Page No.# 1/6 vs The State Of Assam And 4 Ors
2024 Latest Caselaw 8558 Gua

Gauhati High Court

Page No.# 1/6 vs The State Of Assam And 4 Ors on 22 November, 2024

                                                              Page No.# 1/6

GAHC010068732024




                                                        2024:GAU-AS:11430

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

                         Case No. : WP(C)/1828/2024

         HARI CHANDRA SAIKIA
         SON OF LATE ANANDA SAIKIA,
         RESIDENT OF VILLAGE- PAHUKATA,
         P.O.- KALABARI, P.S.- GOHPUR,
         DISTRICT- BISWANATH, ASSAM


         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE SECRETARY,
         DEPARTMENT OF SCHOOL EDUCATION,
         GOVERNMENT OF ASSAM,
         ASSAM SECRETARIAT, DISPUR, GUWAHATI- 781006.

         2:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
          KAHILIPARA
          GUWAHATI- 781019.

         3:THE INSPECTOR OF SCHOOLS
          SONITPUR DISTRICT CIRCLE
         TEZPUR
          DISTRICT- SONITPUR
         ASSAM.

         4:THE PRINCIPAL (I/C)
          KALABARI HIGHER SECONDARY SCHOOL
          P.O.- KALABARI
          P.S.- GOHPUR
         DISTRICT- BISWANATH
         ASSAM

         784178.
                                                                          Page No.# 2/6


            5:GOBIN SAIKIA
             SUBJECT TEACHER
            KALABARI HIGHER SECONDARY SCHOOL
            P.O.- KALABARI
             P.S.- GOHPUR
            DISTRICT- BISWANATH
            ASSAM
            784178

Advocate for the Petitioner   : MR. R PHUKAN,

Advocate for the Respondent : SC, SEC. EDU., MR. D K BAGCHI(R-5)




                                          BEFORE
                   HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
                                          O R D E R

22.11.2024

Heard Mr. Mr. R. Phukan, learned counsel for the petitioner. Also heard Ms. D. Musahary, learned Standing Counsel, Secondary Education Department, Assam for the respondent Nos. 1, 2 & 3 and Mr. D.K. Bagchi, learned counsel for the respondent No.5.

2. It is the case of the petitioner that he is eligible to be considered for the post of In-charge Principal of Kalabari Higher Secondary School in the district of Sonitpur, Tezpur. The petitioner received the Graduate Scale of Pay with effect from 30.12.1993. The petitioner obtained his M.A. Degree from the Gauhati University in the year 1997 and also obtained the B.Ed Degree in the year 1996 from the Gauhati University. Accordingly, it is the case of the petitioner that he is entitled to be considered for holding the post of In-charge Principal of Kalabari Higher Secondary School in terms of Rule-12 of the Assam Secondary Education (Provincialised Schools) Page No.# 3/6

Service Rules, 2018 (Rules of 2018 in short) inasmuch as, the petitioner has the required qualification and has also rendered 31(thirty one) years of service as a Graduate Teacher. However, without considering the case of the petitioner, the Director of Secondary Education, Assam/ respondent No.2, issued the order dated 12.03.2024, whereby the respondent No.5 was allowed to act as In-charge Principal of the said Kalabari Higher Secondary School in addition to his normal duties as Post Graduate Teacher in the said school. The further case of the petitioner is that the respondent No.5 does not possess the B.Ed Degree, which is a requirement under Rule-12 of the Rules of 2018.

3. Ms. D. Musahary, learned Standing Counsel, Secondary Education Department, Assam submits that as the petitioner did not obtain 'No Objection Certificate' (in short NOC) from the competent authority prior to acquiring his B.Ed Degree as well as the M.A. Degree from the Gauhati University, the said degrees could not be recognized by the Government and accordingly, his case was not considered and the respondent No.5 was allowed to act as the In-charge Principal of the said Kalabari Higher Secondary School by the order dated 12.03.2024. She also submits that a departmental proceeding has been initiated against the petitioner under Rule-9 of the Assam Services (Discipline and Appeal) Rules, 1964 and a show cause notice has also been issued to the petitioner. She further submits that in terms of the interim order passed by this Court on 02.04.2024, the respondent No.2 has issued an order on 14.06.2024, by which the Inspector of Schools, SDC, Tezpur has been allowed to hold the charge of In-charge Principal of the said Kalabari Higher Secondary School.

