Gauhati High Court
Hitesh Kumar Sarma vs The State Of Assam And 3 Ors on 20 May, 2022
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GAHC010093932022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3265/2022
HITESH KUMAR SARMA
S/O- LATE KANAK CHANDRA SARMA
R/O- VILLAGE BOJNAOJA AULACHOWKA
DIST- DARRANG
PIN-784125
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, DEPT. OF SECONDARY EDUCATION, DISPUR, GUWAHATI-6
2:THE ADDL. SECRETARY
TO THE GOVT. OF ASSAM
DEPT. OF SECONDARY EDUCATION
DISPUR
GUWAHATI-6
3:THE DIRECTOR
OF EDUCATION
BODOLAND TERRITORIAL COUNCIL
KOKRAJHAR
ASSAM
4:THE INSPECTOR OF SCHOOLS
SANKAR NAGAR ROAD
UDALGURI
ASSAM
PIN-78450
Advocate for the Petitioner : MR. U K NAIR
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Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Date : 20-05-2022
JUDGMENT & ORDER (ORAL)
Heard Mr. UK Nair, learned senior counsel for the petitioner. Also heard Mr. R
Majumdar, learned counsel for the respondents No.1 and 2 being the authorities
under the Secondary Education Department, Government of Assam and Mrs. RB
Bora, learned counsel for the respondents No.3 and 4 being the authorities in
the Education Department of the BTC.
2. The petitioner was appointed as a science graduate teacher in the
Kathalguri ME School, Udalguri as per the order dated 09.06.1992. At the
relevant point of time, when the petitioner was appointed he was appointed on
a regular basis in a ME School which was already provincialised under the law.
Thereafter, the petitioner was transferred in the same capacity to the Paneri ME
School, Udalguri in the year 1994.
3. Under the Shiksha Khetra Scheme, Paneri ME School, Udalguri stood
amalgamated with the Paneri Girls' High School, Udalguri on 27.02.2017 and
was renamed as Pub Paneri High School, Udalguri. It is given to be understood
that the teachers of the Paneri Girls' High School, Udalguri were provincialised
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under Assam Venture Educational Institutions (Provincialisation of Services) Act,
2011, (for short, the Act of 2011) and accordingly it is accepted that they were
provincialised w.e.f. 01.01.2013. The Additional Secretary to the Government of
Assam in the Education Department has issued a communication dated
23.02.2022 which is extracted as below:
".....With reference to the subject cited above, I am directed to inform
you that in respect of the schools provincialised in the year 2013, the
graduate teachers of these schools have not completed minimum 10 years
of service as on date which is mandatory for promotion to the post of
Headmaster as per Rule 14(2)(b) of Assam Secondary Education
(Provincialised Schools) Service Rule 2018 and teachers of these schools
(provincialised in the year 2013) shall be completing 10 years of minimum
service on 01.01.2023 and therefore the schools provincialised in the year
2013 should be kept out of the purview of promotion of the regular
headmasters which is under process till 31/12/2022 and until further
orders.
This has the approval of the competent authority."
4. A reading of the extracted portion of the communication dated 23.02.2022
makes it discernible that in respect of such schools which were provincialised in
the year 2013 where the graduate teachers have not completed minimum of 10
years of service from the date of provincialisation would be kept out of the
purview of promotion on a regular basis to the post of Headmaster. Otherwise,
we have not noticed any infirmity in the said communication inasmuch as, the
provision thereof appears to be in conformity to Rule 14(2)(b) of the Assam
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Secondary Education (Provincialised Schools) Service Rules 2018 which has
been referred therein. But in the instant case, the factual matrix is that the
petitioner was appointed in the year 1992 in a provincialised school and his
services were on a regular basis for all other purpose. It only happened that the
ME school where he was working stood amalgamated with the High School
which was provincialised from the year 2013. The service condition imposed by
the impugned communication dated 23.02.2022 in respect of those graduate
teachers whose services were provincialised in the year 2013 cannot be made
applicable to the petitioner who has been serving since the year 1992 in a
provincialised school and on a regular basis. If it is done, Article 14 of the
Constitution of India would be violated to the extent that two classes of people
having a reasonable classification with an intelligible differentia with the object
at hand would be brought within the same classification.
5. With the above observation, we direct the Additional Secretary to the
Government of Assam in the Education Department to re-visit the
communication dated 23.02.2022 in respect of those teachers who may have
been amalgamated with a high school which was provincialised from the year
2013, but on their own facts were working in a provincialised school and on a
regular basis from a period prior to the year 2013.
6. A reasoned order be passed within a period of 15(fifteen) days from the
date of receipt of a certified copy of this order and after carving out such
category of teachers, the bar imposed by the communication dated 23.02.2022
be not made applicable to them.
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7. It has been brought to the notice of this Court that the communication
dated 23.02.2022 has the approval of the competent authority. If it is so, the
order be passed as indicated above be either by the competent authority or by
the Additional Secretary with prior approval of the competent authority, but any
such order that may be passed either by the Additional Secretary or by the
competent authority shall not violate Article 14 as indicated above.
8. Any other consequential order that may have been passed or to be passed
shall also be read in conformity with the order that is required to be passed as
indicated above.
9. Writ petition stands disposed of in the above terms.
JUDGE
Comparing Assistant
