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2019 DIGILAW 879 (GAU)

Susmita Sutradhar Das v. State of Assam

2019-08-06

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. W.P.(C) No. 134 of 2018 1. Heard Mr. D. Borgohain, learned Senior Counsel assisted by Mr. P. Phukan, learned counsel for the appellant. Also heard Mr. D. Mazumdar, learned Senior Advocate General, assisted by Mr. N. Sarma, learned Standing Counsel, Elementary Education, Assam. Also heard Mr. K.N. Choudhury, learned Senior Advocate, Mr. R.M. Deka, learned counsel for respondent No. 4 and Mr. P.J. Saikia, learned counsel for respondent No. 5. 2. The petitioner being aggrieved by her non promotion to the post of Additional Director has questioned the process of promotion including that of the private respondents. The petitioner is claiming promotion to the post of Additional Director, SCERT. The private respondents have been recommended and given promotion to higher posts of Joint Directors under a one-time measure undertaken by the State Government for filling up 83 Nos. of posts including 2 posts of Additional Director and 9 posts of Joint Directors under the restructured SCERT. This one time measure involves double promotion, providing promotion from the post of Deputy Director to Additional Director, Reader/Project Officer/Assistant Director/Controller of Examination to the post of Joint Director in the rank of Professor, posts of Lecturers to the post of Deputy Director in the rank Associate Professor, posts of Programme cum Script Writer/Research Assistant to the post of Assistant Director in the rank of Assistant Professor, by skipping the intermediate posts, in terms of the order dated 05.12.2017 issued by the respondent No. 1. 3. The petitioner is also claiming double promotion to the post of Additional Director from the post of Deputy Director which she is holding on regular basis. However, the only hurdle before the petitioner is the stipulation of possession of B.Ed. Degree by the incumbents before being considered for double promotion which degree the petitioner does not possess. The case of the petitioner is that the requirement of B.Ed. degree is nowhere mentioned in the relevant recruitment rules. It has been submitted that the recruitment rules were framed by the State Government namely, Assam Educational (Research and Training-Gazetted) Service Order, 2017 which were notified on 04.12.2017. The case of the petitioner is that the requirement of B.Ed. degree is nowhere mentioned in the relevant recruitment rules. It has been submitted that the recruitment rules were framed by the State Government namely, Assam Educational (Research and Training-Gazetted) Service Order, 2017 which were notified on 04.12.2017. Order 12 of the aforesaid Order of 2017 provides for recruitment by way of promotion in which it has been provided that the post of Additional Director, SCERT will be filled by way of promotion from the post of Joint Director having requisite qualification as regular service as prescribed in the Schedule II and the candidate has to possess training on teacher education as career progression. It has been submitted that if one refers to Schedule II of the Order mentioned above, there is no reference to the qualification required for promotion to the post of Additional Director. Schedule II, in fact, deals with qualification and experience prescribed for direct recruitment for the posts of Assistant Director in the rank of Assistant Professor, Lecturer, SCERT, etc mentioned therein. It has been submitted that Schedule II nowhere speaks of the qualification required for promotion to the post of Additional Director. 4. It is accordingly, submitted by the learned counsel for the petitioner that if the rules framed under Article 309 of the Constitution are silent on the requirement of possession of B.Ed. degree for promotion to the post of Additional Director, it will be impermissible for the Government to issue an order without having any reference to Article 309 of the Constitution of India for adding a qualification for promotion. It has been submitted that the aforesaid Orders, 2017, were framed by the State Government in exercise of the powers conferred by Article 309 of the Constitution of India. Thus, it is legislative in nature though delegated. On the other hand, the order dated 05.12.2017 is merely an executive order without having the force of delegated legislation under Article 309 of the Constitution of India. It is in that context that it has been submitted by the learned counsel for the petitioner that this insistence on possession of B.Ed. Thus, it is legislative in nature though delegated. On the other hand, the order dated 05.12.2017 is merely an executive order without having the force of delegated legislation under Article 309 of the Constitution of India. It is in that context that it has been submitted by the learned counsel for the petitioner that this insistence on possession of B.Ed. Degree for promotion to the post of Additional Director is impermissible and cannot be insisted upon and, as such, rejection of the claim of the petitioner for promotion to the post of Additional Director in terms of the impugned order dated 05.12.2017 is not proper, and accordingly, has sought for a direction from this Court to the authority not to insist upon the requirement of B.Ed. degree for double promotion to the post of Additional Director and direct the respondents to promote her to the post of Additional Director as has been given to the private respondents to the post of Joint Director by way of double promotion. 