Mofur Uddin vs The State Of Assam And 5 Ors
2021 Latest Caselaw 1801 Gua

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GAHC010116042021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3551/2021

         MOFUR UDDIN
         S/O LT. ABDUL GOFUR, VILL.AND P.O. JOGODISHPUR, DIST. CACHAR,
         ASSAM, PIN-788805



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         SECONDARY EDUCATION DEPTT. DISPUR, GUWAHATI-6

         2:THE STATE SELECTION BOARD
         ASSAM
          FOR SELECTION OF PRINCIPALS OF PROVINCIALIZED HIGHER
         SECONDARY SCHOOLS
          REP. BY ITS CHAIRMAN DISPUR GUWAHAYTI-6

         3:THE ADDL. SECRETARY
         TO THE GOVT. OF ASSAM
          SECONDARY EDUCATION DEPTT. DISPUR
          GUWAHATI-6

         4:THE DIRECTOR
          SECONDARY EDUCATION ASSAM
          KAHILIPARA
          GUWAHATI-19

         5:THE NATIONAL COUNCIL FOR TEACHER EDUCATION (NCTE)
          RER. BY THE REGIONAL DIRECTOR
          EASTERN REGIONAL COMMITTEE
          15 NILAKANTHA NAGAR
          NAYAPALLI
          BHUBANESWAR ODISHA-751012
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            6:MUCHBBIR ALI
             S/O TAHIR ALI
            VILL. NIZ. KATIGORAH
             PT-1
             P.O. GANGAPUR
             DIST. CACHAR
            ASSAM
             PIN-78880

Advocate for the Petitioner   : MR. A R BHUYAN

Advocate for the Respondent : SC, SEC. EDU.

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

JUDGMENT & ORDER (ORAL)

Date : 09-08-2021

Heard Mr. A R Bhuyan, learned counsel for the petitioner. Also heard Mr. R Mazumdar, learned counsel for the respondents no. 1, 2, 3 and 4 being the authorities under the Secondary Education Department, Government of Assam, Mr. N H Barbhuyan, learned counsel for the respondent no. 5 being the authorities under the NCTE as well as Mr. I H Saikia, learned counsel for the respondent no. 6 Md. Muchabbir Ali.

2. Both the petitioner as well as the respondent no. 6 participated in a selection process for a regular appointment to the post of Principal of Baleswar Higher Secondary School in the Cachar district.

3. It is an admitted position that the selection would be governed by the provisions of Assam Secondary Education (Provincialised) Service Rules, 2003 (in short Rules of 2003) and not by the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (in short Rules of 2018) inasmuch as the process for selection was initiated prior to the enactment of the Rules of 2018. The procedure for appointment under the Rules of 2003 is provided under Rule 13 thereof.

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4. The procedure to be adopted is that the Member Secretary of the School Selection Committee shall invite applications from the intending eligible candidates through an advertisement and on receipt of the applications, the Schools Selection Committee constituted under Rule 8(4) after scrutinizing the applications would hold an interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills, administrative ability, integrity and commanding personality. Rule 13(3) provides that the panel of names so prepared by the School Selection Committee shall be forwarded through the concerned Inspector of Schools to the State Selection Board constituted under Rule 16, who shall under Rule 13(5) prepare a select list equal to the number of vacant posts again taking into consideration of the leadership skills, administrative ability, integrity and commanding personality. The select list prepared by the State Selection Board under Rule 13(5) is required to be approved by the Government and the approved list shall remain in force for a period of one year thereafter.

5. In the evaluation of the School Selection Committee, the petitioner Mofur Uddin was placed at serial no. 1 whereas the respondent no. 6 Muchabbir Ali was placed second and the B.Ed. degrees of both the petitioner and the respondent no. 6 were taken into consideration. When the matter was pending before the State Selection Board, the respondent no. 6 Muchabbir Ali submitted a representation raising an allegation that the B.Ed. degree of the writ petitioner Mofur Uddin was obtained from an institute namely Dr. Shashi Bhusan Institute of Education and as the said institution had received its recognition from the NCTE on 30.01.2000, the B.Ed. degree is liable to be not recognized.

