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2018 DIGILAW 948 (GAU)

Dipak Chandra Das v. State of Assam

2018-06-18

M.R.PATHAK

body2018
ORDER : M.R. Pathak, J. 1. Mr. A. Sharif, learned counsel for the petitioner and Mr. A. Deka, learned Standing counsel, Education Department for the respondent Nos. 1 to 3 were heard earlier. It is seen that notice on the respondent No. 4 was sent by Regd. Post with A/D on 15.06.2015. But neither the A/D card nor the un-served notice have been received back by the Registry of this Court. 2. But from the postal report, it is seen that the Principal of the concerned School has received the said Notice on 19.06.2017 itself. Considering the same, vide order dated 18.09.2017, this Court earlier adjourned the matter for appearance of the respondent No. 4. But inspite of such time granted by the Court, the said respondent No. 4 did not appear in the matter and as such, the matter preceded ex-parte against the said authority. 3. The petitioner herein claims that he has been serving as a Grade-IV employee in Doboka Higher Secondary School in the District of Nagaon, a provincialised Higher Secondary School in the State and his service as Grade-IV employee was confirmed by the respondents in the Education Department by an order issued on 20.10.2007. 4. Petitioner submitted that he possesses all the requisite eligibility for his up-gradation from the post of Grade-IV to the post of Grade-III in the said school or any other provincialised Secondary School. The petitioner has also submitted that for his up-gradation from Grade-IV to Grade-III post, he submitted representation, which is yet to be disposed of. 5. By submitting a copy of the judgment dated 10.02.1995 of the Court passed in WP(C) No. 500/1999 in the case of Punya Hazarika Vs. State of Assam & Ors., and the consequential order dated 17.02.2011 is sued by the Inspector of Schools, Morigaon District Circle, Morigaon, the petitioner stated that the said Inspector appointed said Punya Hazarika as a Lower Division Assistant in Auguri High School. 6. The petitioner herein has also placed a copy of the order dated 11.07.1997 to show that the Inspector of Schools, Nagaon upgraded one Md. Nurul Haque as a Lower Division Assistant in Abdul Hasib Higher Secondary School in the district of Nagaon. 6. The petitioner herein has also placed a copy of the order dated 11.07.1997 to show that the Inspector of Schools, Nagaon upgraded one Md. Nurul Haque as a Lower Division Assistant in Abdul Hasib Higher Secondary School in the district of Nagaon. In that regard the petitioner has also placed copy of the orders dated 05.12.2006, 01.12.2010 and 08.12.2010 issued by the Inspector of Schools, Guwahati and Nagaon respectively to show that some other Grade-IV employees of provincialised Secondary Schools, similarly placed like him, were upgraded as Junior Assistant/Lower Division Assistant to the post of Grade-III, but the respondents did not consider his prayer for his up-gradation to the next higher grade, i.e. to the post of Junior Assistant/Lower Division Assistant in Grade-III nor disposed of his representation submitted earlier for the said purpose. 7. Hence, this petition by the petitioner praying for necessary direction to the respondents herein to up-grade him to Grade-III post in provincialised secondary Schools. 8. The Director of Secondary Education, Assam, the respondent No. 2 herein has filed an affidavit in the matter stating that as the service conditions of Grade-III and Grade-IV of provincialised High and Higher Secondary Schools of the State are governed by the Assam Secondary Education (Provincialization) Service Rules, 2003 and therefore, in violation of the said Rule, such Grade-IV incumbents serving in Secondary Provincialised Schools cannot be upgraded to the post of Grade-III. 9. The petitioner in his affidavit-in-reply to the affidavit of the said respondent No. 2, Director of Secondary Education, Assam submitted that the said 2003 Rules, as well as Rule 10(3) of the Assam Directorate Establishment (Ministerial) Service Rules, 1978. 10. According to the petitioner, as he has joined as Grade-IV employee in Daboka Higher Secondary Schools, Nagaon on 19.02.1999 and is still serving in the said capacity and being eligible, his service should be upgraded to the post of Grade-III as submitted here in above and as considered for other such Grade-IV employees provincialised Secondary schools of the State. 11. According to the petitioner, as he has joined as Grade-IV employee in Daboka Higher Secondary Schools, Nagaon on 19.02.1999 and is still serving in the said capacity and being eligible, his service should be upgraded to the post of Grade-III as submitted here in above and as considered for other such Grade-IV employees provincialised Secondary schools of the State. 