Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 3 Ors on 5 February, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

Page No.# 1/9

GAHC010157762023

2025:GAU-AS:1142

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

Case No. : WP(C)/4449/2023

ABHIJIT BORA
S/O- LILA KANTA BORA,
ASSISTANT TEACHER, MA, B.ED.,
TEZPUR ACADEMY HIGHER SECONDARY SCHOOL,
R/O- MAZGAON, JYOTINAGAR,
NIKAMUL SATRA, TEZPUR,
DIST.- SONITPUR, ASSAM,
PIN- 784001.

VERSUS

THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION
DEPARTMENT),
ASSAM (CIVIL) SECRETARIAT,
BLOCK-C, DISPUR, GUWAHATI,
ASSAM, PIN- 781006.

2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI
ASSAM

PIN- 781019.

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

4:ANJANA BORAH
SUBJECT TEACHER
Page No.# 2/9

CUM I/C PRINCIPAL

TEZPUR ACADEMY HIGHER SECONDARY SCHOOL

TEZPUR
DIST.- SONITPUR

ASSAM
PIN- 784001

Advocate for the Petitioner : MR. A K DUTTA, MR. B PURKAYASTHA

Advocate for the Respondent : SC, SEC. EDU., MR. N BORAH (r-4),MR M.J. BHARALI (r-4)

Linked Case : WP(C)/2486/2024

ABHIJIT BORA
S/O- LILA KANTA BORAH
ASSISTANT TEACHER
MA
B.Ed. TEZPUR ACADEMY HIGHER SECONDARY SCHOOL

R/O-MAZGAON
JYOTINAGAR
NIKAMULSATRA
TEZPUR
DIST- SONITPUR
ASSAM
PIN-784001

VERSUS

THE STATE OF ASSAM AND 2 ORS (H)
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM
DEPARTMENT OF SCHOOL EDUCATION
(SECONDARY EDUCATION DEPARTMENT) ASSAM
(CIVIL) SECRETARIAT
BLOCK-C
DISPUR
JANATA BHAWAN
GUWAHATI-6.

2:THE DIRECTOR OF SECONDARY EDUCATION

ASSAM
Page No.# 3/9

KAHILIPARA
GUWAHATI-19.

3:THE INSPECTOR OF SCHOOLS
SONITPUR DISTRICT CIRCLE
TEZPUR
ASSAM
------------
Advocate for : MR. B PURKAYASTHA
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS (H)

BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

ORDER

05.02.2025

1. Heard Mr. B. Purkayastha, learned counsel for the petitioner in both the cases. Also heard Mr. B. Kaushik, learned counsel for the Secondary Education Department. Mr. N. Borah, learned counsel appears for the respondent no.4 in WP(C) 4449/2023.

2. In WP(C) 4449/2023, the petitioner's grievance is that the respondent no.4 has been made the In-charge Principal of Tezpur Academy Higher Secondary School, Tezpur, even though the respondent no.4 is junior to the petitioner. In WP(C) 2486/2024, the same petitioner has prayed for setting aside the letter dated 19.12.2023 issued by the Director of Secondary Education, Assam and the impugned notice dated 27.02.2024 issued by the Inspector of Schools, Sonitpur, Assam, along with the disciplinary proceedings initiated against the petitioner, on the charge that the petitioner had acquired academic/professional qualification during his service period without obtaining the previous permission of the Appointing Authority. As such, it was prima facie found that the petitioner Page No.# 4/9

had violated Rule 13 of the Assam Civil Service (Conduct) Rules, 1965 (hereinafter referred to as the "1965 Rules"), which attracted the penalties prescribed under Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the "1964 Rules").

3. The petitioner's case is that the petitioner being senior to the respondent no.4 and having the eligibility criteria for being appointed as a regular Principal of the Higher Secondary School, the petitioner should have been selected as the In-charge Principal of the said school, instead of the respondent no.4, who was junior to him in service.

