[Cites 8, Cited by 0]
Gauhati High Court
Page No.# 1/2 vs The State Of Assam And 3 Ors on 15 December, 2025
Page No.# 1/20
GAHC010061402025
2025:GAU-AS:16774
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1739/2025
NILA KANTA BORAH
S/O LATE TAPESWAR BORAH, RESIDENT OF VILLAGE SANTIPUR, P.S. AND
P.O. MANGALDAI, DISTRICT DARRANG, ASSAM, PIN- 784125
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE SECRETARY, TO THE GOVERNMENT OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION, ASSAM, DISPUR, GUWAHATI -
781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
SECONDARY EDUCATION DEPARTMENT
KAHILIPARA
GUWAHATI- 781019
ASSAM.
3:THE INSPECTOR OF SCHOOLS
DARRANG DISTRICT CIRCLE
MANGALDAI
DISTRICT- DARRANG
ASSAM.
4:ABDUL LATIF
THE PRINCIPAL I/C
SIPAJHAR HIGHER SECONDARY AND MULTI PURPOSE SCHOOL
SIPAJHAR
DARRANG
ASSAM- 784145
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Advocate for the Petitioner : MS. RUKMINI BARUA, MS. PADMINI BARUA
Advocate for the Respondent : SC, SEC. EDU., S KHAN(R-4),MR J HUSSAIN(R-4),MD A
WADUD (R-4),MR. M HOSSAIN(R-4)
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
15.12.2025
Heard Ms. P. Barua, learned counsel for the petitioner. Also heard Ms. P. Das,
learned standing counsel for the Secondary Education Department, appearing
for respondent Nos. 1, 2 and 3, and Mr. M. Hossain, learned counsel for the
respondent No.4.
2. Seeking following relief(s) the petitioner, namely, Shri Nila Kanta Borah,
has instituted this proceeding, under Article 226 of the Constitution of India:-
(i) to interfere with the Order dated 01.04.2021, by which the
respondent No. 4 was allowed to be the in-charge Principal of
Sipajhar Higher Secondary and Multi Purpose School (H.S. & M.P.)
School;
(ii) to direct the respondent Nos. 1 to 3 to pass necessary orders to
allow the petitioner to be the in-charge Principal of Sipajhar H.S. &
M.P. School.
Background Facts:-
3. The petitioner was initially appointed as an Assistant Teacher in Sipajhar
Academy, vide order dated 22.11.1999 issued by the Inspector of Schools,
Darrang District Circle, Mangaldai. He was appointed/promoted to the post of
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Headmaster of Sipajhar Academy on 11.07.2011. He possessed all the
necessary educational qualifications, including B.Ed. degree, which he had
acquired in the year 1996.
That the respondent No. 4, Md. Abdul Latif was appointed as a Graduate
Teacher in the Sipajhar H.S. & M.P. School, in the year 1990. He also possessed
M.A. and B.Ed., Degree. However, he obtained M.A degree in the year 2017
from Gauhati University, without obtaining any leave or permission from the
concerned authorities, which, according to the petitioner, amounts to a
misconduct under Rule 13 of the Assam Civil Services (Conduct) Rules, 1965, in
view of judgment and Order dated 28.09.2023, passed by this Court in I.A.
(Civil)/2615/2023 (Smti Mouchumi Saharia vs. Smriti Rekha Kalita).
The post of Principal, Sipajhar H.S. & M.Ρ. School had fallen vacant, and
the respondent no. 4, being the senior most Graduate Teacher, was allowed to
be the in-charge Principal as per the order dated 01.04.2021, of the Director,
Secondary Education Assam.
Though the post of Principal of a Higher Secondary School is a post higher
than that of a Graduate Teacher, but the respondent No. 4 is still paid the salary
of a Graduate Teacher, which means that allowing the respondent no. 4 to be
the in- charge Principal is an arrangement under FR 49(c) of the Fundamental
Rules and Subsidiary Rules. Therefore, irrespective of being the in-charge
Principal, the substantive appointment of the respondent No. 4 continues to be
that of a Graduate Teacher and not that of a Principal.
