Gauhati High Court
Dipali Sen vs The State Of Assam And 3 Ors on 15 October, 2014
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal
Pradesh)
WRIT PETITION(C) No. 3556/2014
Dipali Sen
W/o Shri Bibekananda Sen,
Girl's ME Schoo Road,
PO & PS- Badarpur ,
Dist. - Karimganj
.. Petitioner
-Versus-
1) The State of Assam to be represented
by the Commissioner & Secretary to the
Govt. of Assam, Education (Elementary) Dept.,
Dispur, Ghy-6.
2) The Director, Elementary Education,
Assam, Kahilipara, Ghy-9
3) The District Elementary Education Officer,
Karimganj, PO - Karimganj, Dist. Karimganj,
4) Bijoy Ketal Purkayastha,
S/o Late Bhupenanda Kumar Purkayastha,
Badarpur Ghat (near Nirala Pharmacy),
PO- Badarpur Ghat, Dist. Karimganj
.. Respondents
PRESENT HON'BLE MR. JUSTICE T. VAIPHEI For the Petitioner ... Mr. MH Rajborbhuiya, Mr. W Rahman, Mr. P. Hatigayari, Advocates.
For the respondents ... Mr. Sarma, SC, Elementary Education Mr. N. Dhar, Ld. Counsel for Respondent No.4.
Date of Hearing ... 22.08.2014.
Date of judgment ... 15-10-2014
WP(C)No.3556/2014 Page 1 of 11
JUDGMENT & ORDER (CAV)
With the consent of the learned counsel appearing for all the parties, this writ petition was heard at length and was reserved for judgment. The judgment is being delivered today. The perpetual rivalry between the Government employees over there inter-se seniority is once again confronting this Court in this writ petition. Heard Mr. MH Rajbarbhuiya, the learned counsel for the petitioner and Mr. N. Sarma, the learned standing counsel, Elementary Education Department as well as Mr. N. Dhar, the learned counsel for the private respondent (respondent No.4).
2. The case of the petitioner, as pleaded by her, is that she was appointed as Assistant Teacher of Badarpur Public ME School on 28.3.1987, and is a Graduate by academic qualification. She passed MA in English and has also obtained certificate in Primary Education from IGNOU. She has already been selected for promotion to the post of Headmaster of Upper Primary schools vides Annexure-4. As the senior-most Assistant Teacher, she has the lawful claim to be promoted to the post of Headmaster, but she has been deprived of such promotion. According to the petitioner, the private respondent is a matriculate by qualification and was appointed as Assistant Teacher of the school on 31.5.1977 even though the requisite qualification at that time for appointment as Assistant Teacher of M.E. School was Normal Matric or any Higher Secondary level examination passed. At the time of provincialization of the WP(C)No.3556/2014 Page 2 of 11 school, according to the petitioner, the service of the private respondent was not regularised due to lack of this requisite qualification. In the year 1988, he was given the chance of undergoing Normal Training for acquiring the requisite qualification, but he failed. It was only on 19.4.2012 that the private respondent passed the Higher Secondary School examination whereafter only he became qualified for the post of an Assistant Teacher. According to the petitioner, the seniority of the private respondent can be counted only with effect from 19- 4-2012 when he acquired the requisite qualification for the post of Assistant Teacher. However, on the retirement of the Headmaster of the School on 31-1-2013, the respondent authorities allowed the private respondent to hold the charge of the post of Headmaster of the School. Aggrieved by this, the petitioner submitted her appeal to the respondent No.2 on 4.2.2013. Apprehending that her appeal is likely to affect the position of the private respondent, the petitioner filed a writ petition being WP(C) No.2962/2013 before this Court, which by the order dated 27.11.2013 disposed of the writ petition by directing the respondent No.2 to resolve the dispute by passing a reasoned order within 31.12.2013. The respondent No.2, after hearing the petitioner and the private respondent passed the order dated 4-6-2014 holding that the private respondent is senior to her. Aggrieved by this, the petitioner is now approaching this Court by way of this writ petition for appropriate relief.
3. The contention of the petitioner is that the private respondent is a HSLC passed and was appointed in the venture WP(C)No.3556/2014 Page 3 of 11 stage of the Badarpur Public ME School by the Managing Committee on 31.5.1977. On 27.1.1988 the private respondent made a prayer for obtaining the due qualification and was thereafter was deputed for Normal training but he failed repeatedly in the training. Thereafter while continuing as under- qualified teacher, the private respondent was allowed to appear in the HSS examination by the order dated 9.2.2010 issued by the District Elementary Officer and as per the entry in his service book, the private respondent passed the Higher Secondary examination only on 19.4.2012. When he passed the said examination on 19.4.2012, he became qualified for the post of Assistant Teacher and that his seniority has to be counted from this date only.