Page No.# 4/6

4. Mr. D.K. Bagchi, learned counsel for the respondent No.5 fairly submits that the respondent No.5 does not have the B.Ed Degree as required under Rule-12 of the Rules of 2018.

5. In so far as the B.Ed Degree and M.A. Degree obtained by the petitioner from the Gauhati University is concerned, there is no doubt that the said degrees were obtained without getting the prior approval from the competent authority. A Co-ordinate Bench of this Court, by Judgment and order dated 28.09.2023 passed in I.A(Civil) No.2615/2023 has held as under:-

"5. A university offers a degree in exercise of the powers under section 22 of the University Grants Commission Act, 1956 and taking note of Rule 21 of the General Clauses Act, it is only the university who can declare the degree obtained to be untenable in law or may withdraw it. No other third party can be understood to have any jurisdiction or authority not to accept a degree offered by a university in exercise of the powers under section 22 of the UGC Act, 1956.

We are unable to accept the view formed by the Director of Secondary Education, Assam in the order dated 27.07.2023 that as because the writ petitioner Smti Smriti Rekha Kalita had obtained the M.A Degree without obtaining NOC or previous permission from the authority, therefore, the M.A Degree of the writ petitioner would be unacceptable as per Rule. From such point of view, the writ petitioner can be said to have made out a strong prima facie case against the order dated 27.07.2023. If the M.A Degree of the writ petitioner is otherwise valid and acceptable in law, the writ petitioner may have a legal right to be the in-charge Principal and accordingly also has the benefit of the balance of convenience as well as will suffer irreparable loss if the interim order dated 09.08.2023 is vacated."

6. The Judgment & Order dated 28.09.2023 was also followed by this Court in the case of Tankeswar Nath Vs. State of Assam & Others [WP(C) No. 5419/2023, dated 18.12.2023], wherein, after examining the provisions of Rule 13 of the Assam Civil Services (Conduct) Rules, 1965 Page No.# 5/6

and agreeing with the decision of this Court in the case of Mouchumi Saharia (supra) concluded as under:-

"7. On application of the decision of this Court in the case of Mouchumi Saharia(supra); to the issues arising in the present case, it is clear that the petitioner having been validly granted a Masters Degree in Assamese and the said Degree having been obtained from an institution recognized by the University Grants Commission, the respondent authorities do not have the jurisdiction and authority to invalidate the said Degree obtained by the petitioner and such invalidation cannot be done even impliedly. The effect of the denial of the benefits of holding the charge of in-charge Principal of the said school to the petitioner in spite of being the senior most Teacher of the school, amounts to an invalidation of the Degree obtained by the petitioner in Krishna Kanta Handique State Open University, which is impermissible.

Accordingly, the order, dated 30.03.2023, having been issued only on the ground that the petitioner was not eligible to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Sarthebari, on account of he having obtained his M.A. Degree without prior permission from the competent authorities for undergoing such a course; stands interfered with.

9. The M.A. Degree acquired by the petitioner having been so acquired from a recognized University; the said Degree is otherwise valid and acceptable in law and accordingly, the petitioner having fulfilled the eligibility criteria as mandated for recruitment to the post of principal of the school in question, under the provisions of Rule 12(3) of the said Rules of 2018; a legal right has accrued to the petitioner to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Sarthebari."

7. Applying the ratio of the decision of this Court in Tankeswar Nath (supra), it is held that the B.Ed Degree as well as the M.A. Degree acquired by the petitioner having been so acquired from a recognized University, the said degrees are otherwise valid and acceptable in law and accordingly, the petitioner is held to have fulfilled the eligibility criteria for consideration for the post of In-charge Principal of the said Kalabari Higher Page No.# 6/6

Secondary School.

8. Accordingly, this writ petition is disposed of directing the Director of Secondary Education, Assam to consider the claim of the petitioner as well as all other candidates, who are eligible for consideration for the post of In-charge Principal of Kalabari Higher Secondary School and take necessary steps for filling up the said post in accordance with law and within a period of one month from the date of receipt of a certified copy of the order of this Court.

9. Consequently, the order dated 12.03.2024, by which the respondent No.5 was allowed to act as an In-charge Principal of the Kalabari Higher Secondary School, is set aside and quashed.

10. This Court however, makes is clear that it is not interfering with the disciplinary proceeding initiated against the petitioner.

11. With the above observations and directions, this writ petition stands disposed of.

JUDGE

Comparing Assistant