Notably, the petitioner has not enclosed the impugned order dated
01.04.2021, as the same could not be obtained by him and as such leave of the
Court has been requested to produce it as and when the same is
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received/provided and in the alternative, it has also been prayed for issuing
direction to the respondents to produce the order dated 01.04.2021.
As per Assam Secondary Education (Provincialised Schools) Service Rules,
2018 (hereinafter referred as Provincialised Schools Service Rules of 2018),
under Rule 3, the cadre of Principal is a Class I (Senior) post; and the Vice
Principal, Post Graduate Teachers and Head Masters/ Superintendents are Class
II and Assistant Headmaster/Assistant Superintendent, Graduate Teacher, etc.
are Class III posts.
Pursuant to a scheme called 'Siksha Khetra' and pursuant to the order No.
DSE GIS Amal/429/2022/71, dated 15.07.2023, issued by the Director of
Secondary Education, Assam, the Sipajhar Academy was amalgamated with
Sipajhar H.S. and M.S. School. Clause VII of the Amalgamation/ Merger in the
order, dated 15.07.2023, provides that if the highest level school is a High
School/ Higher Secondary School/ Senior Secondary School, the Headmaster
/Principal of the highest level school shall continue after the amalgamation and
the post of Headmaster of ME/ High School shall be redesignated as Assistant
Headmaster/Vice-Principal of the amalgamated High School/ Higher Secondary
School. Since the petitioner was serving as Headmaster of Sipajhar Academy
since 11.07.2011, as per the provisions of Clause VII of the amalgamation order,
he was redesignated as the Vice-Principal of the Sipajhar H.S. & M.P. School, by
the Director of Secondary Education, Assam vide order dated 07.06.2024 .
It is the contention of the petitioner that on amalgamation of the both the
Schools on 15.07.2023, and on 07.06.2024 when the order was passed by the
Director of Secondary Education, the petitioner having been redesignated as the
Vice-Principal of the amalgamated Higher Secondary School, his cadre has been
changed to class II. But, the respondent No. 4, although, he was made the in-
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charge Principal, continues to remain in Class III as his substantive appointment
continues to remain as that of a Graduate Teacher which is in Class III.
Although, as per Clause VII of the order dated 15.07.2023, the
Headmaster/Principal of the highest level school shall continue after
amalgamation, the said provision would be applicable only in respect of a
regularly appointed/promoted Principal and not to that of a Graduate Teacher
who is allowed to be the in- charge Principal of the school prior to the
amalgamation. Upon the petitioner being redesignated, he belongs to Class II of
the service, and as such, he has a better claim to be the in-charge Principal of
the school than that of a Graduate Teacher who happens to be in Class III and
that it is the fundamental principle in Service Law Jurisprudence that in order to
hold charge of a higher post, the person who is in Class II of the service, will
have a better claim than that of a person who is in Class III. Therefore, on and
from the date of redesignation of the petitioner as the Vice-Principal of the
amalgamated Higher Secondary School, the petitioner has under the law, right
to be the in-charge Principal by virtue of belonging to Class II of the service, by
replacing the respondent No. 4 who is still in Class III.
The respondent No. 4 is not the regularly appointed Principal and only
happens to be an in-charge Principal with substantive appointment as Graduate
Teacher which is in Class III of the service, there is no scope of any comparison
of the inter se seniority of Clause VIII of the amalgamation order dated
15.07.2023, and in the facts and circumstance of the present case, there would
be no applicability of Clause VIII in the present claim of the petitioner.
Thereafter, the petitioner had filed representations on 30.09.2023,
28.12.2023 and 03.10.2024, with a prayer to appoint him as the Principal of
Sipajhar HS & MP School, to the Director of Secondary Education, Assam, but
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the same fails to evoke any response. Being aggrieved, the petitioner
approached this Court seeking the reliefs as aforesaid.