4. It is further contended by Mr. M.H. Rajbarbhuiya, the learned counsel for the petitioner that the respondent No.2, without considering the relevant provision of law relating to qualification and appointment of Assistant Teacher and the Notifications providing the procedure for promotion to the post of Headmaster, issued the impugned order by showing the private respondent senior to him, thereby allowing him to count the services rendered by him prior to 19.4.2012 as qualified Assistant Teacher though he was only a matriculate as against the petitioner, who joined as a Graduate on 28.3.1987. It is, therefore, contended by him that the impugned order is illegal and is liable to quashed by restoring the seniority of the petitioner over the private respondent. On the other hand, Mr. N. Sarma, the learned standing counsel for the Education (Elementary) Department, Govt. of Assam, supports the WP(C)No.3556/2014 Page 4 of 11 impugned order and submits that the interference of this Court is not called for on the facts and circumstances of this case. Mr. N. Dhar, the learned counsel for the private respondent, submits that the petitioner is not qualified for the post of Headmaster and, as such, her seniority is immaterial and cannot, therefore, claim seniority over the private respondent. Having not qualified for the post, submits the learned counsel, the petitioner has no locus standi to challenge the status of the private respondent, and the impugned order holding that the private respondent is senior to the petitioner is, therefore, unassailable.
5. After hearing the learned counsel appearing for the rival parties and on perusing the materials on record, the short question which calls for consideration in this writ petition is, whether the seniority of the private respondent can be counted with effect from 19-4-2012 when he passed the HSSC examination or from the date of his initial appointment as Assistant Teacher i.e.1-10-1977. Clause 5 of the Procedure for Promotion to the post of Headmasters of ME/ME Madrassa/MV and Senior Basic Schools prescribes the qualification for the post of Headmasters, which reads thus:
(5) The Teacher who have passed at least Matric/HSLC, Normal or have at least Intermediate or its equivalent qualification or above and have successfully undergone necessary training as may be prescribed by the Department shall only be considered for promotion. However, the teacher who have completed minimum 15 (fifteen) years of continuous service but have no facilities provided to him/her for WP(C)No.3556/2014 Page 5 of 11 the prescribed training may also be considered for promotion provided there is nothing adverse against him."
6. Thus, from the provision extracted above, it becomes evident that a teacher can become eligible for the post of Headmaster of ME School if he passed Matric/HSLC Normal or at least an Intermediate or an academic qualification equivalent thereto. However, the second limb of the clause enables a Teacher to be eligible for the post of the Headmaster if he has completed a minimum of fifteen years of continuous service but who has never been provided with the facilities for the prescribed training subject, however, to the condition that there is nothing adverse against him. Thus, to become a Headmaster, a Teacher need not pass HSS Examination provided he has completed fifteen years of continuous service and has never been provided with the facilities of the prescribed training subject to the absence of any adverse remark against him.
7. There is no dispute that the petitioner was already a Graduate in Arts in the year 1987 when she was appointed as the Assistant Teacher of the School, was regularised to the post on 29-1-1994 and was confirmed on 7-1-2014 with effect from 25-8-1993. She completed the Departmental Training Certificate conducted by the IGNOU in 2010. Under the circumstances, the petitioner is eligible for the post of the Headmaster as she has also completed more than 10 years of continuous service. Her service having been regularized from 25-8-1993 and having undergone the necessary training, she is now eligible for the post of Headmaster. This appears to be the reason for selecting her to WP(C)No.3556/2014 Page 6 of 11 this post by the District Level Selection Committee on 14-9-2011. On the other hand, though the private respondent may have completed more than 15 years of continuous service, he passed the HSS examination, which is the minimum qualification for the post of Headmaster, only on 19-4-2012 and, as such, his seniority shall have to be counted with effect from 19-4-2012. No seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits validly appointed in the meantime. In other words, the private respondent became eligible for the post of Headmaster after he passed the HSS Examination on 19-4-2012.
8. In K. Balaram Raju v. V. Subramanya Sarma and others, (2011) 13 SCC 574, the Apex Court had an occasion to consider a case of this nature. In that case, it was contended by the first respondent therein that under Rules 7(7) and 8(4) of the A.P. High Court Service, 1971, the requisite qualification for the post of Computer was to possess a degree in typewriting, capability in English in higher grade, and postgraduate diploma in computer programming or postgraduate diploma in computer applications. He had this qualification and therefore he applied for that post, and when the test was conducted on 1-11-2000, he cleared that examination. Nine other candidates also cleared the said test including the three appellants in SLPs Nos. 598 and 5318 of 2009. However, they did not possess the aforesaid requisite qualification of post graduate diploma in computer programming or post graduate diploma in computer applications. The High Court Administration, however, issued an order dated 7-11-2000 permitting them along with two others to acquire the WP(C)No.3556/2014 Page 7 of 11 requisite prescribed qualification within one year failing which they were to be reverted. In this order dated 7-11-2000 the three appellants in SLPs Nos. 598 and 5318 of 2009 were shown at Serial No. 1, 2 and 3, whereas the first respondent was shown at Serial No. 4.
