Gauhati High Court
Page No.# 1/38 vs The State Of Assam And 2 Ors on 20 November, 2024
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/38
GAHC010284372019
2024:GAU-AS:11304
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8682/2019
KRISHNA KANTA DEBNATH
S/O HIRENDRA CHANDRA DEBNATH, ASSISTANT GRADUATE TEACHER,
MA, B.ED., VIDYAMANDIR HIGHER SECONDARY SCHOOL, PANDU, R/O-
VILL. JOYMATI NAGAR, PANDU, KAMRUP(M), GHY.- 781012, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF
EDUCATION (SEC.), ASSAM (CIVIL) SECRETARIAT, BLOCK-C, DISPUR,
GHY., ASSAM,PIN- 781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY.-781019.
3:THE NATIONAL COUNCIL FOR TEACHER EDUCATION
EASTERN REGIONAL COMMITTEE
REP. BY ITS REGIONAL DIRECTOR
15 NILAKANTA NAGAR
NAYAPALLI
BHUBANESWAR
ORISSA
PIN- 751012
Advocate for the Petitioner : MR. A K DUTTA, MR. K N CHOUDHURY,MR. U SARMA,MR. B
PURKAYASTHA,MR. B PURKAYASTHA
Advocate for the Respondent : SC, SEC. EDU., SC, N C T E
Page No.# 2/38
Linked Case : WP(C)/840/2018
PRABHASH KUMAR SARMA
VILLAGE GOALPARA
PO BELSOR
PS BELSOR
DIST. NALBARI
ASSAM
ASSISTANT TEACHER
KAKAYA HIGHER SECONDARY SCHOOL
NALBARI
2: NAGEN CHANDRA HALOI
VILLAGE- JHUTIKATA
PO BORI
PS BELSOR
DIST. NALBARI
ASSAM
PIN-781338
ASSISTANT TEACHER
SOLMARA HIGHER SECONDARY SCHOOL
NALBARI
VERSUS
THE STATE OF ASSAM
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-6
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SECONDARY EDUCATION DEPARTMENT
DISPUR
GUWAHATI-06
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19
4:THE INSPECTOR OF SCHOOLS
NALBARI DISTRICT CIRCLE
NALBARI
ASSAM
------------
Advocate for : MR A R BHUYAN
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM
Page No.# 3/38
Linked Case : WP(C)/5480/2019
IBRAHIM KHAN AND ANR.
MA
B.ED
ASSTT. TEACHER
PALHAZI HIGHER SECONDARY SCHOOL
P.O. PALHAZI
DIST- BARPETA
ASSAM
PIN- 781309
2: MADHURI BORTHAKUR
B.SC.
M.A
B.ED
ASSTT. TEACHER
MALLOW ALI HIGHER SECONDARY SCHOOL
P.O. DHEKARGARH
DIST- JORHAT
PIN- 785001
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM
DISPUR
GHY-6
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY-6
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
4:THE NATIONAL COUNCIL FOR TEACHER EDUCATION (NCTE)
EASTERN REGIONAL COMMITTEE
REPRESENTED BY ITS REGIONAL DIRECTOR
15 NEELAKANTHA NAGAR
NAYAPALLI BHUBANESWAR
ORISSA PIN 751012
------------
Advocate for : MR. S K DAS
Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS.
Page No.# 4/38
Linked Case : WP(C)/5992/2019
SHAHUD AHMED BARLASKAR
S/O- LT. SHAMSUL HAQUE BARLASKAR
ASSISTANT TEACHER
MA B.ED. DN HIGHER SECONDARY SCHOOL
UDHARBOND
R/O VILL. DURGANAGAR PART-III
P.O. AND P.S. UDHARBOND
DIST. CACHAR
ASSAM
PIN- 788030.
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF EDUCATION (SECONDARY)
ASSAM (CIVIL) SECRETARIAT
BLOCK-C DISPUR GUWAHATI
ASSAM. PIN- 781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019.
3:THE INSPECTOR OF SCHOOLS
CACHAR DISTRICT CIRCLE
SILCHAR DIST. CACHAR
ASSAM. PIN- 788001.
4:THE PRINCIPAL
DN HIGHER SECONDARY SCHOOLS
UDHARBOND
DIST. CACHAR
ASSAM PIN- 788030.
5:THE NATIONAL COUNCIL FOR TEACHER EDUCATION
EASTERN REGIONAL COMMITTEE
REP. BY ITS REGIONAL DIRECTOR
15 NILAKANTA NAGAR
NAYAPALLI
BHUBANESWAR
ORRISA PIN- 751012.
------------
Advocate for : MR. A K DUTTA
Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 4 ORS.
Page No.# 5/38
Linked Case : WP(C)/571/2022
CHAND MOHOMMAD ALI AND 7 ORS
S/O LATE CHAFER ALI
R/O VILL-PAHLONGPARA
P.S.-BELSOR
P.O.-CHAMATA
DIST-NALBARI
ASSAM
PIN-781304
ASSISTANT TEACHER IN SOLMARA HIGHER SECONDARY SCHOOL
2: MANOJ CHAKRABORTY
S/O RAJEN CHAKRABORTY
R/O GAMARIMURI
P.S.-BELSOR
P.O.-GAMARAMURI
DIST-NALBARI
PIN-781306
ASSISTANT TEACHER IN CHAMATA HIGHER SECONDARY SCHOOL
3: IKBAL HUSSAIN
S/O SRI ABDUL HAKIM
R/O VILL-BAHABARI
P.O.-KHARUPETIA
DIST-DARRANG
ASSAM
PIN-794115
ASSISTANT TEACHER IN BECHIMARI HIGHER SECONDARY SCHOOL
4: ANJALI DEKA
S/O LATE KHIMADHAR DEKA
R/O DARRANG
P.O.-DARRANG
DIST-DARRANG
ASSAM
PIN-784525
ASSISTANT TEACHER IN OUTALA HIGHER SECONDARY SCHOOL
5: SANTANU TALUKDAR
S/O LATE KUMUD CH. TALUKDAR
R/O VILL-PATIDOIVERELA
P.S.-MISSAMARI
P.O.-GARUBANDHA
DIST-SONITPUR
ASSAM
PIN-784506
ASSISTANT TEACHER IN MISSAMARI HIGHER SECONDARY SCHOOL
Page No.# 6/38
6: RABIN SARMA
S/O GOLAK CH. SARMA
R/O VILL-NO. 1 BAMUNPARA
P.O.-MANGOLDOI
P.S.-MANGOLDOI
DIST-DARRANG
PIN-784125
ASSISTANT TEACHER IN DEOMORNOI HIGHER SECONDARY SCHOOL
7: GANESH KALITA
S/O KALICHARAN KALITA
R/O BALIKURIA
P.S.-NALBARI
P.O.-NALBARI
PIN-781335
ASSISTANT TEACHER IN R.N.C H.S. MUKALMUAH
8: HARKANTA KALITA
S/O LATE SANTIRAM KALITA
VILL-KAYAHI
P.O.-SANTIPUKHURI
DIST-NAGAON
ASSAM
PIN-784144
ASSISTANT TEACHER IN BARHAMPUR H.S. SCHOOL
VERSUS
THE STATE OF ASSAM AND 6 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM
EDUCATION (SECONDARY) DEPARTMENT
DISPUR
GUWAHATI-781006
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
SECONDARY EDUCATION DEPARTMENT DISPUR GUWAHATI-781006
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM KAHILIPARA GUWAHATI-781019
4:THE INSPECTOR OF SCHOOLS
NALBARI CIRCLE
AT NALBARI
DIST- NALBARI
ASSAM
PIN-784175
Page No.# 7/38
5:THE INSPECTOR OF SCHOOLS
NAGAON CIRCLE
DIST-NAGAON
ASSAM-784144
6:THE INSPECTOR OF SCHOOLS
SONITPUR CIRCLE
DIST-SONITPUR
ASSAM-784506
7:THE INSPECTOR OF SCHOOLS
DARRANG CIRCLE
DIST-DARRANG
ASSAM-784525
------------
Advocate for : MR H BEZBARUA
Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 6 ORS
Linked Case : WP(C)/4250/2020
SYED USUF ALI
S/O- LT. ACHAD ALI
ASSTT. TEACHER
KACHARI MAHAL HIGH SCHOOL
MADHUKUCHI
R/O- VILL- ATHARA
P.O. PUTHIMARI
P.S. RANGIA
DIST.- KAMRUP
ASSAM
IN- 781380
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPT. OF EDUCATION(SECONDARY)
ASSAM (CIVIL) SECRETARIAT
BLOCK-C
DISPUR
GHY
ASSAM
PIN- 781006
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM KAHILIPARA GHY-19
Page No.# 8/38
3:THE INSPECTOR OF SCHOOLS
KAMRUP DADARA GHY ASSAM
4:THE NATIONAL COUNCIL FOR TEACHER EDUCATION
EASTERN REGIONAL COMMITTEE
REP. BY ITS REGIONAL DIRECTOR
15 NILAKANTHA NAGAR
NAYAPALLI
BHUBANESWAR
ORISSA
PIN- 781012
------------
Advocate for : MR. A K DUTTA
Advocate for : SC N C T E appearing for THE STATE OF ASSAM AND 3 ORS
Linked Case : WP(C)/7959/2017
PARTHA SARATHI CHOUDHURY and 3 ORS.
