Suleman Ali vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1461 Gua

                                                             Page No.# 1/6

GAHC010053762022




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

                         Case No. : WP(C)/1675/2022




         SULEMAN ALI
         S/O. LT. ABDUR RAHMAN
         VILL. PUB CHUBA
         P.O. KHARUPETIA
         P.S. DHULA
         DIST. DARRANG
         ASSAM
         PIN-784115.


          VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
         SECONDARY EDUCATION DEPTT.
         DISPUR
         GUWAHATI
         ASSAM
         PIN-781006.

         2:THE DIRECTOR OF SECONDARY EDUCATION

         ASSAM
         KAHILIPARA
         GUWAHATI
         PIN-781019.
         3:THE INSPECTOR OF SCHOOLS

         DARRANG DISTRICT CIRCLE
         MANGALDOI
         P.O. AND P.S. MANGALDOI
         DIST. DARRANG
                                                                        Page No.# 2/6

            ASSAM
            PIN-784125.
            4:THE THEN PRINCIPAL

            KHARUPETIA H.S. SCHOOL
            P.O. ND P.S. KHARUPETIA
            DIST. DARRANG
            ASSAM
            PIN-784115.
            5:KISHORE KUMAR SHARMA BAURA

            SANSKRIT TEACHER
            KHARUPETIA H.S. SCHOOL
            P.O. ND P.S. KHARUPETIA
            DIST. DARRANG
            ASSAM
            PIN-784115.
            ------------
            Advocate for : MR. M K HUSSAIN
            Advocate for : SC
            SEC. EDU. appearing for THE STATE OF ASSAM AND 4 ORS



                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                      ORDER

Date : 06-05-2022

Heard Mr. M.K. Hussain, learned counsel for the petitioner and Mr. R. Mazumder, learned Standing counsel for the Secondary Education Department representing the respondent Nos. 1, 2 and 3. I have also heard Mr. T.J. Mahanta, learned counsel for the respondent No. 5 assisted by Mr. T. Gogoi.

2. The instant writ petition has been filed by the petitioner challenging the order dated 28.02.2022 whereby the respondent No. 5 was allowed to hold the charge of Principal In-charge of Kharupetia Higher Secondary School, Darrang along with financial power to draw Page No.# 3/6

and disburse the salary etc. of the staff of the school in addition to his normal duties as Assistant Teacher under F.R. 49 (C) vice Sri Urmimala Bora Borthakur, Principal retired on 28.02.2022.

3. The case of the petitioner is that while the petitioner is a post- graduate the respondent No. 5 is a graduate teacher and as such taking into consideration Rule 3 of the Assam Secondary Education (Provincialized Schools) Service Rules, 2018 (for short the 'Rules of 2018'), the petitioner falls in Class-II whereas a graduate teacher like the respondent No. 5 falls in Class-III. Basing upon the said Rule 3 of the Rules of 2018, it is the contention of the petitioner that the petitioner should have been allowed to hold the charge of the Principal In-charge of the Kharupetia Higher Secondary School.

4. On the other hand, Mr. T.J. Mahanta, learned Senior counsel submits that what is required to be taken note of is that the person who holds the charge of Principal In-charge has to be qualified and eligible to be a Principal and this aspect of the matter can be seen from Rule 12 of the Rules of 2018 which stipulates the minimum qualifications for appointment to the post of Principal in Higher Secondary School and Senior Secondary School. Mr. Mahanta further submits that for a candidate who have rendered at least 15 years of service as a Post Graduate Teacher in any Provincialized Higher Secondary School/Senior Secondary School or a candidate having 17 years of teaching experience as a Graduate Teacher in any Higher Secondary School would be qualified to be eligible for appointment to the post of the Principal and as such, both the petitioner as well as the respondent No. 5 are eligible to be appointed to the post of the Principal of any Higher Secondary School Page No.# 4/6

and Senior Secondary School. Under such circumstances, when both the candidates are qualified, seniority has to be taken into consideration and in that regard, he draws the attention of this Court to two judgments of this Court rendered in the case of Amanul Islam v. State of Assam & Ors. reported in (2016) 4 GLR 390 and Faizur Rahman V. State of Assam & Ors. reported in (2015) 3 GLR 605 to contend when both the candidates are eligible, the seniority shall be the guiding factor.