4. The petitioner's counsel submits that the petitioner had not been given the post of In-charge Principal of the Higher Secondary School on the allegation that the petitioner had acquired his B.Ed Degree from R.C. Saharia Teacher Training College, Tongla, Mongaldoi, without obtaining the prior approval of the Appointing Authority, which in this case is the Inspector of Schools.

5. The petitioner's counsel submits that the petitioner had been given prior permission by the Inspector of Schools to pursue his B.Ed Course and as such, was granted Earned Leave for the same. He thus acquired the B.Ed Degree in the year 2013 from R.C. Saharia Teacher Training College, Tongla, Mangaldoi. He also submits that even though the allegation against petitioner is to the effect that he had not obtained the prior permission of the Appointing Authority for pursuing his B.Ed Degree, the same by itself did not invalidate the B.Ed Degree obtained by him and as such, the petitioner being senior to the Page No.# 5/9

respondent no.4, the petitioner should have been given the charge of In-charge Principal. In this regard, he has relied upon the judgments of this Court in the case of Ranjit Kumar Baruah vs. The State of Assam & Others, [WP(C) 1925/2024] and in the case of Tankeswar Nath vs. The State of Assam & Others, [WP(C) 5419/2023].

6. Mr. B. Kaushik, learned counsel for the Secondary Education Department submits that he has got no quarrel with the submission made by the petitioner's counsel, with regard to the fact that even though there is an allegation that the petitioner had acquired his B.Ed Degree without obtaining the prior permission of the competent authority to pursue his B.Ed Degree, the acquisition of the B.Ed Degree by the petitioner without permission did not invalidate the B.Ed Degree itself. He submits that the petitioner being senior to the respondent no.4 in service and having all the eligibility criteria, the petitioner should have been given the charge of Principal of the Higher Secondary School. He submits that due to the petitioner having acquired the B.Ed Degree without obtaining prior permission of the competent authority, a departmental proceeding has been initiated against the petitioner. However, due to a restraining order dated 19.06.2024 being issued by this Court in WP(C) 2486/2024, restraining the disciplinary authority from issuing final orders in the departmental proceeding, the departmental proceeding has come to a grinding halt. He also submits that the petitioner's challenge to the letter dated 19.12.2023 and 27.02.2024 is not sustainable, as the same are Circulars issued to all the Inspector of Schools within the State of Assam, who are to report violations of Rule 13 of the 1965 Rules.

Page No.# 6/9

7. Mr. N. Borah, learned counsel for the respondent no.4 submits that the petitioner had acquired his B.Ed Degree by attending a regular college, i.e. R.C. Saharia Teacher Training College, Tongal, Mangaldoi, which was 106 kms away from the school in which the petitioner was giving classes. He submits that the petitioner had to miss his classes in the school to attend the college on a regular basis, thereby violating the Conduct Rules, which would entail attracting penalties prescribed under the 1964 Rules. He accordingly submits that when there has been a violation of the Conduct Rules by the petitioner, the petitioner cannot be allowed to hold the charge of Principal during the pendency of the departmental proceeding.

8. I have heard the learned counsels for the parties.

9. The contents of the pleadings and the submissions made by the counsels for the parties show that the petitioner is senior to the respondent no.4 in service as a teacher, having Graduate Pay Scale, which is the minimum pay scale required for being appointed as a Principal/In-charge Principal of a Higher Secondary School. Both the petitioner and the respondent no.4 also have the required educational qualification for being appointed as a Principal/In-charge Principal of the Higher Secondary School.

10. In terms of Rule 12(1) of the Assam Secondary Education (Provincialised Schools) Rules, 2018 (hereinafter referred to as the "2018 Rules"), for recruitment to the post of Principal in a provincialised Higher Secondary School, the candidate must have rendered at least 15 years of service as Post Graduate Page No.# 7/9

Teacher in any of the provincialised Higher Secondary/Senior Secondary School. In the present case, the respondent no.4 does not have 15 years of service as a Post Graduate Teacher in terms of Rule 12(2) of the 2018 Rules. The petitioner on the other hand has the required 17 years of teaching experience as a Graduate Teacher in a Higher Secondary School, in terms of Rule 12(4) of the 2018 Rules.