9. Aggrieved by that, the first respondent filed a writ petition before the High Court. The Division Bench of the High Court took the view that since the first respondent had those qualifications right at the outset, the first respondent ought to have been shown senior over the three appellants in SLPs Nos. 538 and 5318 of 2009. The High Court, therefore, allowed the writ petition and quashed the gradation list. Special Leave Petitions were then preferred by the appellants before the Apex Court, which dismissed the appeals. Paragraphs 31 and 32 of the judgment are relevant for our purpose, and are, therefore, reproduced below:
"31. The power of the Chief Justice under Rule 23 states that if relaxation under the Rule is made applicable to the case of any person, the case shall not be dealt with in any manner less favourable to the candidate than that provided by that Rule. However, this Rule cannot be read to mean that while granting the benefit under this Rule, the beneficiary can be placed at an advantage as against the one who is otherwise qualified and does not need the relaxation. The first respondent had the necessary qualification when he appeared for the examination, and on his appointment by direct recruitment under the order dated 7-11-2000, his probation will start immediately thereafter WP(C)No.3556/2014 Page 8 of 11 under Rule 10(1). The probation of the three appellants will start only after they obtain their qualification. The power of relaxation exercised by the Chief Justice in their case can only get them into the service since adequate numbers of Computer Operators were not available and their appointments will be regularised when they get their qualification.
32. The selection was done after a test and on the basis of merit. Possessing the necessary diploma certificate was a part of the qualification and merit. The passing of the examination required 45 marks. Obviously those who had the qualification and who obtained 45 marks and above will have to be placed at the top of the list in seniority. Who did not have the qualification at that time but obtained it later on, even if they had obtained higher marks in the test will have to be placed at a position lower than these candidates having qualification and necessary marks. As far as the respondent is concerned, his probation having started earlier he will complete the same earlier to Appellants 1, 2 and 3and will have to be reckoned senior to them. The governing rules will have to be read and applied meaningfully in this manner so that no prejudice will be done to a candidate who otherwise had the qualifications and who is appointed after the test. It is settled law that one should have the qualifications on the date when the applications are invited. Any such relaxation to permit unqualified candidates cannot be to the prejudice of the qualified candidates. They can be taken into service but WP(C)No.3556/2014 Page 9 of 11 cannot steal a march over the qualified and the selected candidates."
(underlined for emphasis)
10. True, the private respondent has already completed 15 years of continuous service also, but he must also show that he did not/could not successfully undergo the necessary training as he was not provided with the facilities for the prescribed training. There is no evidence to show that he could not pass the prescribed training as he was not provided with the facilities for such training. It is also not his case that he was never provided with the facilities for the prescribed training: in fact, he was given that facility in the year 1988, but he failed in that training. Therefore, his case does not even come within the purview of the second limb of clause (5) of the said procedures for promotion to the post of Headmaster. In this view of the matter, it is patently clear that the private respondent could claim to be qualified for the post of Assistant Teacher only after he passed the HSS examination on 19-4-2012 and, therefore, could count his seniority as an Assistant Teacher only from the date he qualified for the post of Assistant Teacher i.e. from 19-4-2012 and not before. Consequently, the private respondent cannot steal a march over the petitioner, who shall have to be treated as senior to him for the purpose of promotion to the post of Headmaster of the School. The findings to the contrary made by the respondent No. 2 in the impugned order dated 4-6-2014 and the enquiry report dated 5-6-2013 of the respondent No. 3 are not in order and, therefore, cannot be sustained in law.
WP(C)No.3556/2014 Page 10 of 11
11. The result of the foregoing discussion is that this writ petition is allowed. Both the impugned order dated 4-6-2014 at Annexure 11 and the enquiry report dated 5-6-2013 at Annexure 12 are hereby quashed. As the petitioner is found to be senior to the private respondent, the respondent No. 2/3 shall allow the petitioner to hold the charge of the post of Headmaster of Badarpur Public M.E. School until the post is filled up on regular basis within a period of one week from the date of receipt of this order. There shall be no order as to cost.
JUDGE Sinha/ WP(C)No.3556/2014 Page 11 of 11