11. The issue involved in this writ petition is whether any writ, including the writ of Mandamus and/or Certiorari can be issued to the respondents herein to up-grade/promote the petitioner from the Cadre of Grade-IV employee in Class-IV post to the Cadre of Junior Assistant/Lower Division Assistant in Class-III post in provincialised Secondary Schools of the State, as some other similarly placed Grade-IV employees as that of the petitioner has already been up-graded as Junior Assistant/Lower Division Assistant in secondary schools in terms of the orders passed earlier by the Court as well as on the basis of some orders by the respondents in the Secondary Education Department. 12. It is seen that to regulate the recruitment and conditions of service of the persons appointed to the Assam Secondary Education (Provincialised) Service that includes the teaching and non teaching staff of provincialised High School, Higher Secondary School and Higher Secondary & Multipurpose Schools of the State, including the posts in Grade-III and Grade-IV in such provincialised Secondary Schools, the State Government has been brought into force the Assam Secondary Education (Provincialization) Service Rules, 2003, a Statutory Rule under Article 309 of the Constitution of India, that came into force w.e.f. 12.08.2003, since the date, the same was published in the State Gazette. 13. It is also seen that said 2003 Rule was amended later in the year 2012, which came into force w.e.f. 10.07.2012. 14. Rule 2 of said 2003 Rules relates to Definition clauses where Rule 2(s) of said 2003 Rules defines "Service" and it means the Assam Secondary Education (Provincialised) Service. Rule 2(w) of said 2003 Rules, defines "Member" and it means the member of the service and Rule 2(c) of said 2003 Rules defines "Appointment", which means assignment of service issued by the Appointing Authority to a person selected in accordance with the provisions of said 2003 Rules. 15. Rule 2(w) of said 2003 Rules, defines "Member" and it means the member of the service and Rule 2(c) of said 2003 Rules defines "Appointment", which means assignment of service issued by the Appointing Authority to a person selected in accordance with the provisions of said 2003 Rules. 15. Rule 3 of said 2003 Rules provides for Classes and Cadres of the employees of provincialised secondary Schools including both teaching and non-teaching staff wherein Sub-Rule 2 to Rule 3 of 2003 Rules provides as follows:- "Rule 3(2) - The non teaching staff in provincialised School shall consist of the following classes and cadres on the date of commencement of these rules, namely:- (a) Class-III:-It includes the cadres of- (i) Senior Assistant; (ii) Junior Assistant; (b) Class-IV:-It includes the cadres of- (i) Laboratory Bearer; (ii) Grade-IV." 16. Rule 4 of said 2003 Rules stipulates the method of recruitment to the Class-in post in the Cadre of Junior Assistant/Lower Division Assistant under Rule 3(2)(a)(ii) and in Class-IV posts in the Cadres of (i) Laboratory Bearer and (ii) Grade-TV under Rule 3(2)(b)i & ii) in the office of the provincialised High School, Higher Secondary School and Higher Secondary & Multipurpose Schools of the State, where such appointments are to be made directly by the appointing authority from the select list prepared by the Appointing Authority from the select list prepared by the School Selection Committee constituted as provided under Rule 8(c) of 2003 Rules on the basis of test and interview. 17. Moreover, Sub-Rule (3) of Rule 6 of said 2003 Rules provides that: "Each cadre in sub-Rules (2) of Rule 3 above shall form an independent cadre and members of any cadre shall have no claim for appointment at any cadre except in accordance with provisions of these rules." 18. 17. Moreover, Sub-Rule (3) of Rule 6 of said 2003 Rules provides that: "Each cadre in sub-Rules (2) of Rule 3 above shall form an independent cadre and members of any cadre shall have no claim for appointment at any cadre except in accordance with provisions of these rules." 18. It is also seen that the said 2003 statutory Rules of recruitment and conditions of service pertaining to the teaching and non-teaching staff of provincialised secondary schools of the State does not have any provisions for automatic up-gradation or promotion of non-teaching employees in such provincialised secondary schools, except to the Class-III post in the Cadre of Senior Assistant/Upper Division Assistant under Rule 3(2)(a)(i), where the said post of Senior Assistant are filled up from the Junior Assistants in each office of the provincialised secondary schools according to the district seniority having minimum five years of continuous experience in service and in the manner provided in the said Rules. 19. The relevant 'Repeal and Savings' provisions of said 2003 Rule is silent with regard to any such up-gradation from Grade-IV posts to Grade-III posts in provincialised Secondary Schools. 20. Though the petitioner herein claims that he is serving as a Grade-IV employee in Daboka provincialised Higher Secondary School and that by an order issued on 20.10.2007, the authority concerned confirmed his such Grade-IV service, but, he neither annexed any order or certificate to show that he is serving as a Grade-IV employee in said Doboka HS School nor annexed a copy of the order to show that his Grade-IV service in that school was confirmed on 20.10.2007. 