ASSTT. TEACHER
INDRA KUMARI GIRLS' H.S. SCHOOL
HAILAKANDI
P.O.
P.S. and DISTRICT HAILAKANDI
ASSAM.
2: AFTAB UDDIN LASKAR
ASSTT. TEACHER
ALGAPUR PUBLIC H.S. SCHOOL
ALGAPUR
P.O. KALIBARI BAZAR
P.S. ALGAPUR
DISTRICT HAILAKANDI
ASSAM.
3: ANAMUL HAQUE BARBHUIYA
ASSTT. TEACHER
PUBLIC H.S. SCHOOL
HAILAKANDI
P.O.
P.S. and DISTRICT HAILAKANDI
ASSAM.
4: NURUL ISLAM LASKAR
ASSTT. TEACHER
P.K. GIRLS' H.S. SCHOOL
LALA P.O. P.S. LALA
DISTRICT HAILAKANDI
ASSAM.
Page No.# 9/38
VERSUS
THE STATE OF ASSAM and 3 ORS.
TO BE REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR ASSAM GUWAHATI-06.
2:THE COMM. and SECY. TO THE GOVT. OF ASSAM
DEPTT. OF SECONDARY EDUCATION
DISPUR ASSAM GUWAHATI-06.
3:THE DIRECTOR SECONDARY EDUCATION ASSAM
KAHILIPARA GHY-19.
4:THE INSPECTOR OF SCHOOLS H.D.C. HAILAKANDI
P.O. P.S. and DISTRICT HAILAKANDI ASSAM.
------------
Advocate for : MRA R BHUYAN
Advocate for : SC
SECONDARY EDUCATION appearing for THE STATE OF ASSAM and 3 ORS.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of hearing : 07.11.2024
Date of Judgment & Order : 20.11.2024
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair, J.)
Heard Mr. K. N. Choudhury, learned senior counsel, assisted by Mr. B.
Purkayastha, learned counsel, as well as Mr. S. K. Das, learned counsel,
appearing on behalf of their respective petitioners in these writ petitions.
Also heard Mr. N. Das, learned Government Advocate, Assam; Mr. Rajesh
Mazumdar, learned standing counsel, Secondary Education Department;
and Mr. I. Alom, learned standing counsel, National Council for Teacher
Education (NCTE), appearing on behalf of their respective respondents in all
these writ petitions.
Page No.# 10/38
2. In WP(c)7959/2017, WP(c)840/2018, WP(c)5480/ 2019,
WP(c)5992/2019, and WP(c)571/2022; a challenge was made with regard
to the provisions of Rule 14(1) of the Assam Secondary Education
(Provincialized) Service Rules, 2003. While in WP(c)8682/2019 and
WP(c)4250/2020; the provisions of sub-rules 2(i) and 2(p) of Rule 2 and
Rule 13 of the Assam Secondary Education (Provincialized Schools) Service
Rules, 2018, is under challenge.
3. At the outset, it is to be noted that the provisions of Assam Secondary
Education (Provincialized) Service Rules, 2003, was repealed by the
provisions of Rule 35 of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, and as on date; it is the provisions of the
said Rules of 2018, which is holding the field. Accordingly, the Rules of
2003, being already repealed, no further consideration would be called for
in WP(c)7959/2017, WP(c)840/2018, WP(c)5480/2019, WP(c)5992/2019,
and WP(c)571/2022, and consequently, all the above-noted writ petitions,
would stand closed.
4. The present order is confined to the consideration of the challenge as
made by the petitioners in WP(c)8682/2019, and WP(c)4250/2020, to the
provisions of sub-Rules 2(i) and 2(p) of Rule 2 and Rule 13 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018.
5. The petitioners, herein, by way of instituting the above-noted 2(two)
writ petitions, have assailed the provisions of sub-rules 2(i) and Rule 2(p)
of Rule 2 of the said Rules of 2018, to the extent that while defining the
terms Graduate Teacher and Post Graduate Teacher in the said Rules; it
Page No.# 11/38
was not prescribed that for appointment against the said posts, along with
the educational qualification prescribed; B.Ed. Degree was also mandatory.
The petitioners have further presented a challenge to the provisions of Rule
13 of the Assam Secondary Education (Provincialized Schools) Service
Rules, 2018, which relates to recruitment to the post of Vice-Principal to
the effect that the qualification so prescribed for recruitment against the
said post, do not mandate the incumbent to possess the B.Ed. Degree
which was contended to be mandatory in terms of the National Council for
Teacher Education (NCTE) guidelines.
6. The challenge of the petitioners in the above-noted 2(two) writ
petitions is that B.Ed./B.T. Degree is an essential educational qualification
for recruitment as Graduate Teacher and as Post Graduate Teacher under
the provisions of the Assam Secondary Education (Provincialized Schools)
Service Rules, 2018, and the post of Vice-Principal being a promotional
post from the posts of Graduate Teacher as well as Post Graduate Teacher;
the non-prescription of the qualification of B.Ed./B.T. Degree as one of the
essential conditions requisite to be possessed by an incumbent in the
feeder cadre for promotion to the post of Vice-Principal, is contrary to the
provisions of the said Rules of 2018 as well as the prescriptions made in
this connection by the National Council for Teacher Education (NCTE)
authorities.