4. The respondent No.2 has filed affidavit in opposition wherein it has taken a
stand that as per the scheme of "Siksha Khetra" issued by the Government, vide
Notification No. ASE.481/2016/164, dated 03.08.2021, Sipajhar Academy High
School was amalgamated with Sipajhar HS & MP School, vide the office order
under memo No.DSE/GIS/Amal/429/2022/71-A, dated 15.07.2023. And before
such amalgamation, the petitioner i.e. Sri Nila Kanta Borah was the regular
Headmaster of Sipajhar Academy High School, Dist- Darrang. And as per
provision of the Government Notification No. ASE.481/2016/164, dated
03.08.2021, the petitioner was re-designated as Vice-Principal of Sipajhar HS &
MP School after amalgamation vide the office order No. E-468271/105, dated
07.06.2024, without any financial benefits. Though the petitioner, upon re-
designation as Vice-Principal of Sipajhar HS & MP School, claimed for Principal
in-charge of the same School on the strength of his re- designation as Vice-
Principal, yet, at present, Sri Abdul Latif, MA, B.Ed. Assistant Teacher of Sipajhar
HS & MP School is holding the charge of Principal in-charge of the School, since
the year 2021 as per order of the Directorate, issued vide No. GB-
EST/Apptt/FP/5/2021/32, dated 26.03.2021. It is also stated that, the Rule
12(3)(iii) of the Assam Secondary Education (Provincilaised Schools) Service
Rules of 2018, as amended prescribes that: "The candidate must have rendered
at least 5 years of service as Vice-Principal in any of the Provincialised Higher
Secondary School", but the petitioner was re-designated as Vice- Principal of
Sipajhar HS & MP School vide the office order dated 07.06.2024 and he does
not fulfill the criteria prescribed under Rule 12(3)(iii) of the Assam Secondary
Education (Provincialised School) Service Rules of 2018. It is also stated that
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this Court vide order, dated 23.03.2022, passed in W.P.(C) No. 3099/2020 (filed
by Bobita Engtipi -vs- North Cachar Hills Autonomous Council & 5
Ors) has held that- "It is too well settled Principle of law that one ad-hoc cannot
be replaced by another ad-hoc incumbent", and as such the claim of the
petitioner for allowing him to hold the charge of In-Charge Principal could not
be acceded to.
5. The respondent No.4 also has filed his affidavit in opposition denying the
statement and averment made by the petitioner. He stated that he obtained
M.A. Degree from Institute of Distance and Open Learning (IDOL) under
Gauhati University. The said M.A. (Assamese) degree, persuaded from the
Institute of Distance and Open University did not require the persuader to
attend the classes, regularly, however the persuader has to attend
examination as per schedule of each semester, being conducted on Sunday
only, which was held at Examination Centre of Kharupetia College, Darrang
and he appeared in the examinations without affecting his school duties. He
also stated that he was allowed to hold the charge of Principal-in-Charge of
Sipajhar H.S. and M.P. School by order dated 26.03.2021, and accordingly,
he has been discharging his duty till date, with financial power and the
petitioner was the Headmaster of Sipajhar Academy, Darrang and the said
Academy was amalgated by order dated 15.07.2023, under the Scheme
"Siksha Khetra" and as per said scheme, the writ petitioner was designated
as Vice Principal of Sipajhar H.S. and M.P. School. It is also stated that
though he has been receiving the salary of the Graduate Teacher, the same
does not negate the order dated 26.03.2021, passed by Respondent No.2.
Further, it is stated that in the year 2021, the writ petitioner was the
Headmaster of Sipajhar Academy and accordingly, he has no locus to
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challenge the order, which was passed in respect of Sipajhar H.S. and M.P.
School, for proper function of said school. And as per the scheme of "Siksha
Khetro" merger of different schools located within the same campus or in
nearby areas, is provided and as per Column 8 of Paragraph 3 of the said
Scheme, where he remained as Principal-in-Charge and the petitioner is
designated as the Vice Principal of the base school. It is further stated that
the order dated 07.06.2024 (Annexure-VI of the writ petition) was passed on
the basis of a petition dated 14.09.2023, filed by the petitioner, praying to
allow him to act as Principal-in-Charge of the school, however, the petitioner
had failed to challenge the order dated 07.06.2024, passed by the
respondent No.2, if he is really aggrieved by the said order, dated
07.06.2024. Further, it is stated that as per clause 7 of the order dated
15.07.2023, and as per column 8 of paragraph 3 of Office Memorandum
(Siksha Khetra) Scheme, he shall continue as Principal-in-Charge of highest
Level School after amalgamation and in the aforesaid Clause 7, it is no where
stated that said provision would be applicable only in respect of regularly
appointed Principal and as such, the claim of the petitioner that he has a
better claim to be the in-Charge Principal of amalgamated schools, is not
sustainable in view of the "Siksha Khetra" scheme, which has never been put
to any challenge by the petitioner and as such the writ petition, being devoid
merits, is liable to be dismissed.