6. The State Selection Board by an order dated 10.09.2019 overruled such objection of the respondent no. 6 by arriving at its conclusion that the NCTE had extended the last date of receiving of applications for recognition upto 18.08.1997 and the institute concerned namely Dr. Shashi Bhusan Institute of Education had submitted its application prior to the same date. Accordingly, the conclusion arrived was that the B.Ed. degree of the petitioner was a valid degree under the law. The State Selection Board also recommended the petitioner Mofur Uddin to be the first candidate in order of merit in the select list.

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7. As required under Rule 13(5) when the matter went before the Government for its approval, the order dated 29.07.2021 was passed under the signature of Additional Secretary to the Government of Assam in the Secondary Education Department. In the said order of 29.07.2021, the Government arrived at its conclusion that Dr. Shashi Bhusan Institute of Education, which was earlier named as Hailakandi B.Ed. College, which is a private college, did not apply before the NCTE for recognition within a period of six months from the appointed date of enforcement of the NCTE Act. The only reason given is that the application for recognition was not made within the six months of the appointed date of the NCTE Act coming into its force and therefore, the B.Ed. degree obtained by the petitioner from Dr. Shashi Bhusan Institute of Education was an invalid degree. Based upon such conclusion, the respondent no. 6 Muchabbir Ali was appointed as regular Principal of the college concerned. Being aggrieved, this writ petition is instituted.

8. Mr. A R Bhuyan, learned counsel for the petitioner raises a contention that the institute Dr. Shashi Bhusan Institute of Education had submitted its application for recognition before the NCTE on 12.08.1997 whereas as held by this Court in Pranita Sarma vs. State of Assam and others in WP(C) 3289/2020 the last date for submission of such application was 18.08.1997. As the application was submitted within the acceptable time limit, therefore the B.Ed. degree obtained from such institute is a valid degree.

9. Mr. R Mazumdar, learned counsel for the Secondary Education Department, Government of Assam agrees that in the judgment of this Court in Pranita Sarma, it had been held that any application by an institute offering the B.Ed. degree if made prior to 18.08.1997, the B.Ed. degree obtained through such institute would be a valid degree.

10. From the said point of view, the conclusion arrived in the order of Additional Secretary to the Government of Assam in the Secondary Education Department dated 29.07.2021 regarding the invalidity of the B.Ed. degree of the petitioner is on the basis of an incorrect proposition of the law.

11. Mr. I H Saikia, learned counsel for the respondent no. 6 on the other hand submits that the NCTE Act came into force on 01.07.1995 and the appointed date is Page No.# 5/6

17.08.1995 and the date for submission of application for recognition was extended upto 18.08.1997 only in respect of such institute which were in existence on the date when the Act came into force. The subsequent date of 18.08.1997 would not be applicable in respect of such institutes which came into its existence after the appointed date of NCTE Act.

12. Mr. Saikia raises an allegation that Dr. Shashi Bhusan Institute of Education was not in existence as on 17.08.1995 when the NCTE came into force inasmuch as it was established on 31.12.1995.

13. We find that the said submission of Mr. I H Saikia also requires a consideration.

14. As the order dated 29.07.2021 was passed by the Additional Secretary to the Government of Assam in the Secondary Education Department by an incorrect appreciation of the law as well as the facts, we remand the matter back to the Additional Secretary for a fresh consideration by taking into account that in the Pranita Sarma judgment the last date for submission of application had been held to be 18.08.1997 and any institute which makes its application prior to the said date, the B.Ed. degree obtained from such institute would be a valid degree. But at the same time a determination would also be required whether the institute which had submitted its application prior to 18.08.1997 was in existence as on 17.08.1995 when the NCTE came into force.

15. For both the aspects, the matter stands remanded back to the Additional Secretary to the Government of Assam in the Secondary Education Department for his determination firstly whether Dr. Shashi Bhusan Institute of Education had made its application prior to 18.08.1997 and secondly whether the said institute was in existence as on 17.08.1995 when the NCTE Act came into force and accordingly pass a reasoned order thereon

16. The requirement be done by the Additional Secretary to the Government of Assam in the Secondary Education Department within a period of one month from the date of receipt of certified copy of this order. In doing so, the Additional Secretary shall give a hearing to both the petitioner as well as the respondent no. 6 to present their respective points of view on law as well as on facts. Till such reasoned order is passed by the Additional Secretary, the respondent no. 6 be allowed to continue as a Principal Page No.# 6/6

if he has already taken over charge and if not, the Director shall decide as to who will continue in the post of Principal of the said college.

17. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant