving graduate scale as per Rule 24(2). 14(4) Eligibility for the post of Head Master/Head Mistress/Superintendent/Assistant Head Master/Assistant Head Mistress/Assistant Superintendent of High/High Madrassa School as the case may be:- (i) The minimum qualification for the post of Head Master/Head Mistress/Superintendent/ Assistant Head Master/Assistant Head Mistress/Assistant Superintendent shall be graduate in Arts, Science or Commerce with B.T. or B.Ed. degree. (ii) He/She must possess at least 10 years of teaching experience as Graduate Teacher. (iii) He/She must possess at least seven years of teaching experience as Graduate teacher to be an Assistant Head Master/Head Mistress/Assistant Superintendent. 24(2) If a member of the service in a cadre fails to join the appointment within the initial 15 days of receipt of the order of appointment or within the extended period as mentioned in rule 19, but joins later, his seniority shall be determined in accordance with the date of joining. 24(2) If a member of the service in a cadre fails to join the appointment within the initial 15 days of receipt of the order of appointment or within the extended period as mentioned in rule 19, but joins later, his seniority shall be determined in accordance with the date of joining. 24(4) The seniority of the Graduate Classical Teacher of Hindi, Sanskrit, Arabic, Persian, Assamese, Board etc. having degree qualification from any recognized University shall be counted at par with other general Graduate Teachers for consideration of promotion to the next higher post: Provided that the seniority of such Classical Teachers in the Graduate posts shall be counted from the date of his acquiring the degree qualification from recognized University. A perusal of the Rule 14(4) shows that a candidate, to be eligible for promotion to the post of Headmaster, has to be a graduate in Arts/Science/Commerce with B.T. or B.Ed. degree. The candidate must also have 10 years of teaching experience as a Graduate Teacher." 12. In the present case, it is not in dispute between the parties that the petitioner and the respondent No. 5, both have the eligibility criteria for promotion to the post of Headmaster/ Headmistress as per Rule 14(4) of the 2003 Rules. Rule 14(2) of the 2003 Rules states that the post of Headmaster shall be filled up by promotion from the school-wise seniority list. The Selection Board shall accordingly make its recommendation based upon the seniority and satisfactory Annual Confidential Report for three consecutive years. The seniority has to be determined from the date of receiving graduate scale of pay as per Rule 24(2) of the 2003 Rules. 13. In respect of the present case, the petitioner had received graduate scale of pay on 30.12.1993 while the respondent No. 5 was given graduate scale of pay w.e.f. 19.11.1991. Thus, as per the Rule 14(2) of the 2003 Rules, the respondent No. 5 is senior to the petitioner, as he has been receiving graduate scale of pay earlier than the petitioner. 14. As per Rule 2(n) of the 2003 Rules, a Graduate Teacher of Hindi, which is the post of the respondent No. 5, is also included to mean a Graduate Teacher. 14. As per Rule 2(n) of the 2003 Rules, a Graduate Teacher of Hindi, which is the post of the respondent No. 5, is also included to mean a Graduate Teacher. With regard to the submission made by the counsel for the petitioner that selection of the respondent No. 5 as Headmaster by the Selection Committee, would amount to giving him double promotion as there is a post of Assistant Headmaster/Headmistress in between the post of Graduate Teacher and the post of Headmaster, this Court finds that as Rule 14 of the 2003 Rules has allowed for a Graduate teacher to be promoted to the post of Headmaster, the issue sought to be raised by the petitioner cannot be gone into as the 2003 Rules are not under challenge. If promotion of a Graduate teacher, directly to the post of Headmaster, is allowed as per the Rules, this Court cannot go into the vires of Rule 14, without there being a challenge to the same and the same will have to be considered to be valid rule. This court also finds that while Rule 24(4) of the 2003 Rules provides for counting the seniority of Graduate Classical teacher of Hindi at par with general Graduate teacher for consideration of promotion to the next higher post, Rule 24(4) does not bar or over-ride Rule 2(n) and Rule 14 of the 2003 Rules, by which the teachers having the graduate scale of pay, are eligible to be considered for promotion to the post of Headmaster. 15. In view of the reasons stated above, this Court does not find any merit in the writ petitions. Accordingly, the writ petitions stand dismissed. Interim order passed earlier stands vacated.