6. The petitioner has filed one additional affidavit, bringing on record the
impugned order, dated 26.08.2021, which was not enclosed with the writ
petition on the date of filing. But, the petitioner has failed to amend the para
5 of the petition and also the prayer in the petition, where it is stated that
the impugned order is dated 01.04.2021.
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Submissions:-
7. Ms. Barua, learned counsel for the petitioner, submits that the
petitioner has been serving as Vice Principal from the date of his re-
designation and having been re-designated, his cadre stood changed to
Class II. On the other hand, the respondent No.4 belongs to Class III cadre
and now the petitioner is required to serve under an In-charge Principal, who
is a person from a lower cadre, which is contrary to the basic and
fundamental principle of service law that a person serving in a higher cadre
and also drawing a higher scale of pay cannot be subjugated in terms of
duties, responsibilities and also to follow orders and directions of a person,
who is serving in a lower cadre and drawing a lower scale of pay.
7.1 Further submission of Ms. Barua is that though, the respondent No. 2
trying to justify as to under what circumstance the respondent No. 4 was
allowed to be the In-charge Principal, by referring to Rule 12(3)(ii) of the
Assam Secondary Education (Provincialised Schools) Service Rules of 2018,
Order No. E-468271/105, dated 07.06.2024 issued by the Director of
Secondary Education, Assam, Office Memorandum dated 28.07.2014, issued
by the Secretary to the Government of Assam, Secondary Education
Department and Notification/Office Memorandum No. ASE.481/2016/17,
dated 22.09.2016, issued by the Principal Secretary to the Government of
Assam, yet the same is not acceptable. The said provisions would have
benefited the respondent No. 4, had he also been in the same cadre and
also drawing the same scale of pay as that of the petitioner. The propositions
referred to do not answer the question that a person serving in a lower
cadre and drawing a lower scale of pay can continue to be the In-charge
Principal and have superintendence over the petitioner, who is otherwise
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serving in a higher cadre and also drawing a higher scale of pay.
7.2. Further submission of Ms. Barua is that though, the State respondent
had taken a stand that the petitioner does not have five years of experience
as Vice Principal, yet the same is also not acceptable as the petitioner, upon
amalgamation was not given a fresh appointment as Vice Principal, but, was
re-designated, meaning thereby he will carry forward along with him his
experiences and other eligibilities from 11.07.2011, when he was regularly
appointed as Headmaster and the same cannot be wiped out upon re-
designation. And even the respondent No. 4 had also never been a Vice
Principal and as such, he does not have the requisite eligibility, in terms of
Rule 12(3)(iii) of Provincialised Schools Service Rules of 2018, at all and
having experience of more than 15 years as a Post Graduate Teacher in
terms of Rule 12(3)(ii), the petitioner is otherwise eligible to hold the post of
a Principal. Therefore, it is contended to allow this petition.
8. Per contra, Ms. Das, learned Standing Counsel for the respondent Nos.
1, 2 & 3 has vehemently opposed the petition. Ms. Das has supported the
action taken by the respondent No. 2 and she also submits that allowing the
respondent No.4 to hold the charge of In-Charge Principal, is an adhoc
arrangement and such adhoc arrangement, cannot be replace by another ad-
hoc arrangement in view of the decision of a co-ordinate Bench of this Court
in WP(C) No. 3099/2020. Referring to Rule 12(3)(ii) of the Assam Secondary
Education (Provincialised Schools) Service Rules of 2018, Ms. Das submits
that for being appointed as Principal, one must have 5 years experience as
Vice Principal, which the petitioner does not possess as he was re-designated
recently on 07.06.2024. Under such circumstances, Ms. Das has contended
to dismiss this petition.