5. I have heard the learned counsel for the parties and perused the materials on record.

6. A perusal of Rule 3 of the Rules of 2018 stipulates the various classes and cadres of services in provincialized schools but the said Rule does not stipulate that the preference to given from the candidate who is in Class-II from Class-III as regards appointment. Therefore, this Court would have to refer to Rule 12 which is the Rule pertaining to recruitment to the Principal and the procedure thereof. Sub-rule (3) of Rule 12 stipulates the minimum qualification for appointment to the post of Principal in Higher Secondary School and Senior Secondary School. The said Sub-rule (3) of Rule 12 for sake of convenience is quoted herein below:

"Rule.12(3): The minimum qualifications for appointment to the post of the Principal in Higher Secondary School and Senior Secondary School shall be as follows:

(i) The candidate must be M.A/M.Sc/M.Com with B.T/B.Ed degree from any recognized University having uniform good academic career. In respect of Hindi Teacher having degree qualification, the Hindi 'Parangat' and 'Nishanat' shall be considered instead of B.T/B.Ed;

(ii) The candidate must have rendered at least 15 years of service as Post Graduate Teachers in any of the provincialised Higher Secondary/Senior Secondary School; or

(iii) The candidate must have rendered at least 5 years of service as Vice- Principal in any of the provincialised Higher Secondary School; or Page No.# 5/6

(iv) The candidate must have 17 years of teaching experience as Graduate Teacher in any Higher Secondary School,

(v) Age of the candidates must not be more than 57 years as the first January of the year of recruitment:

Provided that the service and teaching experience acquired in a School during provincialised period shall be counted. The period rendered prior to provincialisation of the School shall not be counted.

(vi) The candidate must possess commanding personality, administrative ability, leadership skills and integrity."

7. Clause (i) of Sub-rule (3) of Rule 12 stipulates that the candidate must have a particular educational qualification for the purpose of appointment to the post of the Principal. Clause (ii), (iii) and (iv) of Sub- rule 3 of Rule 12 stipulates the experience. While Clause (ii) relates to Post Graduate Teachers having at least 15 years of service, Clause (iii) relates to a candidate who has been a Vice-Principal for at least 5 years of service in any provincialized Higher Secondary School and Clause (iv) relates to a Graduate Teacher having 17 years of teaching experience. The use of the word 'or' in between Clauses (ii), (iii) and (iv) of Sub-Rule 3 of Rule 12 stipulates that either of the said experience would be deemed to be the required experience qualification for the post of the Principal. In the instant case, it being an admitted fact that the petitioner as well as the respondent No. 5 are qualified in terms with Clause (ii) and Clause (iv) Sub-rule (3) of Rule 12 respectively. The question which needs, therefore, to be looked into is as to whether the issuance of the order dated 28.02.2022 is required to be interfered with. The judgments placed the by the Senior counsel of the Coordinate Bench of this Court show that when the persons are duly qualified, seniority would be the guiding factor. Admittedly the respondent No. 5 is senior to the petitioner as per the materials placed before this Court and consequently, this Court Page No.# 6/6

is, therefore, of the opinion that no interference is called for to the order dated 28.02.2022 impugned in the instant proceedings. Consequently, the petition being devoid of any merit is liable to be dismissed. Interim order if any stands vacated.

8. Before parting with the record, this Court directs that the respondent authorities should take appropriate steps for filling up the post of Principal of Kharupetia Higher Secondary School by regular appointment at the earliest opportunity and not later than three months from the date of this order. A copy of the instant order be furnished to Mr. R. Mazumder, the learned counsel for the Secondary Education Department for necessary compliance.

JUDGE

Comparing Assistant