7. In the above-referred writ petitions; there is hardly any factual
controversy which would require a detailed factual narration for the
purpose of adjudication of these writ petitions. Accordingly, the individual
particulars of the petitioners disclosed in these writ petitions, is not
Page No.# 12/38
reproduced herein.
8. A challenge as noticed hereinabove to the relevant provisions of the
Assam Secondary Education (Provincialized Schools) Service Rules, 2018, a
background leading to the enactment of the said Rules of 2018, would be
called for.
9. In the year 2003; the State decided to introduce a new set of Rules to
regulate the recruitment and conditions of services of persons appointed to
the Assam Secondary Education (Provincialized) Service. Accordingly, in
exercise of the powers conferred by the proviso to Article 309 to the
Constitution of India; the Governor of Assam made the Assam Secondary
Education (Provincialized) Service Rules, 2003. The relevant provisions of
the said Rules of 2003 pertinent to the issue arising in the present
proceedings, is extracted hereinbelow:
"3. Classes and Cadres - (1) The service in provincialized School shall consist of the
teaching and non-teaching staff. The teaching staff shall consist of following classes
and cadres, each one of those constituting a distinct and separate cadre as on the
commencement of these rules, namely:-
(a) Class II (Senior): It includes the cadres of-
(1) Principal;
(ii) Vice-Principal;
(ii) Post-Graduate Teacher;
(w) Headmaster/Superintendent;
******************************************************************************
14. Recruitment to the Post of Vice-Principal/Head Master/Head
Mistress/Superintendent/Asstt. Head Master/Asstt. Head Mistress of High/HS/HS & MP
School-
(1) The Post of Vice-Principal shall be filled up by promotion on the basis of
combined seniority in the School among the Graduate and Post-Graduate
Teachers with minimum 10 (ten) years of teaching experience in case of Post
Graduate Teachers and 12 years teaching experience, in case of Graduate
Teacher subject to satisfactory Annual Confidential Report for 3(three)
consecutive years. Selection shall made on the basis of recommendation of the
State Selection Board. The seniority of teachers in the Schools shall be
determined as per provision under Rule 24 (1)."
Page No.# 13/38
10. A perusal of the provisions of Rule 14 of the Assam Secondary
Education (Provincialized) Service Rules, 2003, would go to reveal that the
recruitment to the post of Vice-Principal was to be so effected by way of
promotion on the basis of combined seniority in the school amongst the
Graduate Teachers and Post Graduate Teachers with minimum 10 years of
teaching experience in case of the Post Graduate Teachers and minimum 12
years of teaching experience in case of Graduate Teachers subject to
satisfactory Annual Confidential Reports for three consecutive years. The
provisions of the said Assam Secondary Education (Provincialized) Service
Rules, 2003, does not mandate possession by an incumbent in the feeder
cadre of a B.Ed./B.T. Degree for recruitment to the post of Vice-Principal.
11. The said Rules of 2003, was further amended vide the Assam
Secondary Education (Provincialized) Service (Amendment) Rules, 2012.
While the recruitment qualifications for the post of Principal in a Higher
Secondary School was amended and substituted by requiring the
incumbent to possess a Post Graduate Qualification with B.Ed./B.T. Degree
as the minimum requisite educational qualification; the provisions for
recruitment to the post of Vice-Principal in a Higher Secondary School as
provided for in the original Rules of 2003, was not amended. Further, B.Ed.
qualification came to be mandated as a requisite qualification for the post
of Graduate Teacher/Post Graduate Teacher in a Secondary/Senior
Secondary School. The said Rules of 2003, continued to hold the field till
the enactment of the Assam Secondary Education (Provincialized Schools)
Service Rules, 2018. The provisions of Rule 35 of the said Rules of 2018,
proceeded to repeal the Assam Secondary Education (Provincialized)
Service Rules, 2003, along with any order and/or Notification corresponding
to those Rules.
Page No.# 14/38
12. The provisions of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, under challenge in the present proceedings,
being relevant, are extracted hereinbelow:
"2. Definitions - In these rules, unless there is anything repugnant in the subject or
context, -
*************************************************************************************************
(i). "Graduate Teacher" means and includes the category of (Assistant Teacher,
Classical teacher of Higher Secondary or Senior Secondary (erstwhile Junior College)
or High Madrassa or a High School including amalgamated Higher Secondary and
Senior Secondary and High Schools for whose appointment the minimum qualification
is Graduate in Arts/Science/Commerce from recognized University including
Demonstrators of a provincialised Higher Secondary School or a Senior Secondary
School;
****************************************************************************************************
(p) "Post Graduate Teacher" means the category of Post Graduate Teachers in the
Subject of Arts/Science/ Commerce stream, vocational stream including the
Commercial Computer Application of a Higher Secondary School, Senior Secondary
School for whose appointment the minimum qualification is Post-Graduate Degree in
Arts/Science/Commerce or in vocational subject from recognized University for
imparting education minimum from class IX to XII and such other classes as may be
assigned by the Principal of the School;
****************************************************************************************************
13. Recruitment to the Post of Vice Principal and selection procedure thereof:
(1) The Post of the Vice Principal of a Higher Secondary School shall be filled up by
promotion on the basis of combined seniority in the concerned School from the
candidates amongst the Post-Graduate Teachers and Graduate Teachers on the
recommendation of the District Promotion Committee constituted under Rule 16(4),
and as per eligibility criteria under sub-rule (2).
(2) Eligibility for the Post of Vice Principal in Higher Secondary School shall be as
follows:-
(a) He must be M.A/M.Sc/M.Com from any recognized University;
(b) He must have at least 10 years of teaching experience as Post Graduate
Teacher or 12 years of teaching-experience as Graduate Teacher in a Higher
Secondary School;
(c) In case of amalgamated Higher Secondary School, the Headmaster of ME/MV
School having requisite qualification and working as ex-officio Vice-Principal in
the scale of pay of substantive Post held by them and 10 years of experience as
Headdmaster/Ex-officio Vice- Principal in both ME/MV and amalgamated school
may also be eligible for selection as Vice Principal:
Provided that their service shall be counted from the date of getting
Graduate scale of pay in their earlier school if otherwise eligible.
Page No.# 15/38
(d) In case of amalgamated Higher Secondary School, the Assistant Teacher of
ME/MV School having requisite qualification and 15 years of teaching
experience in both ME/MV and amalgamated school, may also be eligible for
selection as Vice Principal;
(e) In case of a Higher Secondary School having amalgamation with LP School,
the teacher of erstwhile LP school having requisite qualification and 20 years
of teaching experience in both LP and amalgamated school may also be eligible
for selection as Vice Principal;
(3) The selection shall be based on satisfactory Annual Confidential Report for
last 3 consecutive years and seniority of service in Graduate Scale of pay as per
procedure provider under sub-rule (4).
(4)(i) Before the end of the year the Inspector of Schools shall make an
assessment of the number of vacancies to be occurred in the cadres of Vice
Principal to be filled up by promotion in the next year;
(ii) The Inspector of Schools shall call particulars in the prescribed format from
the eligible candidates/teachers of the School for filling up of the vacancies
through promotion. The Member-Secretary shall receive the applications from
candidates and submit them to the District Promotion Committee constituted
under Rule 16(4);
(iii) The District Promotion Committee shall verify the records pertaining to
seniority and merits and prepare the select list equal to the number of
vacancies;
(iv) The select list so prepared by the District Promotion Committee shall be
submitted to the Director who shall after necessary verification as may be
required, approve the select list and publish the same in the office notice Board
or in such other places as the Director may consider fit and proper;
(v) After receipt of approval of the Director on the select list, the Inspector of
School shall issue promotion order from the approved select list;
(vi) The select list so prepared and approved shall be in force for one year from
the date of approval."