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9. On the other hand, Mr. M. Hossain, learned counsel for the respondent
No. 4, submits that the respondent No. 4 is serving as Graduate Teacher in
the Sipajhar H.S. and M.P. School and he was allowed to hold the charge of
In-Charge Principal of Sipajhar H.S. and M.P. School vide order dated
26.03.2021. At that point of time, the petitioner had never born in the
present cadre as his school was amalgamated only on 15.07.2023, with the
present school and he was re-designated only on 07.06.2024 and that he has
no cause of action to challenge an order which was passed long back, when
he was never born in the cadre.
9.1. Mr. Hossain also submits that as per the scheme of "Siksha Khetra" and
as per Column 8 of Para 3 of the said Scheme, the respondent No. 4
remained as Principal-in-Charge and the petitioner is designated as the Vice
Principal of the base school and that the petitioner has failed to challenge
the order dated 07.06.2024, passed by the respondent No. 2, if he is really
aggrieved regarding the order dated 07.06.2024. Further, Mr. Hossain
submits that as per clause 7 of the order, dated 15.07.2023, and as per
column 8 of paragraph 3 of Office Memorandum (Siksha Khetra) Scheme, he
shall continue as Principal-in-Charge of highest Level School after
amalgamation. It is also the submission of Mr. Hossain that in Clause 7, no
where it is stated that said provision would be applicable only in respect of
regularly appointed Principal and as such the claim of the petitioner has no
basis at all, and therefore, it is contended to dismiss the petition.
Discussion and Analysis:-
10. Having heard the submissions advanced by the learned counsel for both
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the parties, I have carefully gone through the petition and the documents
placed on record and also perused the Scheme called 'Siksha Khetra'; order,
vide Memo No. DSE/GIS/ Amal/429/2022/71-A, dated 15.07.2023, issued by
the Director of Secondary Education, Assam, by which the Sipajhar Academy
was amalgamated with Sipajhar H.S.and M.P. School; the office order, No. E-
468271/105, dated 07.06.2024, by which the petitioner was re-designated as
Vice-Principal of Sipajhar HS & MP School, after amalgamation. Also, I have
gone through the order dated 26.03.2021, being No. GB-
EST/Apptt/FP/5/2021/32, by which the respondent No. 4 was allowed to hold
the charge of Principal in-charge of the School and, the order dated
23.03.2022, passed in W.P.(C) No.3099/2020 (filed by Bobita Engtipi
-vs- North Cachar Hills Autonomous Council & 5 Ors)
11. Before a discussion is directed, to the issue raised in this petition, it
would be for interest of justice to peruse the relevant rule. Here the relevant
Rule is Rule 12 of the Assam Secondary Education (Provincilaised Schools)
Service Rules of 2018, which read as under:-
12. Recruitment to Principal and procedure thereof:-
(1) The posts of the Principal in provincialised
Higher Secondary Schools shall be filled up by direct
recruitment from the candidates amongst the cadre of
Post Graduate Teachers of Senior Secondary and Higher
Secondary School and Graduate Teachers of Higher
Secondary School as per procedure under sub-rule (5).
(2) The posts of the Principal in provincialised
Senior Secondary Schools shall be filled up by direct
recruitment from the candidates amongst the cadre of
Post Graduate Teachers of Senior Secondary and Higher
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Secondary School as per procedure under sub-rule (5).
Explanation:- The Senior Secondary and Higher
Secondary School shall include any Senior Secondary
and Higher Secondary School in the State.
(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.;
(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
(iv) The candidate must have 17 years of teaching
experience as Graduate Teacher in any Higher
Secondary School;
(v) The age of the candidates must not be more
than 57 years as on 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
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period rendered prior to provncialisation of the
School shall not be counted;
(vi) The candidate must possess commanding
personality, administrative ability, leadership
skills and integrity.
11.1. Thus, it appears that Rule 12(3)(iii) of the Assam Secondary
Education (Provincilaised Schools) Service Rules of 2018, as amended up to
date and it prescribes that the candidate, for being appointed as Principal,
must have rendered at least 5 years of service as Vice-Principal in any of the
Provincialised Higher Secondary School.
