Gauhati High Court
Page No.# 1/13 vs The State Of Assam And 4 Ors on 22 December, 2022
Page No.# 1/13
GAHC010148302021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4829/2021
BHABEN BHATTA AND 2 ORS.
S/O LATE PRAFULLA BHATTA, R/O VILL-BARKURA, P.O.-BALIKURIA,
DIST-NALBARI, ASSAM, PIN-781341
2: PADMA DHAR DAS
S/O SRI SONARAM DAS
R/O VILL AND P.O.-RAMPUR
DIST-NALBARI
ASSAM
PIN-781312
3: BIKASH BEZBARUAH
S/O LATE NARAYAN BEZBARUAH
R/O VILL-GAMARIMURI
P.O.-KAITHALKUCHI
DIST-NALBARI
ASSAM
PIN-78137
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT, DISPUR,
GUWAHATI-6
2:THE STATE SELECTION BOARD
THROUGH THE CHAIRMAN
I.E. THE SECRETARY TO THE GOVT. OF ASSAM
SECONDARY EDUCATION DEPARTMENT
DISPUR
Page No.# 2/13
GUWAHATI-781006
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-781019
4:THE DISTRICT SELECTION COMMITTEE
THROUGH THE DEPUTY COMMISSIONER
NALBARI
VILL
P.O. AND DIST-NALBARI
PIN-781335
5:THE INSPECTOR OF SCHOOLS
NALBARI DISTRICT CIRCLE
NALBARI
VILL.
P.O. AND DIST-NALBARI
ASSAM
PIN-78133
Advocate for the Petitioner : MR. I H SAIKIA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioners : Mr. I.H. Saikia, Adv.
For the Respondents : Mr. R. Mazumdar, SC
(For Respondent Nos.1, 2, 3 & 5)
Date of Hearing : 10.11.2022
Date of Judgment & Order : 22.12.2022
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JUDGMENT & ORDER
(Soumitra Saikia, J)
1. Heard Mr. I.H. Saikia, learned counsel for the petitioners. Also heard Mr. R.
Mazumdar, learned standing counsel, Education (Secondary) Department,
appearing for the respondent Nos. 1, 2, 3 & 5.
2. This writ petition has been filed by three writ petitioners jointly challenging the
constitutional vires of Rule- 14(1) and the First Proviso to Rule- 14(2)(b) of the
Assam Secondary Education (Provincialised Schools) Service Rules, 2018. The three
petitioners were appointed as Graduate Teachers by orders dated 15.09.1998,
22.10.1998 and 15.10.1998 respectively in P.B. Lahkarpara High School,
Lahkarapara; Janta High School, Rampur and Kaithalkuchi High School,
Kaithalkuchi respectively. The appointment orders were issued by the Inspector of
Schools, Nalbari district Circle, Nalbari. In the course of their services, the three
petitioners upon being eligible to apply for the selection to the post of Assistant
Headmaster in their respective schools participated in the selection process and by
orders dated 05.08.2017, 03.02.2012 & 05.08.2017, respectively, the three
petitioners were promoted to the post of Assistant Headmasters in their respective
schools by the Director, Secondary Education, Assam. Upon being so promoted,
they joined in their substantive post of Assistant Headmaster on promotion in their
respective schools. They continued to render their services to the satisfaction of all
concerned. Subsequently, upon retirement of the regular headmasters in their
respective schools, the petitioner No. 2 was allowed to hold charge of Headmaster
of Janta High School, Rampur vide order dated 25.07.2019 and the petitioner No. 3
was also permitted to hold charge of Kaithalkuchi High School, Kaithalkuchi vide
order dated 01.03.2019 issued by the Director.