13. A perusal of the provisions of Rule 13 as incorporated in the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018,
pertaining to the recruitment to the post of Vice-Principal in a Higher
Secondary School, would go to reveal that the educational qualification
mandated to be possessed by a person for recruitment against the said
post of Vice-Principal; does not mandate possession of a B.Ed./B.T. Degree.
Page No.# 16/38
14. As noticed hereinabove; the feeder cadre for promotion to the post of
Vice-Principal is the cadres of Graduate Teacher and Post Graduate Teacher.
The Assam Secondary Education (Provincialized Schools) Service Rules,
2018, for the purpose of recruitment to the post of Graduate Teacher and
Post Graduate Teacher, prescribes the requisite educational qualification in
Schedule-III of the said Rules of 2018. The requisite educational
qualification as prescribed for recruitment to the posts of Graduate Teacher
and Post Graduate Teacher under the provisions of Schedule-III of the said
Rules of 2018, being relevant, are extracted hereinbelow:
"Schedule-III
[See Rules 10(1)(2)]
Minimum educational and professional qualifications for direct recruitment in the
Post of:
(i) Post Graduate Teacher:- Post Graduation with at least 50% marks (or its equivalent)
from recognized University and Bachelor of Education (B.Ed.) from National Council
for Teacher Education recognized institution, but degrees obtained from off-campus
and distance education institution shall not be considered as valid;
(ii) Graduate Teacher:- Graduate/Post Graduate from recognized University with at
least 50% marks in either Graduation or Post Graduation (or its equivalent) and
Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized
institution, but degrees obtained from off-campus and distance education institution
shall not be considered as valid;"
15. A perusal of the educational qualification as prescribed for the posts of
Post Graduate Teacher and Graduate Teacher reveals that along with the
Post Graduate qualification and/or Graduate qualification as prescribed; an
incumbent must necessarily possess the B.Ed. Degree from a National
Council for Teacher Education (NCTE) recognized institution. Further, the
next higher post than that of the post of the Vice-Principal, in the hierarchy,
as per the provisions of Rule 3 of the said Rules of 2018, in respect of a
Higher Secondary School, is the post of Principal.
Page No.# 17/38
16. Rule 12 of the Assam Secondary Education (Provincialized Schools)
Service Rules, 2018, while providing that a post of the Principal shall be
filled up by way of direct recruitment; the educational qualification
prescribed for the said post under the provisions of Rule 12(3)(i), is, as
under:
"12. Recruitment to Principal and procedure thereof:-
(3) The minimum qualifications for appointment to the post of 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;"
17. In terms of the provisions of Rule 12(3)(i) of the said Rules of 2018;
an intending candidate for recruitment to the post of Principal in addition to
having the requisite teaching experience, is also required to possess a Post
Graduate qualification along with the B.Ed./B.T. Degree. However, the
B.Ed./B.T. qualification while being mandated for recruitment to the feeder
posts for recruitment to the post of Vice-Principal as well as for recruitment
to the next higher post of Principal in a Higher Secondary School, but, for
the post of Vice-Principal; the requirement of possessing a B.Ed./B.T.
Degree is omitted.
18. Mr. Choudhury, learned senior counsel appearing for the petitioners,
has, at the outset, by referring to the provisions of the Assam Secondary
Education (Provincialized Schools) Service Rules, 2018, submitted that
while it is a mandatory requirement for recruitment to the posts of
Graduate Teacher and Post Graduate Teacher that an intending candidate
must possess along with the other educational qualifications, a B.Ed./B.T.
Degree and the post of Vice-Principal in terms of the provisions of Rule 13
Page No.# 18/38
of the said Rules of 2018, admittedly, being a promotional post and the
feeder posts being the cadres of Graduate Teachers and Post Graduate
Teachers, it is incomprehensible that the said Rules of 2018, do not
prescribe the B.Ed./B.T. Degree qualification as one of the mandatory
qualifications for recruitment to the post of Vice-Principal.
19. Mr. Choudhury, learned Senior Counsel, by referring to the regulations
issued by the National Council for Teacher Education (NCTE), has submitted
that the National Council for Teacher Education (NCTE) had vide its
regulations, dated 12.11.2014, mandated that for recruitment to the post
of teachers in Secondary/High School and Senior Secondary
School/Intermediate Schools along with the other prescribed educational
qualifications; it is mandatory for an intending candidate to possess a
B.Ed./B.T. Degree from a National Council for Teacher Education (NCTE)
recognized institution. The learned Senior Counsel has further submitted
that the National Council for Teacher Education (NCTE) being the authority
entrusted with the responsibility of prescribing the requisite eligibility
criteria to be possessed by teachers in the schools coming under its
purview, and the prescription of a B.Ed./B.T. Degree being made mandatory
as far back as on 03.09.2001, and reiterated vide the said Notification,
dated 12.11.2014; has submitted that it is not open to the State
Government to prescribe a qualification for recruitment to the various posts
in the hierarchy of the posts figuring in a Higher Secondary School contrary
to the prescriptions made in this connection by the National Council for
Teacher Education (NCTE) authorities.
20. Mr. Choudhury, learned Senior Counsel, in support of his submissions,
Page No.# 19/38
has relied upon the decision of a Division Bench of this Court in the case of
Raju Chakraborty & ors. V. State of Assam & ors ., reported in 2020(4)
GLT 842, to emphasize on the point that the minimum qualification as
prescribed by the National Council for Teacher Education (NCTE) will have
to be given primacy in the arena of qualifications laid down for the teachers
and also in the process of selection of such teachers.
21. In the above premises, Mr. Choudhury, learned Senior Counsel for the
petitioners; has submitted that the respondent authorities having not
provided for the B.Ed./B.T. Degree as one of the mandatory qualifications
required for recruitment for promotion to the post of Vice-Principal, had
deviated from the prescriptions made in this connection by the National
Council for Teacher Education (NCTE) authorities and accordingly, the
provisions of Rule 13 of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, cannot be sustained and the same would call
for an interference by this Court along with the provisions of sub-rules 2(i)
and 2(p) of Rule 2 of the said Rules of 2018.
22. Mr. Alom, learned standing counsel, appearing for the National Council
for Teacher Education (NCTE) authorities, by referring to the affidavit-in-
opposition filed by the said authority in WP(c)8682/2019, has submitted
that the National Council for Teacher Education (NCTE) had as far back as
2001, prescribed the minimum recruitment qualification for the post of
teachers in High School/Higher Secondary School and B.Ed./B.T. Degree
qualification was a mandatory qualification so prescribed along with other
educational qualifications.
Page No.# 20/38
23. Mr. Alom, learned standing counsel, National Council for Teacher
Education (NCTE), by referring to the various Notifications issued by the
National Council for Teacher Education (NCTE) authorities including the
Notifications, dated 03.09.2001, and 12.11.2014, relevant to the issue
arising for adjudication in the present proceedings, has submitted that the
National Council for Teacher Education (NCTE) mandates the B.Ed./B.T.
Degree as an essential qualification for all categories of posts in a High
School/Higher Secondary School.