11.2. Admittedly, neither the petitioner nor the respondent No.4 had served
in the post of Vice-Principal for five years. The petitioner is, therefore, not
eligible for being appointed as regular Principal of Sipajhar H.S. and M.P.
School.
12. Indisputably, by the order, dated 26.03.2021, the respondent No. 4 was
allowed to hold the charge as an adhoc arrangement. The said order read as
under:-
No.GB-EST/Apptt/FP/5/2021/32,- Date 26/03/2021
O R D E R
Until further order, Abdul Latif, M. A., B. Ed.
Assistant Teacher of Sipajhar H. S. & M. P. School,
District: Darrang, is here allowed to hold the charge
of Principal in-charge of the same school along with
financial power to draw 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
Md. Rafiquiddin Ahmed, Principal will be retired on
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31-03-2021.
This is a purely temporary arrangement and will be
come into force we.f. 01-04-2021.
Sd/-(P.Jidung, AES)
Director Secondary Education, Assam,
Kahilipara, Guwahati-19
13. Now, the issue, to be addressed is, can an adhoc employee be replaced
by another adhoc employee?
13.1. This issue came before this Court for consideration in the case of
Mina Goswami vs. State of Assam and Others, in W.P.(C) No.
712/2022, wherein, it has been held that it cannot be lost sight of the
settled position of law that an adhoc employee cannot be replaced by
another adhoc employee and he can be replaced only by another candidate
who is eligible for being regularly appointed by following a regular procedure
prescribed.
13.2. The aforesaid proposition also finds approval from a decision of
Hon'ble Supreme Court, in the case of Hargurpratap Singh vs. State
of Punjab, reported in 2007 SCeJ 003, wherein, it has been held that it is
not at all appropriate to displace one ad hoc arrangement by another ad hoc
arrangement.
13.3. Further, in the case of Manish Gupta and Another vs.
President, Jan Bhagidari Samiti, in Civil Appeal Nos. 3084
3088/2022 {Arising out of Special Leave Petition (Civil) No. 12946
12950/2017} also Hon'ble Supreme Court has held that -
"It is a settled principle of law that an ad hoc
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employee cannot be replaced by another ad hoc employee
and he can be replaced only by another candidate who
is regularly appointed by following a regular
procedure prescribed."
13.4. In view of above legal matrix, the contention of the petitioner is found to
be unacceptable and the submission, advanced by Ms. Barua, the learned
counsel for the petitioner also left this Court unimpressed.
14. On another count also the submission of Ms. Barua is not acceptable. A Co-
ordinate Bench of this Court, in the case of Jagannath Pegu vs. State of
Assam and Others, reported in 2007 (3) GLT 389, has held that a candidate
eligible in terms of the relevant Rules for promotion to a post on a regular basis
cannot be overlooked for the purpose of any temporary arrangement concerning
the post. Meaning thereby, for being eligible to be considered for ad-hoc interim
arrangement against a post, it is only a person who satisfies the eligibility
criteria mandated for being considered for promotion to the said post on regular
basis can only be considered for holding such posts on in-charge basis and any
person, not otherwise, eligible for being considered for promotion to such post
on regular basis, cannot also be considered for the purpose of holding the
charge of the post pending a regular selection.
14.1. The aforesaid proposition of law is followed in the case of Gobin
Sarmah vs. State of Assam and Others, in W.P.(C) No. 2621/2022 and
the said decision was affirmed by a Division Bench of this Court in the case of
Samir Mazumdar vs. State of Assam and Others, in WA No. 124/2022.
15. It also appears that the amalgamation of the petitioner's school
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with the school of respondent No.4 was done as per NOTIFICATION (OFFICE
MEMORANDUM) dated 22nd September, 2016, issued vide No.