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3. The Assam Secondary Education (Provincialised Schools) Service Rules, 2018
(hereinafter referred to Rules of 2018) came to be notified in the Official Gazette
on 18.09.2019 and thereby the Assam Secondary Education (Provincialisation)
Service Rules, 2003 came to be repealed. The services of the employees of
Provincialised Secondary Schools are encadred in terms of Rule 3 of the Rules of
2018. The post of Assistant Headmasters and Graduate Teacher are encadred
under Rule- 3(1)(b)(i) and Rule- 3(1)(b)(ii) of the said Rules of 2018. The
procedure for filling up of the posts of Headmaster is prescribed under Rule- 14 of
the Rules of 2018. Under Rule 14(1), the posts of Headmaster should be filled up
by promotion from the candidates amongst Graduate Teachers as per district wise
seniority list on the recommendation of the District Selection Committee
constituted under Rule- 16(2). The selection of Headmaster will be based on
seniority and satisfactory Annual Confidence Report for the last three consecutive
years as per the procedure provided under Sub-Rule 3. The proviso to Rule 14(1)
further prescribes that the seniority of the Graduate Teachers shall be determined
from the date of receiving graduate scale of pay by respective Assistant Teacher.
Similarly, the proviso to Rule 14(2)(b) prescribes that the Graduate Teacher shall
include the cadre of Assistant Headmaster for the purposes of selection to the post
of Headmaster and the seniority of the Assistant Headmaster shall be counted from
the date of joining as a Graduate Teacher with a Graduate Scale of Pay.
4. The primary grievance of the petitioners is that the Rule 14(2)(b) has included
the cadre of Assistant Headmaster within the cadre of Graduate Teacher for the
purpose of selection and promotion to the post of Headmaster and further the
seniority of the Assistant Headmaster is to be counted from the date of joining as a
Graduate Teacher with Graduate Scale of Pay. According to the petitioners, since
they are all regularly promoted and are rendering services in their substantive
posts as Assistant Headmasters in their respective schools, and the post of
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Assistant Headmaster being shown as a separate cadre under the Rules, the
prescription under Rule 14(2)(b) for inclusion of cadre of the Assistant Headmaster
within the cadre of Graduate Teacher, which according to the writ petitioner is a
post lower in hierarchy than the Assistant Headmaster, the same amounts to
violation of Article 14 and thereby the petitioners are deprived of their position in
their seniority list by virtue of their promotion as Assistant Headmasters and denial
of such position in the seniority list will adversely affect their chances of being
considered for promotion to the post of Headmaster as there may be other
candidates who had received Graduate Scale at an earlier date but who have not
been promoted to the next higher post of Assistant Headmaster like the
petitioners. According to the petitioners, this amounts to treating unequals as
equals and it is squarely hit by the mandate of Article 14. It is contended that the
Rule 14(1) and proviso to Rule 14(1)(b) should be interfered with and struck down.
5. The further submissions of the writ petitioners are that the cadres i.e.
Assistant Headmaster and Graduate Teachers are distinct and different and that the
cadre of Assistant Headmaster being higher than that of the cadre of Graduate
Teachers, the clubbing of these two distinct cadres will unreasonably affect the
chances of the petitioners from promotion during the selection process for the post
of Headmaster.
6. The petitioners further urged that under 2003 Rules, the selection to the post
of Headmaster was made on the basis of school wise seniority. Although, at the
occasion to deal with a similar challenge was made to a similar provision under the
erstwhile Rules of 2003, in WP(C) No. 1580/2017 and WP(C) No.390/2020 and
which was negated by Co-ordinate Benches of this Court, it is contended that the
ratio in these two judgments will not be applicable inasmuch as in the present
Rules of 2018, the selection to the post of Headmaster is made district wise
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whereas in the earlier Rules, selection was made on school wise seniority. The
petitioners, therefore, urge that the writ petitions be allowed interfering and setting
aside with the impugned Rule 14(1) and proviso to Rule 14(2)(b) of the Rules of
2018 as being ultra vires the Constitution of India. The petitioners have relied upon
the Judgment of the Apex Court in U.P. Power Corporation Limited -Vs- Ayodhya
Pd. Mishra & Anr., reported in (2008) 10 SCC 139 to contend that equals cannot be
treated unequally and similarly un-equals cannot be treated equally. The Judgment
of the Apex Court in Meeta Sahai [Dr. (Major)] -Vs- State of Bihar reported in 2019
Legal Eagle (SC) 1375 is also pressed into service in support of their contentions
that equals cannot be treated unequally. Reliance is also placed on the Judgments
of the Apex Court rendered in State of NCT of Delhi -Vs- Sanjeev @ Bittoo
reported in (2005) 5 SCC 318 to contend that any decision which is irrational,
illegal or there is any procedural impropriety, then the Courts can exercise judicial
review. According to the petitioners, the impugned Rules are unreasonable and are
in violation of Articles 14 and 16 of the Constitution of India and, therefore, the
same are liable to be set aside and quashed.
