Gauhati High Court
Amal Chandra Biswa Sarma vs The Commissioner And Secretary To ... on 16 August, 2021
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GAHC010030172020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./37/2020
AMAL CHANDRA BISWA SARMA
S/O SRI JOGENDRA CHANDRA BISWA SARMA, R/O WARD NO.
DHEKIAJULI, P.O. DHUKIAJULI, DIST. SONITPUR, PIN-789110, ASSAM
VERSUS
THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM AND 4
ORS
EDUCATION (SECONDARY) DEPTT. DISPUR, GUWAHATI-781006
2:THE DIRECTOR
SECONDARY EDUCATION DEPTT. ASSAM
KAHILIPARA
GUWAHATI-781019.
3:THE INSPECTOR OF SCHOOLS
SONITPUR DIST. CIRCLE
TEZPUR
TEZPUR-784110
4:THE TREASURY OFFICER
SONITPUR
DIST. SONITPUR
TEZPUR
ASSAM
PIN-784110
5:SMTI. MAHUA DAS
ASST. HEAD MISTRESS
NETAJI BIDYAMANDIR HIGH SCHOOL
DHEKIAJULI
W/O SRI ASHIM DAS
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R/O WARD NO. 10
DHUKIAJULI
P.O. DHEKIAJULI
DIST. SONITPUR
PIN-78911
Advocate for the Petitioner : MR. R P SARMAH
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 16-08-2021
Heard Mr. R.P. Sharma, learned Senior counsel, assisted by Ms. S.P. Chetry,
learned counsel for the review petitioner. Also heard Ms. P. Chakraborty, learned
Standing Counsel, Secondary Education Department, Government of Assam and
Mr. A. Deka, learned counsel for respondent No.5.
2. The present review petition has been filed seeking review of the order dated
24.01.2020 passed in WP(C) No.426/2020 on the ground that certain changes in law were
not brought to the notice of this Court by any of the parties relating to the position of
Assistant Graduate Teacher vis-à-vis Assistant Headmistress and a reference was made to the
order passed by this Court in WP(C) No.7234/2015 disposed of on 20.04.2016 which is no
more good law in view of the amendment of the service rules, viz., Assam Secondary
Education (Provincialised Schools) Service Rules, 2018 (2018 Rules), which has suspended
the earlier service rules, viz., of Assam Secondary Education (Provincialised) Service Rules,
2003.
3. While passing the order on 24.01.2020, this Court made the following observations:-
"5. The aforesaid contention of the learned Senior counsel for the petitioner has been
resisted by the respondents on the ground that even if the school had shown the
petitioner to be senior to the respondent No.5, it is a fact that the respondent No.5 is
presently serving as Assistant Headmistress on regular basis since 2012 and it cannot be
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denied that the respondent No.5 being appointed as Assistant Headmistress is holding a
higher grade in the post of higher grade than the post of Assistant Teacher (the
petitioner), in terms of the amended rules, namely, Assam Secondary Education
(Provincialised Schools) Service Rules, 2018, as notified on 18.09.2019.
6. Learned counsel for the respondent No.5 submits that it has been already clarified by
this Court in WP(C) No.7234/2015 disposed of on 20.04.2016 that the question of seniority
between the Assistant Teacher and Assistant Headmistress does not arise for the reason
that they belong to different grades. The post of Assistant Teacher is a feeder post of
Assistant Headmistress and as such there could not have been a common seniority of post
in the feeder grade as well as in the promotional grade.
7. It has been submitted by the learned counsel for the respondent No.5 that the said
judgment having not been appealed has attained finality. Therefore, even if in the seniority
list of teachers eligible for the post of Headmaster/Headmistress, the name of the
petitioner is shown to be in Sl. No.1, it does not distract from the fact that the petitioner is
merely an Assistant Teacher whereas the respondent No.5 is an Assistant Headmistress
and by virtue of being in a higher grade, would obviously be senior in any event and as
such it has been submitted that replacing the petitioner who was appointed as In-charge
Headmaster of the school by the respondent No.5, who holds the post of Assistant
Headmistress which is higher in grade, it cannot be said to be an illegal replacement and as
such the impugned order does not warrant any interference from this Court.
8. Learned Senior counsel for the petitioner however submits that the rules provides that
both the Assistant Teacher and the Assistant Headmistress are eligible for promotion to
the post of Headmaster/Headmistress and as such since the petitioner had entered service
more than 7 years before the respondent No.5, the petitioner can be said to be senior. Be
that as it may, in view of the decision of this Court in WP(C) No.7234/2015 this Court is not
inclined to accept that the petitioner who is an Assistant Teacher is senior to the
respondent No.5 who is holding the post of Assistant Headmistress on regular basis as the
respondent No.5 is admittedly holding a higher post and would naturally be senior to a
person holding a post in the lower grade. Accordingly, this Court does not find the
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impugned order to be illegal. However, since the impugned order was also passed by way
of in-charge arrangement, it is desirable that such post is filled up on regular basis.
4. Accordingly, the direction was issued in paragraph-10 as follows:-
"10. Be that as it may, without touching upon the various aspects raised in this
petition, this Court is of the view that it would be desirable that if there be any regular
vacancy it ought to be filled up on regular basis if eligible candidates are available as in
the present case as it is not desirable to keep such regular vacancy manned by way of
in-charge arrangement."
5. Thereafter, the Court issued the ultimate direction in paragraph-11, which reads as
under:-
"11. Accordingly, the respondent authorities are directed to take necessary steps for
filling up the regular vacant post of the Headmaster in the Netaji Bidyamandir High
School as early as possible preferably within a period of 3(three) months by
considering the claim of all eligible candidates including the petitioner and the
respondent No.5."
6. It has been submitted that before the Service Rules were amended in 2018, the post of
Assistant Headmistress was higher in grade to the post of Assistant Graduate Teacher.
However, after framing of the 2018 Rules as notified on 18.09.2019, posts of Assistant
Headmistress and Assistant Graduate Teachers have been placed at par and, as such, to that
extent, necessary review of the order especially in paragraph-5 would be required to be
made.
7. Consequently, the decision of this Court in WP(C) No.7234/2015 disposed of on
20.04.2016 cannot be said to have laid down the correct law in view of the subsequent
amendment in the service rules and, as such, in paragraph-6 of the order, the observation
that the post of Assistant Teacher is a feeder post of Assistant Headmistress also requires to
be reviewed.
8. As a consequence, the submission made by respondent No.5 as recorded that the
respondent No.5 being Assistant Headmistress would be senior to the review petitioner who
was holding the post of Assistant Graduate Teacher would also be required to be reviewed.
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9. This Court under the circumstances and in the light of the earlier position of law and
submission made by the parties directed the authorities to fill up the post of Headmaster in
Netaji Bidyamandir High School, Sonitpur on regular basis as early as possible preferably
within a period of three months by considering the claim of all eligible candidates including
the petitioner and the respondent No.5, which also needs to be modified by giving some
more time to the authorities as regular appointment could not be made because of Covid
pandemic.
10. As regards parity of the posts of Assistant Graduate Teacher and Assistant
Headmistress in High School under the existing service rules, there is no dispute amongst the
parties now and all the parties are also in agreement that the order passed by this Court on
20.04.2016 in WP(C) No.7234/2015 will not be relevant in view of the amendment of the
service rules in 2018 and, as such, reference to the said order will not be necessary.
11. At the same time, all are also in agreement that promotion to the post of Headmaster
of the High School is to be made on regular basis on the basis of the seniority list prepared
district-wise under Rule 14 of the 2018 Rules.
12. Accordingly, this Court, after hearing the parties and considering the materials on
record, hereby reviews the order dated 24.01.2020 and paragraphs-5, 6, 7 and 8 are replaced
with the following new paragraph No.5:-
"5. It has been submitted that the post of Assistant Graduate Teacher and the
post of Assistant Headmistress are at par as per the Assam Secondary Education
(Provincialised Schools) Service Rules, 2018 though the post of Assistant Headmistress
was placed above the post of Assistant Graduate Teacher in the earlier Assam
Secondary Education (Provincialised) Service Rules, 2003 and, as such, the claim of
respondent No.5 to be senior to the petitioner by virtue of being Assistant
Headmistress cannot be accepted and seniority has to be fixed district-wise as
provided under Rule 14 of the 2018 Rules."
13. Accordingly, the direction issued by this Court as contained in the paragraph-11 stands
amended by directing the authorities to take necessary steps for filling up the post of regular
Headmaster in Netaji Bidyamandir High School, Nagaon as early as possible preferably within
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a further period of three months by considering the claim of all eligible candidates including
the petitioner and the respondent No.5.
14. It is made clear that since the review petitioner claims to be five years senior to the
respondent No.5 and also the senior-most Graduate Teacher in the district, as submitted by
the learned Senior counsel for the review petitioner, it will not be desirable to continue this ad
hoc arrangement of the respondent No.5 holding the post of Headmaster of the school on in-
charge basis, longer, without making regular appointment, as it would have a demoralizing
effect on all the senior teachers and, accordingly, this Court expects the authorities to
complete the process for appointment on regular basis within the aforesaid extended period
of three months from today.
15. With the above observations, modifications and clarifications, the review petition stands
disposed of.
JUDGE
Comparing Assistant