11. Thus, on considering the above, it is quite apparent that the petitioner should have been selected as In-charge Principal of the school, as the respondent no.4 was junior to the petitioner in service in the said school.

12. The other issue to be decided is as to whether the petitioner's B.Ed Degree can be said to be invalid, just because the Appointing Authority had allegedly not given prior permission to the petitioner to acquire the said Degree. In this respect, the judgment of this Court in Tankeswar Nath (supra) and in the case of Smti. Mouchumi Saharia vs. Smriti Rekha Kalita & Others, [I.A.(C) 2615/2023] are required to be discussed. In the case of Smti. Mouchumi Saharia (supra). it has been held that the provisions of Rule 13 of the 1965 Rules provides that a Government servant cannot join or attend any educational institution or appear at any examination of a recognized board or university without obtaining prior permission. From such point of view, it can be accepted that the writ petitioner may obtain the Degree in violation of Rule 13 of the 1965 Rules. The Court further held that if the act of the writ petitioner would have to be construed to be a misconduct under the 1965 Rules, the appropriate remedy would be to initiate a disciplinary proceeding against the person for having committed a misconduct under the 1965 Rules. But, a Page No.# 8/9

misconduct of such nature of having obtained a degree from a university without obtaining permission, cannot lead to a conclusion that the degree obtained from a university itself is untenable in law. These findings made in the judgment cited above, have also been relied upon in the judgment and order dated 21.01.2025 passed by a Coordinate Bench in WP(C) 1925/2024 (Ranjit Kumar Baruah vs. The State of Assam & Others). This Court is in respectful agreement with the reasoning of the Co-ordinate Bench.

13. In view of the above reasons, the B.Ed Degree obtained by the petitioner cannot be said to be an invalid degree, only on account of an allegation that the B.Ed Degree was obtained without obtaining the prior permission of the Appointing Authority. In that view of the matter, this Court is of the view that the B.Ed Degree acquired by the petitioner is a valid degree. Thus, the petitioner would have to be appointed as In-charge Principal of the Higher Secondary School in place of the respondent no.4, till a regular selection to the post of Principal of the said school is made, as he is more senior. Further, to allow a junior person to hold a higher post, even as an in-charge, would naturally cause heart burn between faculty members.

14. The above being said, the fact remains that a departmental proceeding has been initiated against the petitioner, on the ground that a misconduct had been committed by the petitioner, in terms of the 1965 Rules, which entails prescribing penalties under the 1964 Rules. The articles of charge framed against the petitioner in the departmental proceeding, pertains to the same issue that has been referred to in the foregoing paragraphs, i.e. the petitioner obtained his B.Ed Degree/Master Degree without obtaining the prior permission Page No.# 9/9

of the Appointing Authority.

15. On considering the fact that the departmental inquiry is still pending before the petitioner, this Court is of the prima facie view that it might not be proper to have the petitioner as an In-charge Principal, until and unless the departmental proceeding has been taken to it's logical conclusion. However, it has also to be kept in mind that the petitioner's case cannot be kept hanging, just because a departmental proceeding is pending and not being concluded by the authorities. Further, the guilt of a delinquent officer against the charge framed, would only be decided after conclusion of a departmental proceeding.

16. In view of the above reasons, this Court is of the view that the departmental proceeding should continue and be completed at the earliest and positively within a period of 2 (two) months from the date of receipt of a certified copy of this order. In the event the departmental proceeding is not completed within a period of two months from the date of receipt of a certified copy of this order, the State respondents shall appoint the petitioner as In- charge Principal of the said Higher Secondary school in place of the respondent no.4. The outcome of the departmental proceeding shall thereafter decide as to whether the petitioner will continue as In-charge Principal of the said school.

17. Both the writ petitions are accordingly disposed of.

JUDGE

Comparing Assistant