24. Mr. Alom, learned standing counsel, National Council for Teacher
Education (NCTE), has further submitted that the recruitment to the post of
Vice-Principal being so required to be effected by way of promotion in
terms of the provisions of Rule 13 of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, from the cadres of Graduate
Teacher and Post Graduate Teacher of Higher Secondary School; the State
Respondents ought to have included the B.Ed./B.T. Degree qualification as
an essential qualification for recruitment to the post of Vice-Principal in
view of the fact that the feeder posts identified for promotion to the said
post of Vice-Principal mandates possession by an intending candidate so
recruited to it, a B.Ed./B.T. Degree along with the prescribed educational
qualifications.
25. Mr. Alom, learned standing counsel, National Council for Teacher
Education (NCTE) authorities, in the above premises, has submitted that
the Department of School Education, Government of Assam, is required to
make appropriate amendments to the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, towards incorporating the
Page No.# 21/38
B.Ed./B.T. Degree for recruitment to the post of Vice-Principal.
26. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, at the outset, has submitted that the requirement of
possessing a B.Ed./B.T. Degree qualification was not a mandatory
qualification for recruitment to the posts of Graduate Teacher and Post
Graduate Teacher existing in various provincialized High Schools/Higher
Secondary Schools of the State prior to the year 2012.
27. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has further submitted that the amendment as effected in the
provisions of the Assam Secondary Education (Provincialized) Service
Rules, 2003, in the year 2012, had mandated that the B.Ed./B.T. Degree
would be a mandatory qualification for recruitment to the posts of Graduate
Teacher as well as Post Graduate Teacher. The learned standing counsel,
Secondary Education Department, has submitted that for the posts of
Graduate Teacher and Post Graduate Teacher as well as for the post of
Principal; the possession of B.Ed./B.T. Degree qualification was made
mandatory only in the year 2012.
28. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has also submitted that in view of the said position existing in
the Rules holding the field at various points of time, there exists in the
various provincialized Higher Secondary Schools of the State, Graduate
Teachers and Post Graduate Teachers recruited prior to the year 2012,
without the B.Ed./B.T. Degree qualification.
Page No.# 22/38
29. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has, accordingly, submitted that the Government while
framing the Assam Secondary Education (Provincialized Schools) Service
Rules, 2018, had omitted the requirement of possession of a B.Ed./B.T.
Degree for recruitment to the post of Vice-Principal only with a view to
provide an avenue of promotion to the incumbents recruited to the posts of
Graduate Teacher and Post Graduate Teacher in provincialized High
Schools/Higher Secondary Schools of the State prior to the year 2012, and
not possessing a B.Ed./B.T. Degree.
30. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has further submitted that the educational qualifications as
prescribed in Schedule III of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, for recruitment to the posts of
Graduate Teacher and Post Graduate Teacher, is in conformity with the
prescription made in this connection by the National Council for Teacher
Education (NCTE) authorities.
31. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has submitted that the provisions of Rule 12 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018, for
recruitment to the post of Principal, also mandates possession by an
intending candidate of a B.Ed./B.T. Degree along with the other educational
qualifications so prescribed.
32. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, in support of his submissions; has relied upon the decision of
Page No.# 23/38
a Division Bench of this Court in the case of All Assam Higher Secondary
Teachers & Employees Association v. State of Assam & ors ., reported in
2014 (5) GLT 69, to contend that on a challenge made by the Post
Graduate Teachers to the prescription of possession of a B.Ed./B.T. Degree
for recruitment to the post of Principal in terms of the provisions of the
Assam Secondary Education (Provincialized) Service(Amendment) Rules,
2012; this Court had required the State Respondents to re-consider the
said Rules and finalize the same within a period of 2(two) months from the
date of receipt of a copy of the order.
33. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, has, therefore, submitted that in view of the directions passed
by this Court in the case of All Assam Higher Secondary Teachers &
Employees Association (supra), the State Respondents had formulated the
provisions of Rule 13 as it exists in the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, with a view to provide an
avenue of promotion to the incumbents existing in the cadres of Graduate
Teacher and Post Graduate Teacher recruited prior to the year 2012 without
a B.Ed./B.T. Degree qualification.
34. Mr. Mazumdar, learned standing counsel, Secondary Education
Department, in the above premises; has submitted that the provisions of
Rule 13 of the Assam Secondary Education (Provincialized Schools) Service
Rules, 2018, given the object sought to be achieved behind incorporation of
the same in the manner it so exists in the provisions of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018; no
interference would be called for from this Court.
Page No.# 24/38
35. We have heard the learned counsels appearing for the parties and also
perused the materials available on record.
36. The grievance of the petitioners, as noticed hereinabove, is with
regard to the omission of the B.Ed. qualification while defining the terms
Graduate Teacher and Post Graduate Teacher in the provisions of sub-rules
2(i) and 2(p) of Rule 2 of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, and further, the omission of B.Ed.
qualification as a mandatory qualification for recruitment as Vice Principal
in the provisions of Rule 13 of the said Rules of 2018.
37. The challenge as made to the provisions of Rule 13 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018, is being
considered at the first instance.
38. The petitioners, herein, have contended that for recruitment to the
post of Vice-Principal, prescription of B.Ed./B.T. Degree is a mandatory
qualification, more particularly, in view of the prescriptions made with
regard to the recruitment to the post of school teachers in Senior
Secondary Schools by the National Council for Teacher Education (NCTE)
under the Regulations issued by it from time to time.
39. The National Council for Teacher Education (NCTE) was so established
in terms of the provisions of Section 3(1) of the National Council for
Teacher Education Act, 1993. In exercise of the powers conferred by
Section 32(dd) read with the provisions of Section 12(d) of the National
Council for Teacher Education Act, 1993; the National Council for Teacher
Page No.# 25/38
Education (NCTE) had issued the National Council for Teacher Education
(Determination of Minimum Qualifications for Recruitment of Teachers in
Schools), Regulations, 2001. The said Regulations published vide
Notification, dated 03.09.2001, was applicable for recruitment of teachers
in all formal schools, run or aided or recognized by the central or States or
other authorities for imparting education at the elementary, Secondary and
Senior Secondary stages. In terms of the said Regulations of 2001;
pertaining to Secondary/High School; the minimum academic and
professional qualification requisite for recruitment as a teacher was
prescribed as "Graduate with Bachelor of Education(B.Ed.) or its equivalent
or 4 years integrated B.Sc./B.Ed. and/or its equivalent course". For
recruitment as a teacher in a Senior Secondary/PUC/ Intermediate school;
the minimum academic and professional qualification was prescribed as
"Masters Degree in the relevant subject with Bachelor of Education(B.Ed.)
or its equivalent or 2 years integrated M.Sc./B.Ed. course and/or its
equivalent course".
40. Regulation 4 of the National Council for Teacher Education
(Determination of Minimum Qualifications for Recruitment of Teachers in
Schools), Regulations, 2001; mandated that the existing Rules for
recruitment of teachers, would be required to be modified within a period of
3 years so as to bring it in conformity with the qualifications prescribed in
the Schedule. It was further stipulated that the teachers appointed as per
the then existing recruitment qualifications, would be required to acquire
qualifications in terms of the provisions of the said Regulations of 2001
subsequent to the issuance of the same.
Page No.# 26/38
41. The National Council for Teacher Education Act, 1993, was amended
and provisions of Section 12A was incorporated. The provisions of section
12A, being relevant, is extracted hereinbelow:
"12A. Power of Council to determine minimum standards of education of school
teachers. - For the purpose of maintaining standards of education in schools, the
Council may, by regulations, determine the qualifications of persons for being
recruited as teachers in any pre-primary, primary, upper primary, secondary, senior
secondary or intermediate school or college, by whatever name called, established,
run, aided or recognised by the Central Government or a State Government or a local
or other authority:
Provided that nothing in this section shall adversely affect the continuance of
any person recruited in any pre-primary, primary, upper primary, secondary, senior
secondary or intermediate schools or colleges, under any rule, regulation or order
made by the Central Government, a State Government, a local or other authority,
immediately before the commencement of the National Council for Teacher
Education(Amendment) Act, 2011 (18 of 2011) solely on the ground of non-fulfillment
of such qualifications as may be specified by the Council:
Provided further that the minimum qualifications of a teacher referred to in the
first proviso shall be acquired within the period specified in this Act or under the
Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009).]"
42. The National Council for Teacher Education (NCTE) authorities,
thereafter, vide Notification, dated 12.11.2014, in exercise of the powers
conferred under Clause(dd) of Sub-section 2 of Section 32 read with
Section 12A of the National Council for Teacher Education Act, 1993, and in
supersession of the National Council for Teacher Education (Determination
of Minimum Qualifications for Recruitment of Teachers in Schools),
Regulations, 2001; had framed the National Council for Teacher Education
(Determination of Minimum Qualifications for Persons to be recruited as
Education Teachers and Physical Education Teachers in Pre-Primary,
Primary, Upper Primary, Secondary, Senior Secondary or Intermediate
Schools or colleges) Regulations, 2014.
43. In terms of the said Regulations of 2014, more particularly,
Regulation 4(a) thereof; it was mandated that the qualifications for
Page No.# 27/38
recruitment of teachers in any of the schools covered by the said
Regulations of 2014; shall be as given in the first and second Schedule
annexed to the said Regulations. It was further provided under the
provisions of Regulation 4(b) that for promotion of teachers; the minimum
qualifications as specified in the first and second Schedule are applicable
for consideration from one level to the next level.
44. The provisions of the first Schedule to the said National Council for
Teacher Education (Determination of Minimum Qualifications for Persons to
be recruited as Education Teachers and Physical Education Teachers in Pre-
Primary, Primary, Upper Primary, Secondary, Senior Secondary or
Intermediate Schools or Colleges), Regulations, 2014; insofar as it
concerns the prescription of qualifications for teachers in Secondary/High
School (for classes IX-X) and Senior Secondary/Intermediate(for classes
XI-XII), are extracted hereinbelow:
"First Schedule
{See Sub-regulation (2) of Regulation (4)}
The National Council for Teacher Education (Determination of Minimum Qualifications for
Persons to be recruited as Education Teachers in Pre-Primary, Primary, Upper Primary,
Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS
4. Secondary/ (a) Graduate/Post Graduate from recognized University with at least 50% marks in
High School either Graduation or Post Graduation (or its equivalent) and Bachelor of Education
(For classes (B.Ed.) from National Council for Teacher Education recognized institution.
IX-X) Or
(b) Graduate/Post Graduate from recognized University with at least 45% marks in
either Graduation or Post Graduation (or its equivalent) and Bachelor of Education
(B.Ed.) from National Council for Teacher Education recognized institution {in
accordance with the National Council for Teacher Education (Form of application for
recognition, the time limit of submission of application, determination of norms and
standards for recognition of teacher education programmes and permission to start
new course or training) Regulations, 2002 notified on 13.11.2002 and National Council
for Teacher Education (Recognition Norms and Procedure) Regulations, 2007 notified
on 10.12.2007}
Or
(c) 4-years degree of B.A.Ed./B.Sc.Ed. from any National Council for Teacher Education
recognized institution.
Page No.# 28/38
5. Senior (a) Post Graduate with at least 50% marks (or its equivalent) from recognized
Secondary/ University and Bachelor of Education (B.Ed.) from National Council for Teacher
Intermediate Education recognized institution.
(For classes Or
XI-XII) (b) Post Graduate with at least 45% marks (or its equivalent) from recognized University
and Bachelor of Education (B.Ed.) from National Council for Teacher Education
recognized institution {in accordance with the National Council for Teacher Education
(Form of application for recognition, the time limit of submission of application,
determination of norms and standards for recognition of teacher education
programmes and permission to start new course or training) Regulations, 2002
notified on 13.11.2002 and National Council for Teacher Education Recognition Norms
and Procedure) Regulations, 2007 notified on 10.12.2007-
Or
(c) Post Graduate with at least 50% marks (or its equivalent) from recognized University
and B.A.Ed./B.Sc.Ed. from any NCTE recognized institution.
45. Having noticed the provisions of the National Council for Teacher
Education Act, 1993, and the Regulations framed thereunder, and by also
noticing that the parties to the present proceedings, have not disputed that
the prescription of eligibility criteria as mandated by the National Council
for Teacher Education (NCTE), is mandatory for recruitment to the posts of
teachers and is required to be followed by all concerned including the State
Respondents, the stand as taken by the State respondents, in the present
proceeding, is being examined.
46. The State Respondents have in the present proceedings, justified the
omission of the qualification of B.Ed./B.T. Degree for recruitment to the
post of Vice-Principal, by projecting that the Post Graduate Teachers/
Graduate Teachers existing in service recruited prior to the year 2012
without the B.Ed. Degree; in the event of the B.Ed. Degree being also
prescribed as one of the mandatory educational qualifications for the post
of Vice-Principal, would be excluded from the purview of consideration for
promotion to the post of Vice-Principal.
47. As noticed hereinabove; the prescription of B.Ed. qualification for the
posts of Graduate Teacher and Post Graduate Teacher was mandated only
Page No.# 29/38
with effect from the year 2012. Prior to 2012; the said qualification was not
a mandatory qualification for recruitment as a Graduate Teacher and/or
Post Graduate Teacher. Further, the said qualification was also not
mandated for recruitment to the post of Principal and/or Vice-Principal.
However, with the amendment of the provisions of the Assam Secondary
Education (Provincialized) Service Rules, 2003, in the year 2012; the B.Ed.
Degree qualification came to be prescribed as a mandatory qualification for
recruitment to the posts of Graduate Teacher and Post Graduate Teacher.
The said qualification was also prescribed as a mandatory qualification for
recruitment to the post of Principal. The prescription of B.Ed. qualification
for the post of Principal in the Assam Secondary Education (Provincialized)
Service Rules, 2003, vide the amendment effected therein, in the year
2012; was challenged before this Court in the case of All Assam Higher
Secondary Teachers & Employees Association(supra). This Court upon
appreciating the issue so arising in the said case, was pleased to dispose of
the same with the following directions:
"6. Learned counsel for the State says that since the matter is legal, it was not
necessary to file reply and, on due consideration, the State has issued notification
dated 13th September, 2012 granting relaxation in the requirement of having BT/B.Ed
degree upto 1st January, 2015 for appointment in Higher Secondary School/High
School/High Madrassa, subject to the condition that the candidate will have to
acquire B.Ed/BT degree within five years from the date of joining. However, he has no
instructions on the issue of qualification of BT/B.Ed degree for Post Graduate
Teachers for eligibility for the Post of Principal.
7. On due consideration, we find merit in the grievance of the petitioners. It is clear
that the amendment of qualifications required for recruitment to the Post of Principal
in Clause 1(i) for the Post Graduate Teachers or Vice-Principals (appointed out of Post
Graduate Teachers), no such qualification was laid down at the time of entry into
service nor at any point thereafter, they could obtain such degree. Thus, eligible
candidates with 15 years service will be rendered ineligible which is arbitrary and
discriminatory. Graduate Teachers were being allowed to acquire these qualifications
during service which Post Graduate Teachers were not and, therefore, Post Graduate
Teachers could not be treated at par with Graduate Teachers in the matter of having
BT/B.Ed degree.
8. In view of above, the Rule may either require to be set aside or may have to be
reconsidered by the rule making authority. Accordingly, we direct that the issue may
be reconsidered and finalized within two months from the date of receipt of a copy of
this order and, pending such finalization, no further regular promotion be made to
Page No.# 30/38
the Posts of Principals in Higher Secondary/Higher Secondary & Multipurpose
Schools. Any step taken in pursuance of the above amendments may be reviewed in
the light of the above observation."
48. A perusal of the directions passed by this Court in the case of All
Assam Higher Secondary Teachers & Employees Association(supra),
would go to show that the State after having prescribed the B.Ed./B.T.
Degree qualification for recruitment to various posts in Higher Secondary
School/High School/High Madrassa, had issued a Notification, dated
13.09.2012, granting relaxation in the requirement of a possession of a
B.Ed./B.T. Degree qualification upto 01.01.2015, subject to the condition
that the candidate concerned shall have to acquire the B.Ed./B.T. Degree
qualification within 5 years from the date of his joining.
49. This Court, in the said decision, further noticing that for recruitment
to the post of Post Graduate Teachers; the incumbents so recruited to the
cadre prior to the year 2012, were not required to also possess a B.Ed./B.T.
Degree and they having rendered requisite length of service for promotion
to the next higher post and further, noticing that the Graduate Teachers
while being allowed to acquire the B.Ed. Degree during their service tenure,
such facility was not being extended to the Post Graduate Teachers;
proceeded to direct the State Respondents authorities, either, to set aside,
or, to re-consider the Rules. The State Respondents, however, with regard
to the prescription of B.Ed. Degree qualification for the post of Principal, did
not amend the provisions of the Assam Secondary Education
(Provincialized) Service Rules, 2003, and the B.Ed. Degree qualification
continued to be mandated as one of the mandatory qualifications requisite
for recruitment to the post of Principal.
Page No.# 31/38
50. As noticed hereinabove; the National Council for Teacher Education
(NCTE) is authorized to prescribe the requisite qualifications required to be
possessed by an incumbent for recruitment to the post of teachers in
schools covered by the provisions of the National Council for Teacher
Education Act, 1993. Accordingly, it is to be seen as to whether the posts of
Principal and Vice-Principal as existing in a provincialized Senior Secondary
School, can be construed to be teaching posts, to bring it within the
purview of the provisions of the National Council for Teacher Education
(NCTE) Regulations issued from time to time with regard to the minimum
educational and professional qualifications required to be possessed by a
person for being recruited as a teacher in a Senior Secondary School
and/or as to whether the said post have to be deemed to be an
administrative post divorced from any teaching responsibility so as to take
it outside the purview of the National Council for Teacher Education (NCTE)
Regulations.
51. The said issue need not detain this Court any further in-as-much as
the provisions of Rule 2(z) of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, defines "teacher" to mean all
Assistant Teachers, Subject Teaches, Faculties including Principal and Vice-
Principal. The provisions of Rule 2(z) being relevant is extracted
hereinbelow:
"(2) "Teacher" means and includes all Assistant Teachers/ Subject Teacher, Faculties
including Principal, Vice-Principal, Headmaster, Superintendent, Assistant
Headmaster, Assistant Superintendent and Demonstrator of a Higher Secondary or a
High School including amalgamated Higher Secondary and High Schools whose
services have been provincialised under the Assam Secondary Education
(Provincialisation) Act, 1977, any other subsequent Act and also includes a teacher
appointed against a regular sanctioned post in a Senior Secondary, Higher Secondary
or a High School/Madrassa;"
Page No.# 32/38
52. Further, the provisions of Rule 3 of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, constitutes the various classes
and cadres existing in a provincialized school. The provisions of Rule 3(1)
mandates that the service in a provincialized school shall consists of
teaching and non-teaching staff as per Schedule-III. It further mandates
that the teaching staff shall consist, amongst others, of the cadres of
Principal, Vice-Principal, Graduate Teacher and Post Graduate Teacher. The
provisions of Rule 3 of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, being relevant, is extracted hereinbelow:
"3. Classes and Cadres.- (1) The Service in provincialised School shall consist of the
teaching and non-teaching staff as in Schedule-III. The teaching staff shall consist of
the following classes and cadres, each one of those constituting a distinct and
separate cadre as on the commencement of these rules, namely:-
(a) Class-I (Senior):- It includes the cadre of-
(i) Principal;
(a) Class-II:- It includes the cadres of-
(i) Vice Principal;
(ii) Post Graduate Teacher;
(iii) Headmaster/Superintendent;
(b) Class-III:- It includes the cadres of-
(i) Assistant Headmaster/Assistant Superintendent;
(ii) (a) Graduate Teacher;
(b) Hindi Teacher having Bachelor Degree from any recognized
University;
(c) Classical Teacher (Sanskrit/Arabic/Language Teacher) having
Bachelor Degree from any recognized University;
(d) Assamese Language Teacher;
(iii) Demonstrator;
(iv) Music Teacher;
(v) Under Graduate Teacher/Junior Classical Teacher/ Junior Hindi
Teacher;
(vi) Craft Teacher.
(2) The non-teaching staff in provincialised School shall consist of the following
classes and cadres on the date of commencement of these rules, namely:-
(a) Class-III: It includes the cadres of-
(i) Senior Assistant;
(ii) Junior Assistant;
(iii) Library Assistant;
(b) Class-IV:- It includes the cadres of-
(i) Laboratory Bearer;
(ii) Peon/Chowkidar.
Page No.# 33/38
(3) The service may also include:-
(i) Any post equivalent to a post in any of the cadre mentioned in sub-rule
(1) and (ii) Any cadre or post declared by the Government to be cadre of
the service.
(ii) Each cadre in sub-rule (2) of rule 3 shall form an independent cadre
and members of any cadre shall have no claim for appointment at any
cadre except in accordance with provision of these rules.
(iii) The service may also include post equivalent to post of any cadre
mentioned in sub-rule (2) of rule 3 and any post that may be declared by
the Government from time to time as cadre post of the service."
53. The provisions of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, having denoted the posts of Principal and
Vice-Principal to be teaching posts; it has to be held that the provisions of
the National Council for Teacher Education Act, 1993, more particularly, the
prescription of qualifications therein, for teachers of a Senior Secondary
School, shall automatically apply for the purpose of recruitment to the
posts of Principal and Vice-Principal in a Higher Secondary School, covered
by the provisions of the said Rules of 2018.
54. Further, the provisions of Regulation 4(b) of the National Council for
Teacher Education (Determination of Minimum Qualifications for Persons to
be recruited as Education Teachers and Physical Education Teachers in Pre-
Primary, Primary, Upper Primary, Secondary, Senior Secondary or
Intermediate Schools or colleges) Regulations, 2014, having also mandated
that for promotion of teachers, the relevant minimum qualification as
specified in the first and second Schedules, are applicable for consideration
from one level to the next level; the post of Vice-Principal being a
promotional post in terms of the provisions of Rule 13 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018, from the
cadres of Graduate Teacher and Post Graduate Teacher, it has to be held
that the qualifications as prescribed for recruitment to the posts of
Page No.# 34/38
Graduate Teacher as well as Post Graduate Teacher, would also
automatically stand extended for recruitment to the post of Vice-Principal in
a provincialized Higher Secondary School.
55. The post of Vice-Principal as noticed hereinabove, being a promotional
post from the feeder cadres of Graduate Teacher and Post Graduate
Teacher; the prescription of the qualification of B.Ed. Degree would be a
mandatory qualification and the omission by the Rule making authority to
incorporate the B.Ed. Degree in the provisions of Rule 13 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018, for the
purpose of recruitment to the post of Vice-Principal, cannot be
countenanced and the same has to be held to be in violation of the
prescription of the National Council for Teacher Education (NCTE)
Regulations holding the field.
56. Accordingly, we are of the considered view that the Rule making
authority while framing the provisions of Rule 13 of the Assam Secondary
Education (Provincialized Schools) Service Rules, 2018, could not have
omitted the B.Ed. Degree as a mandatory qualification for recruitment to
the post of Vice-Principal. The post of Vice-Principal being a teaching post
under the provisions of the said Rules of 2018; the prescription of B.Ed.
Degree for recruitment to the posts of Graduate Teacher and Post Graduate
Teacher by the National Council for Teacher Education (NCTE) and also by
the Rules of 2018, it has to be also understood that for recruitment to the
post of Vice-Principal, the said qualification would be a mandatory
qualification.
Page No.# 35/38
57. The Rule making authority having not made any classification specific
to the Post Graduate Teachers and/or Graduate Teachers recruited before
2012 in Senior Secondary Schools for the purpose of promotion to the post
of Vice-Principal by treating them to be a distinct class; we are of the
considered view that the justifications advanced by the State Respondents
in the matter, would not advance their case. Moreso, when the provisions of
Rule 13 of the Rules of 2018 also denotes as the feeder cadre persons
earlier working in Lower Primary and Upper Primary Schools coming into
service of a Higher Secondary School upon amalgamation of their
respective schools with a Higher Secondary School.
58. Accordingly, we are of the considered view that the omission of the
B.Ed. qualification for recruitment to the post of Vice-Principal, in the
provisions of Rule 13 of the Assam Secondary Education (Provincialized
Schools) Service Rules, 2018, is clearly erroneous and the Rule making
authority could not have omitted to prescribe the B.Ed. qualification as one
of mandatory qualifications for recruitment to the post of Vice-Principal.
59. Having drawn the above conclusions with regard to the issue raised
by the petitioners with regard to the omission of the qualification of B.Ed.
Degree for the purpose of recruitment to the post of Vice-Principal; we
would now consider the challenge so made by the petitioners to the
provisions of sub-rules 2(i) and 2(p) of Rule 2 of the Assam Secondary
Education (Provincialized Schools) Service Rules, 2018.
60. It is the contention of the petitioners that while defining the terms
"Graduate Teacher" and "Post Graduate Teacher"; the requirement of
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possessing by such category of teachers, the qualification of B.Ed. Degree,
was not incorporated.
61. As noticed hereinabove, the B.Ed. degree was prescribed as a
mandatory qualification for recruitment to the posts of Graduate Teacher
and Post Graduate Teacher in the Assam Secondary Education
(Provincialized) Service Rules, 2003, only on its amendment effected in the
year 2012. It is an admitted position that as on date, there are incumbents
existing in the cadres of both Graduate Teacher and Post Graduate Teacher
in the schools covered by the provisions of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, recruited prior to the year
2012 who were so recruited without insisting upon a B.Ed. Degree. The
National Council for Teacher Education (Determination of Minimum
Qualifications for Recruitment of Teachers in Schools), Regulations, 2001,
while mandating B.Ed. Degree to be a mandatory qualification for
recruitment to the posts of Graduate Teacher and Post Graduate Teacher,
had required the existing incumbents to acquire the said qualification within
a period of 3 years with effect from the date of coming into effect of the
said Rules. However, on account of an amendment of the provisions of the
National Council for Teacher Education Act, 1993, in the year 2011, and
incorporation of Section 12A therein, proviso of which now mandates that
the prescriptions made in terms of the provisions of Rule 12A of the
National Council for Teacher Education Act, 1993, shall not adversely affect
the continuance of any person recruited in a Secondary School and/or
Senior Secondary School before commencement of the National Council for
Teacher Education (Amendment), Act, 2011, solely, on the ground of non-
fulfillment of such qualification as may be specified by the Council.
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62. Further, the Assam Secondary Education (Provincialized Schools)
Service Rules, 2018, more particularly, Schedule-III thereof, having
provided for the minimum educational and professional qualifications for
direct recruitment to the posts of Graduate Teacher and Post Graduate
Teacher and therein, amongst others; the prescription of a B.Ed. Degree
being so made, we are of the considered view that the qualification as
mandated for recruitment to the posts of Graduate Teacher and Post
Graduate Teacher, is in consonance with the prescription made in this
connection under the National Council for Teacher Education (Determination
of Minimum Qualifications for Persons to be recruited as Education Teachers
and Physical Education Teachers in Pre-Primary, Primary, Upper Primary,
Secondary, Senior Secondary or Intermediate Schools or colleges)
Regulations, 2014, and accordingly, the omission to prescribe the B.Ed.
qualification in the provisions of sub-rules 2(i) and 2(p) of Rule 2 of the
Rules of 2018, would be of no consequence, given the fact that persons
recruited prior to the year 2012, to the posts of Post Graduate Teacher and
Graduate Teacher without the B.Ed. qualification, have been permitted to
continue in their services in terms of the proviso to Rule 12A of the
National Council for Teacher Education Act, 1993(as amended), without
requiring them to acquire the qualifications coming into force through the
Regulations of the National Council for Teacher Education (NCTE), after
2011.
63. In the light of the proviso to Section 12A of the National Council for
Teacher Education Act, 1993; we are of the considered view that the
definition of the terms "Graduate Teacher" and "Post Graduate Teacher" as
laid-out in the provisions of sub-Rules 2(i) and 2(p) of Rule 2 of the Assam
Secondary Education (Provincialized Schools) Service Rules, 2018, is an
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inclusive definition. The said definitions also takes within its fold, the
Graduate Teachers and Post Graduate Teachers existing in various
Secondary Schools and Higher Secondary Schools of the State, without a
B.Ed. Degree, and as such; in our considered view, the provisions of sub-
rules 2(i) and 2(p) of Rule 2 of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, would not call for any
interference.
64. In view of the above, we hereby direct the State Respondents to
review the provisions of Rule 13 of the Assam Secondary Education
(Provincialized Schools) Service Rules, 2018, in terms of the discussions
and conclusions drawn, hereinabove, for inclusion of the qualification of
B.Ed. Degree as one of the mandatory qualifications for recruitment to the
post of Vice-Principal in the provincialized Higher Secondary School of the
State. The said review be carried-out and concluded within a period of
2(two) months from the date of receipt of a certified copy of this order.
65. With the above directions and observations, this writ appeal stands
disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