5. The said contention of the petitioner has been opposed by the respondents contending that the said order dated 05.12.2017 was issued as per the Government of India, MHRD Department's guidelines for restructuring and re-organisation of the Centrally Sponsored Scheme on Teacher Education issued in June 2012. It has been submitted that in terms of the said guidelines issued by the Government of India, the State Government also prepared its perspective plan and budget for SCERT. As per the aforesaid perspective plan prepared by the State Government, possession of qualification of B.Ed. is necessary for holding the various posts enumerated in the said plan. 6. Accordingly, it has been submitted that the impugned order dated 05.12.2017 cannot be said to be ultra vires. As per the aforesaid perspective plan prepared by the State Government, possession of qualification of B.Ed. is necessary for holding the various posts enumerated in the said plan. 6. Accordingly, it has been submitted that the impugned order dated 05.12.2017 cannot be said to be ultra vires. It has been further submitted by the learned counsel for the respondents that Order 28 of the Service Order of 2017 itself provides that the existing faculties of SCERT, Assam shall be absorbed in the posts of Additional Director, Joint Director in the rank of Professor, Deputy Director in the rank of Associate Professor, Assistant Director in the rank of Assistant Professor, Librarian cum Documentation Officer, Assistant Librarian, Senior Research Officer, Administrative Officer, Senior Inspecting Officer, Assistant Research Officer and Accounts Officer and as such, since, the Order itself provides for giving relaxation in terms of the perspective plan prepared by the State Government it shall be deemed that the said perspective plan forms a part of the Order and hence, of the service rules framed under Article 309 of the Constitution, as such, it cannot be said that the order dated 5.12.2017 is de hors the rules. 7. Heard both the parties and also perused the materials on record. Apparently, the State Government restructured the SCERT on the basis of the guidelines issued by the Central Government. However, it is to be noted that the aforesaid guidelines were issued in general terms but without giving all the detail particulars of all the posts and detail methodologies for recruitment to these posts. In fact, in the said guidelines issued by the Central Government, there is no reference to the administrative posts of Additional Director, Joint Director or the Deputy Director. Of course, there is a reference to the posts of Principal, Vice Principal and other teaching staff for which B.Ed. has been made an essential qualification. The guidelines, however, are silent on the requirement of possession of B.Ed. for appointment to the administrative posts like Additional Director, with which, we are directly concerned with. 8. It may also be noted that the State Government did not adopt this guideline in toto but framed its own perspective plan by keeping in mind the various guidelines and criteria mentioned in the Central Government's guidelines. for appointment to the administrative posts like Additional Director, with which, we are directly concerned with. 8. It may also be noted that the State Government did not adopt this guideline in toto but framed its own perspective plan by keeping in mind the various guidelines and criteria mentioned in the Central Government's guidelines. The post of Additional Director does not find place in the perspective plan and for obvious reasons, qualifications required for promotion to the post of Additional Director are also not to be found. If that is so, even if this perspective plan prepared by the State Government is deemed to be part of the recruitment rules, it can be said that the recruitment rules are silent as far as qualification for promotion to the post of Additional Director is concerned. 9. From the above, this Court has noted that there are certain gaps or ambiguities in the restructuring process including recruitment, which would have some repercussion on the recruitment process and one such has been highlighted by the petitioner in this petition. However, this Court also has noted that the present litigation is confined to a recruitment process which is one of its kind, in the sense that, this is a one-time measure. In other words, this litigation relates to a recruitment process which is of a one-time measure, which is not likely to be replicated in future in terms of the provisions of Order 28 of the Order of 2017. In fact the Order 28 itself mentions of relaxation as a one-time measure and not to be treated as a precedent. Under normal service jurisprudence, promotion is to be given to the next higher post from the immediate lower feeder post. Normally promotions are not given by skipping the immediate higher post though there may be instances, in which event, there would be strict stipulations about requirement of certain length of service, qualification, etc. As mentioned above, this is a one-time measure adopted by the State Government for giving double benefit of promotion to the existing incumbents. Because of this, certain ambiguities has come into play. As mentioned above, this is a one-time measure adopted by the State Government for giving double benefit of promotion to the existing incumbents. Because of this, certain ambiguities has come into play. However, since it is a one-time measure and such a process is not likely to be repeated again in future in terms of Order 28 of the aforesaid Order of 2017, this Court also is not very inclined to disturb the promotion of the private respondents for which necessary recommendation have been already made and appointment order issued. 10. It is in that context, and considering the ambiguity of the requirement of possession of B.Ed. degree either in the Government of India's guidelines or in the prospective plan prepared by the State Government or in the service rules of 2017 referred to above, for promotion to the post of Additional Director, this Court would take the view that if the State Government reconsiders the case of the petitioner for relaxing possession of the aforesaid qualification of B.Ed. Degree it will not cause any prejudice to any other person, nor to the Department. 11. This Court has made this observation after having gone through the proceedings of the Department Selection Committee held on 14.12.2017, a copy of which is annexed as Annexure 11 to the writ petition. It seems almost all the incumbents in SCERT, Assam have been given the benefit of double promotion except the petitioner and two other persons namely, Smti. Meena Kumari Borah and Dr. Jutiphul Barua. Therefore, it is only these 3 (three) employees in SCERT who have missed the bus of getting double promotion merely because they do not possess B.Ed. degree, and all other remaining incumbent employees in SCERT have been given the said benefit of double promotion. 