7. Per contra, Mr. R. Mazumdar, learned standing counsel for the Department
disputes the contentions raised by the writ petitioners. The learned standing
counsel for the Department contends that the posts of Assistant Headmaster and
Graduate Teacher although fall under two different cadres, the same are clubbed
together for the purposes of promotion to the post of Headmasters of a
provincialized secondary schools within the State of Assam. It is contended that the
process for selection to the post of Headmaster under 2003 Rules and the Rules of
2018 are similar except for the fact that under the 2003 Rules the selection of the
Headmaster was based upon the seniority within the respective schools and
satisfactory Annual Confidence Reports for three consecutive years whereas under
the 2018 Rules the selection to the post of Headmaster is to be made on the basis
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of district wise seniority and satisfactory Annual Confidence Reports for three
years. The learned standing counsel submits that this issue is squarely covered by
two earlier judgments of this Court rendered in Kripa Sindhu Das -Vs- State of
Assam and Ors. reported in 2020 1 GLT 545 and Protiva Devi -Vs- State of Assam
and Ors. decided on 06.04.2022 in [WP(C) No. 390-2020]. The learned standing
counsel for the Department, therefore, submits that no further issue is left to be
determined in the present proceedings in view of the judgments rendered by two
Co-ordinate Benches of this Court upholding the vires of Rule 14(1) and Rule
14(2).
8. The learned standing counsel submits that the rational behind combining the
cadre of Assistant Headmaster and Graduate Teacher for the purposes of seniority
has been so done to widen the zone of consideration and also to include the
Graduate Teachers from those schools where there is no post of Assistant
Headmaster. This procedure has been upheld by the Co-ordinate Bench of this
Court in Kripa Sindhu Das (supra) which is followed in Protiva Devi (supra).
9. The learned counsels for the parties have been heard. Pleadings on records
have been duly perused.
10. At the outset, it is necessary to refer to the prayers made in the in the writ
petition:-
Under the above facts and circumstances it is, therefore, prayed
that Your Lordship would be pleased to admit this Writ Petition, call for
the records, issue a Rule, calling upon the Respondents to show cause
as to why a Writ in the nature of Mandamus, Certiorari and / or any
other appropriate writ, order or direction of like nature shall not be
issued-
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(I) By declaring the impugned Rule 14(1) and the first proviso to Rule
14(2)(b) of the Assam Secondary Education (Provincialised Schools)
Service Rules, 2018 to be ultra vires to the Constitution of India;
(II) By directing the Respondent Authorities to amend the impugned
provisions of the 2018 Rules for promotion to the post of Headmaster
by distinguishing the feeder cadre of Assistant Headmasters from that
of the Graduate Teachers;
(III) By granting any other appropriate relief / reliefs as your
Lordships may deem fit and proper under the facts and circumstances
of the case;
-AND-
On perusal of the records, causes / objection shown if any and
after hearing the parties, your Lordship may be pleased to make the
Rule absolute and / or pass any other order / direction so as to grant
adequate relief to the Petitioner as is entitled under the law and equity
and as your Lordship may deem fit and proper in the interest of justice.