21. Although the petitioner has submitted that his case should be considered as per the order of the Court dated 10.02.1999 passed in WP(C) No. 500/1999 in the case of Punya Hazarika, noted above, on the basis of which Sri Hazarika, a Grade-IV employee was upgraded/promoted to the post of Grade-III in the cadre of Lower Division Assistant/Junior Assistant on 17.02.2011, but said order of the Court dated 10.02.1999 was passed much before the 2003 Statutory Rules came into force. 22. 22. From the orders dated 11.7.1997, 5.12.2006, 8.7.10, 1.12.10 and 8.12.10 passed by the Inspectors of Schools of Nagaon District as well as Kamrup District before the Court, placed by the petitioner by which some of the Grade-IV employees of provincialised HS Schools have been upgraded to the post of Grade-III in the cadre of Junior Assistants/Lower Division Assistants in provincialised HS Schools of their respective Districts, but going through it is seen that the order dated 11.07.1997 was passed by the Inspector of Schools of Nagaon prior to the coming in to force of said 2003 Rules. Similarly, the order dated 08.07.2010 of the Inspector of Schools of Kamrup was because of the order of the Court in WP(C) No. 4574/2003, which was preferred in the year 2003. 23. It is well settled that in order to issue mandamus to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. In an appeal by special leave with regard to a case of appointment of Principal in Nalanda College, Bihar, where the appellant's writ petition under Article 226 of the Constitution was dismissed by Hon'ble Patna High Court, in an issue 'whether the appellant has a legal right to the performance of a legal duty by the respondents' a Constitution Bench of the Hon'ble Supreme Court in the case of Rai Shivendra Bahadur (Dr.) Vs. Governing Body of Nalanda College, reported in AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 have held that:- "In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance................ Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. It is therefore not necessary to go into any other question." 24. A Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Mani Subrat Jain Vs. It is therefore not necessary to go into any other question." 24. A Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Mani Subrat Jain Vs. State of Haryana, reported in (1977) 1 SCC 486 have held that:- "It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something." 25. In the case of Union of India Vs. International Trading Co., (2003) 5 SCC 437 the Hon'ble Supreme Court have held that:- "Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary." 26. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary." 26. It is settled that a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. No one has a right to claim performance of an unlawful or illegal act. The jurisdiction under Article 226 of our Constitution is not intended to perpetuate illegalities but to strike them. 27. In the case of State of Bihar Vs. Upendra Narayan Singh, reported in (2009) 5 SCC 65 , the Hon'ble Supreme Court has observed that- "By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order." 28. As seen from the above that under the Assam Secondary Education (Provincialization) Service Rules, 2003, a Statutory Rule under Article 309 of the Constitution of India, there is no provision for up-gradation or promotion from the cadre of Grade-IV employee in Class-IV post to the cadre of Junior Assistant/Lower Division Assistant in Class-III post and as provided by the said 2003 Rules, such post of Junior Assistant/Lower Division Assistant in Class-III are to be filled up by way of direct recruitment only. 29. Though petitioner has shown some orders by which some Grade-IV employees of provincialised Higher Secondary Schools of the State have been up-graded to the post of Junior Assistant or Lower Division Assistant, but as there is a statutory Rules under Article 309 of the Constitution of India regulating the recruitment and conditions of service of employees of the persons appointed to the Assam Secondary Education (Provincialised) Service, namely, the Assam Secondary Education (Provincialization) Service Rules, 2003. Moreover, the petitioner in the present case has also failed to show that said 2003 statutory Rules provides for any up-gradation from Grade-IV employee to the post of Junior Assistant in such provincialised Higher Secondary Schools. 30. For the reasons above, this Court is of the view that no such direction as prayed for by the petitioner in this writ petition can be issued to the respondents herein to upgrade him from Grade-IV post to the post of Junior Assistant in Daboka Higher Secondary School, a provincialised Secondary School in the District of Nagaon or at any other place in exercise of its extra-ordinary power under Article 226 of the Constitution of India in violation of such statutory Rules, though some similarly placed persons got such relief or order earlier. Accordingly, this writ petition, being devoid of merit stands dismissed.