12. It has been also mentioned by learned counsel for the petitioner that the petitioner is going to retire by 31.08.2019. If that is so, even if the petitioner is given promotion to the post of Additional Director it will be hardly for a few days. Considering the fact that the petitioner has been serving in the Department since 1992 and has gained vast experience through different hierarchical posts of Lecturer, Deputy Director, this Court is of the view that relaxing the said requirement of B.Ed. Considering the fact that the petitioner has been serving in the Department since 1992 and has gained vast experience through different hierarchical posts of Lecturer, Deputy Director, this Court is of the view that relaxing the said requirement of B.Ed. Degree for appointment to the post of Additional Director in the aforesaid circumstances cannot be said to be an unreasonable one. As far as other two persons namely, Smti. Meena Kumari Borah and Dr. Jutiphul Barua are concerned, if the authorities consider that they have longer service period left, the authorities can consider insisting upon them of obtaining the B.Ed. Degree within a specific time period after promotion, to enable them to make up this deficiency. 13. As far as the issue of relaxation of essential qualification is concerned, it is now well settled that it is normally left to the wisdom of the employer as per the rules. It has been submitted by learned counsel for the State that the case of the petitioner was indeed considered earlier by the State authorities for relaxation, but the same was not acceded to. However, when queried by this Court, it was informed that the said decision was taken on 29.08.2018 and not at the instance of the Court. While this Court is not making any observation about the said rejection by the authorities, this Court would assume that perhaps the authorities were more concerned of the problems it may create in future by relaxing the said qualification for the petitioner. However, in the present case as mentioned above, as the petitioner has only a few days left for retirement from service and since it is a one-time measure as also explicitly mentioned in Order 28 of the Orders of 2017, this Court is of the view that it would be a fair and proper decision if relaxation is granted to the petitioner as regards non possession of B.Ed. Degree by the petitioner for promotion to the post of Additional Director. If the Government has already relaxed the service rules for giving double benefit in the interest of the administration, this Court would hold that further relaxation by exempting the requirement of possession of B.Ed. by the petitioner, in view of her long service and experience in the Department cannot be said to be an unreasonable one. 14. If the Government has already relaxed the service rules for giving double benefit in the interest of the administration, this Court would hold that further relaxation by exempting the requirement of possession of B.Ed. by the petitioner, in view of her long service and experience in the Department cannot be said to be an unreasonable one. 14. On the other hand, because of mere possession of B.Ed., many of those who were junior to the petitioner will overnight become senior to her even without discharging the duties and holding the post of Deputy Director. Thus, this one-time exercise will have the effect of adversely affecting the interest of the petitioner, and can be said to be arbitrary and discriminatory as far as the petitioner is concerned. In the light of above observations, this Court expects that the State authority would take necessary steps for relaxing the aforesaid requirement of possession of B.Ed. Degree by the petitioner and also in respect of other two employees mentioned above, so that this onetime relaxation measure under taken by the authorities comes to a closure without any disillusionment on the part of any of the remaining existing incumbents. Though the aforesaid two persons namely, Smti. Meena Kumari Borah and Dr. Jutiphul Barua are not before this Court, considering the nature of their case and similarity of the situation in which they are placed with the present petitioner, this Court without their appearance before this Court, has made observation that the authority will also relax the qualification in respect of these two employees also for grant of double promotion. 15. Accordingly, under the facts and circumstances as discussed above, even though the State authority had rejected the case for relaxation of the requirement of possession of B.Ed. Degree by the petitioner, the State authority will reconsider the matter and take a fresh decision for relaxing the requirement of B.Ed. Degree, so that the petitioner and aforesaid two persons namely, Smti Meena Kumari Borah and Dr. Jutiphul Barua can also be given double promotion as given to others. 16. The State Government will thereafter, issue necessary consequential orders for double promotion of the petitioner to the post of Additional Director and the other two persons named above to the higher posts by giving similar benefits as given to other private respondents. 17. This writ petition stands disposed of accordingly. Earlier interim order stands vacated. 16. The State Government will thereafter, issue necessary consequential orders for double promotion of the petitioner to the post of Additional Director and the other two persons named above to the higher posts by giving similar benefits as given to other private respondents. 17. This writ petition stands disposed of accordingly. Earlier interim order stands vacated. The recommendation made by the Departmental Selection Committee held on 14.12.2017 as regards the private respondents and the consequential promotion order dated 29.12.2017 of the private respondents shall be given effect to. W.P.(C) No. 6296 of 2018 18. In terms of order passed in W.P.(C) No. 134/2018, W.P.(C) No. 6296/2018 is also disposed of and the stay order passed earlier also stands vacated.