-AND-
Further pending disposal of the Rule, in the interim, Your
Lordship may be pleased to pass an order by staying/ suspending the
operation of the:
(I) The impugned Rule 14(1) and the first proviso to Rule 14(2)
(b) of the Assam Secondary Education (Provincialised Schools) Service
Rules, 2018; and
(II) By restraining the Respondents from promoting any
Graduate Teacher to the post Headmaster without first promoting the
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Assistant Headmasters to the post of Headmaster in the interest of
justice.
11. The grievance of the petitioners is specifically directed against the Rule- 14(1)
and the proviso to Rule- 14(2)(b). For convenience, the Rule- 14(1) and the proviso
to Rule- 14(2)(b) are extracted below:-
"14. Recruitment to the post of Head Master/Superintendent and
procedure thereof: (1) The post of Headmaster of a High School and
Superintendent of a High Madrassa shall be filled up by promotion from the
candidates amongst the Graduate Teachers as per District-wise seniority list
on the recommendation of the District Selection Committee constituted
under Rule 16(2). The selection of Headmaster and Superintendent shall be
based upon seniority and satisfactory Annual Confidential Report for last 3
consecutive years as per procedure provider under sub-rule (3):
Provided that the seniority of the Graduate Teacher shall be
determined from the date of receiving Graduate scale of pay by the
respective Assistant Teacher.
(2) Eligibility for the post of Headmaster/Superintendent in High
School/High Madrassa as the case may be shall be as follows:
(a) ................
(b) He must have at least 10 years of teaching experience as Graduate
Teacher :
Provided that the Graduate teacher shall include the cadre of
Assistant Headmaster for the purpose of selection to the post of
Headmaster and the seniority of the Assistant Headmaster shall be
counted from the date of joining as Graduate Teacher with graduate
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scale of pay :
Provided further that in case of amalgamated High School where
ME/MV school has been amalgamated, the Assistant Headmaster is
eligible for selection as Headmaster subject to the condition that the
incumbent should have at least 15 years of teaching experience as
graduate teacher including the period of service in the erstwhile
ME/MV School".
12. Upon careful perusal of the Rules, it is seen that the post of Headmaster of a
High School and the Superintendent of High Madrassa shall be filled up by
promotion from candidates amongst the Graduate Teachers as per the district wise
seniority list. The selection shall be based on seniority and satisfactory Annual
Confidence Reports for the last three years. The seniority of the Graduate Teacher
shall be determined upon the date of receiving Graduate Scale of Pay by respective
Assistant Teacher.
13. We have carefully perused the Judgments rendered by Co-ordinate Bench in
Kripa Sindhu Das (supra) and also the Judgment rendered in Protiva Devi (supra).
14. In Kripa Sindhu Das (supra), a Co-ordinate Bench of this Court has rendered a
finding that there are two types of high schools in Assam, namely, "Five Classes"
i.e. from "Class- VI to Class- X" and also "Two Classes High School" i.e. "Class- IX
and Class- X". In the Five Classes High School, the cadres available are that of the
Headmaster, Assistant Headmaster and Graduate Teacher. However, in the second
type of high school i.e. two class high school, there is no cadre of Assistant
Headmaster. Only the cadre of Headmasters and Graduate Teachers exists. It was
held by this Court that if Graduate Teachers and Assistant Headmasters are treated
to be two different cadres for the purpose of selection to the post of Headmaster,
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then it will create a more anomalous situation inasmuch as in the "Five Class High
Schools there are posts of Assistant Headmaster whereas in "Two Class" High
school there are no posts of Assistant Headmaster. Such interpretation according to
this Court would create more difficulties rather than removing any anomaly. It was
held that the rational that the cadre of Graduate Teachers should be the feeder for
the purpose of considering promotion to the cadre of Headmaster in both these
types of schools as well as the post of Assistant Headmaster in the first category of
schools, namely, Five class High Schools, appeared to be just, reasonable and
rational.