ASE.481/2016/17, on the subject "Siksha Khetra-a scheme for amalgamation
and merger of different schools," which was published in The Assam Gazette
on 23rd March, 2017, 2nd Chaitra, 1939 (SE). Column (7) of paragraph 3 of
the said Notification (Office Memorandum) read as under:-
"(7) In the event the highest school is High School,
the Headmaster of the High School shall continue after
amalgamation. The post of Headmaster of ME School
shall be re-designated as Assistant Headmaster with
same pay scale whatever they are drawing and the post
shall be held by the existing Headmaster of the ME
School without requiring the qualification for the
post of Assistant Headmaster. However, after cessation
of the services of such Assistant Headmaster, the
vacancy shall be filled up from the candidates having
requisite qualification as per procedure stipulated in
the Service Rules in force."
15.1. Column (8) of paragraph No. 3 of the said Notification (Office
Memorandum) reads as under:-
"(8) In the event the highest school is Junior College,
the Principal of the Junior College shall continue
after amalgamation. The post of Headmaster of High
School shall be re-designated as Vice Principal with
same pay scale whatever they are drawing and the post
shall be held by the existing Headmaster of the High
School without requiring the qualification for the
post of Vice Principal. However, after cessation of
the services such Vice Principal, the vacancy shall be
filled from the candidates having requisite
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qualification as per procedure stipulated in the
Service Rules in force."
16. In the case in hand, the highest school is Higher Secondary and
Multipurpose School. And the respondent No. 4 is the In-Charge Principal of
the said school. And in view of the Column 7 and 8 of paragraph 3 of the
said notification, the petitioner shall continue to act as Vice-Principal after
amalgamation, and nowhere in Clause 7, it is stated that it would be
applicable in the case of regularly appointed Principal only. Thus, in view of
this provision also, the respondent No. 4 is entitled to continue and as such,
the respondent No. 2, in the order, dated 26.03.2021, has allowed the
respondent No. 4 to continue him as In-Charge Principal of the said School.
17. This Court has considered the facts, which have been placed before this
Court at the time of argument by the learned counsel for the petitioner. But,
in view of the factual and legal matrix, discussed herein above, this Court is
unable to record concurrence to the same. Though it was argued that the
respondent No.4, who has been serving in a lower cadre and drawing a
lower scale of pay cannot continue to be the In-charge Principal and have
superintendence over the petitioner who is otherwise serving in a higher
cadre and also drawing a higher scale of pay, yet, neither there is any case
law nor any service instructions, which lays down a blanket proposition that
a Group B/Class II employee can never be under the administrative control
of a Group C/Class III employee. The learned counsel for the petitioner has
failed to produce any such material before this Court to supplement weight
to such argument.
Page No.# 19/20
18. Similarly, in absence of any legal framework, this Court is also unable to
agree to the submission of Ms. Barua, the learned counsel for the petitioner,
that the petitioner will carry forward along with him his experiences and
other eligibilities from 11.07.2011, when he was regularly appointed as
Headmaster and the same cannot be wiped out upon re-designation. There
is no such whisper in the Assam Secondary Education (Provincialised
Schools) Service Rules of 2018.
19. Thus, on the following counts, the petitioner herein, is not entitled to
the relief, as prayed for:-
(i) Firstly, the petitioner is not qualified in terms of Rule 12(3)(iii) of
the Assam Secondary Education (Provincilaised Schools) Service
Rules of 2018, as amended up to date, for being selected as
regular Principal.
(ii) Secondly, allowing the respondent No.4 to hold the charge of In
-Charge Principal is an ad hoc arrangement and he cannot be
replaced by the petitioner, to hold the charge of In- Charge
Principal, as the same also would be an adhoc arrangement. It is
also well settled proposition of law that an adhoc employee
cannot be replaced by another ad hoc employee, and he can be
replaced only by another candidate, who is regularly appointed
by following a regular procedure prescribed.
(iii) Thirdly, in view of the Column 8 of Paragraph No. 3, of the Office
memorandum dated 22.09.2016, the respondent No. 4 is entitled
Page No.# 20/20
to continue as In-Charge Principal after amalgamation as he has
been holding the charge of In-Charge Principal with effect from
26.03.2021, much prior to amalgamation of the schools on
15.07.2023.
Conclusion:-
20. In view of the aforementioned factual as well as legal matrix, this Court
is of the considered view that there is no merit in this petition. Accordingly,
the same stands dismissed leaving the parties to bear their own costs.
JUDGE
Comparing Assistant