15. This Judgment came to be considered again in Protiva Devi (supra) in WP(C)
No. 390/2020. Another Co-ordinate Bench of this Court also duly subscribed to the
views of this Court in Kripa Sindhu Das (supra) and accepted the reasons laid down
in Kripa Sindhu Das (supra).
16. Coming to the case in hand, although the learned counsel for the petitioners
has submitted that in the earlier 2003 Rules, the selection to the post of
Headmaster was on the basis of seniority and three years ACR in their respective
schools, in the 2018 Rules the selection is to be made on the basis of district wise
seniority and there the earlier judgments rendered by Co-ordinate Benches will not
be applicable to the present proceedings, however, the learned counsel for the
petitioner is unable to contend before this Court as to how the ratio rendered by
this Court in Kripa Sindhu Das (supra) and followed in Protiva Devi (supra) will not
be applicable to the facts of the present case. Merely because, the seniority will be
district wise under the 2018 Rules unless a specific averment is made as to how
the earlier judgments are not applicable, that by itself would not render the ratio
laid down in Protiva Devi (supra) to be inapplicable to the facts of the present
proceedings.
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17. We find there are no specific pleadings and/or any averments made as to how
the change brought in under the Rule of 2018 to have the seniority of the
candidates district wise makes the ratio rendered in Protiva Devi (supra) to be
inapplicable to the facts of the present case.
18. Any Rule or provision of Statute cannot be casually declared to be
constitutionally invalid. Any Rule or Statute to be declared to be constitutionally
invalid must offend any fundamental right, or must be in conflict with any law
which is an existence prior to incorporation of such a Rule or Statute or that the
authority who had incorporated the Rule or Statute was not empowered to do so.
19. A careful perusal of the pleadings reveals that no such grounds have been
urged by the writ petitioners. The only ground urged is that by virtue of the cadre
of Assistant Headmaster although being a distinct cadre being included in the cadre
of Graduate Teacher for the purposes of determining the seniority from the date of
receipt of Graduate Scale of Pay, the impugned Rule has infringed Articles 14 and
16 of the Constitution of India and is thereby ultra vires the Constitution of India.
Although, there is no dispute that the cadre of Assistant Headmaster and the cadre
of Graduate Teacher are two distinct cadres and the cadre of Assistant Headmaster
is also a higher cadre, however taking note of the ratio laid down in Kripa Sindhu
Das (supra) rendered by Co-ordinate Bench of this Court, it cannot be said that this
is without any purpose or that the clubbing of the two posts for the purposes of
the seniority has been deliberately made to deprive the benefit accrued to an
Assistant Headmaster. The petitioners have failed to demonstrate as to how the
ratio laid down in Kripa Sindhu Das (supra) justifying the clubbing of these two
cadres for the limited purpose of selection to the post of Headmaster as a feeder
cadre is not applicable to the present proceedings. The petitioners have failed to
demonstrate that the ratio laid down in Kripa Sindhu Das (supra) is also not
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applicable to the Rules of 2018 in view of the fact that the seniority of the
candidates is to be determined district wise as opposed to the school wise seniority
under the erstwhile Rules of 2003. Under such circumstances, we are unable to
accept the contentions raised by the petitioner that the ratio of the Co-ordinate
Bench rendered in Kripa Sindhu Das (supra) and followed in Protiva Devi (supra) is
not applicable to the facts of the present case. Rather, we find that notwithstanding
the change brought in by the Rules of 2018 in respect of district wise seniority, the
ratio laid down in Kripa Sindhu Das (supra) and followed in Protiva Devi (supra) is
squarely applicable to the facts of the present proceedings.
20. Having given our anxious thoughts to the pleadings as well as the contentions
raised by the parties before this Court, we find that the ratio in Kripa Sindhu Das
(supra) and followed in Protiva Devi (supra) is also squarely applicable to the facts
of the present proceedings and we are not persuaded to take a different view. We,
therefore, find no merit in the present writ petition and the same is therefore
dismissed. No order as to cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
