Gauhati High Court
Premeswar Thakuria vs The State Of Assam And 2 Ors on 2 June, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
WP(C) No. 3854/2014
WP(C) No. 4184/2014
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
02.06.2015
Subject matter of WP(C) Nos. 3854/2014 and 4184/2014 being
inter-related, the two writ petitions were heard together on 29.05.2015 and
are being disposed of today by this common order.
2. Heard Mr. H. Sarma, learned counsel for the petitioner in
WP(C) No. 3854/2014 and Mr. K. K. Mahanta, learned Sr. Counsel for
the petitioner in WP(C) No. 4184/2014. Also heard Mr. S. Saikia, learned
Standing Counsel, Education (Secondary) Department.
3. Sri Premeswar Thakuria, petitioner in WP(C) No. 3854 of
2014 had joined the Dhing Public High School (School) in the district of
Nagaon as Assistant Teacher on 22.10.1998. He has the qualification of
MA, BEd. eligible to hold the post of Head Master as well as Assistant
Head Master in the High Schools of the State. Pursuant to an
advertisement dated 02.11.2010, a select list was published of all teachers
eligible to be appointed as Head Master and Assistant Head Master of
High School. In respect of the school, Sri Paramesh Prasad Bharali and Sri
Arun Debnath were placed at first and second position for the post of Head
WP(C) No. 3854/2014
WP(C) No. 4184/2014 Page 1 of 10
Master. Petitioner was placed in the third position. However, for the post of
Assistant Head Master, Sri Arun Debnath was placed in the first position
followed by the petitioner in the second position.
4. Sri Paramesh Prasad Bharali was the in-charge Head Master
of the school. On his superannuation, Sri Arun Debnath was made the in-
charge Head Master. Thereafter, he was appointed as the regular Head
Master of the school. By order dated 03.02.2012 issued by the Director of
Secondary Education, Assam, Sri Premeswar Thakuria was promoted to
the post of Assistant Head Master of the school.
5. Sri Arun Debnath retired from service on attaining the age of
superannuation on 31.03.2013. Thereafter, Director of Secondary
Education, Assam issued an order dated 04.04.2013 allowing Sri
Premeswar Thakuria to hold charge of the office of Head Master of the
school in addition to his own duties of Assistant Head Master. Sri Thakuria
was given financial power to draw and disburse salary of the staff of the
school under FR 49C.
6. According to the petitioner, the post of Head Master is lying
vacant which he is holding on in-charge basis. He was selected for the post
of Head Master. The two persons above him in the select list have retired.
WP(C) No. 3854/2014
WP(C) No. 4184/2014 Page 2 of 10
Therefore, he should now be given regular appointment to the post of
Head Master. Referring to an order of this Court dated 05.03.2014 passed
in WP(C) No. 6781/2013 (Mahiruddin Ahmed Vs. State of Assam & Ors.)
in which this Court directed the authorities in the Education Department to
promote the in-charge Head Master as regular Head Master, the present
petition has been filed seeking a direction to the respondents to promote
Sri Premeswar Thakuria as regular Head Master of the school.
7. This Court by order dated 13.08.2014 had issued notice and directed that status quo as regards office of Head Master of the school as on 13.08.2014 should be maintained.
8. Respondent No. 2 i.e. Director of Secondary Education, Assam has filed affidavit in response to the writ petition in WP(C) No. 3854/2014. It is stated that after the retirement of Sri Arun Debnath on 31.03.2013, petitioner, an MA, BEd., Assistant Head Master of the school was allowed to hold charge of Head Master of the school on purely temporary basis. Thereafter Md. Nurul Islam, MA, Assistant Teacher of the school produced BEd. certificate. Md. Nurul Islam was admittedly senior in service to Sri Premeswar Thakuria. Nurul Islam had received graduate scale of pay on 30.12.1993 whereas Sri Premeswar Thakuria had received graduate scale of pay w.e.f. 22.10.1998. Since Md. Nurul Islam is WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 3 of 10 senior to Sri Premeswar Thakuria and in the meanwhile he had attained eligibility to hold the post of Head Master, Director of Secondary Education passed an order dated 31.07.2014 allowing Md. Nurul Islam to hold the charge of the office of Head Master of the school with financial powers. It is further stated that thereafter representation was received against the order dated 31.07.2014 allowing Md. Nurul Islam to hold charge of Head Master of the school, Director of Secondary Education passed an order dated 05.08.2014 observing that the objection raised would require re-examination. Accordingly, re-examination was ordered and in the meanwhile the order dated 31.07.2014 has been recalled. It is further stated that the post of regular Head Master is a direct recruitment post. Both Sri Premeswar Thakuria and Md. Nurul Islam are eligible with requisite qualification for appointment to the post of Head Master in the school. Select list dated 07.07.2011 prepared pursuant to the advertisement dated 02.11.2010 has expired. Both Sri Premeswar Thakuria and Md. Nurul Islam may be given a chance to appear in the selection process as and when selection is held.
9. In his reply affidavit, Sri Premeswar Thakuria has stated that as per the proceedings of the State Selection Board which finalized the selection for the post of Head Master/Assistant Head Master, the selection WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 4 of 10 of candidates was made against existing vacant posts and also for anticipated vacancies upto the year 2013. Since the post of Head Master of the school had fallen vacant in the year 2013, the said select list would subsist for the said vacancy and Sri Thakuria's candidature is required to be considered on the basis of his selection by the State Selection Board.
10. In the meanwhile. Md. Nurul Islam filed WP(C) No. 4184/2014 challenging the legality and validity of the order dated 05.08.2014 of the Director of Secondary Education whereby the previous order dated 31.07.2014 allowing him to hold charge of the office of Head Master of the school was recalled.
11. Mr. Sarma, learned counsel for the petitioner in WP(C) No. 3854/2014 submits that in view of selection of his client for the post of Head Master, the respondents are required to consider his case for regular promotion to the post of Head Master. He further submits that Md. Nurul Islam is not a selected candidate. Further submission is that when Sri Premeswar Thakuria was allowed to hold charge of the office of Head Master in the year 2013 Md. Nurul Islam did not have the eligibility in as much as he did not have the BEd. degree. Subsequently in the year 2014 he obtained the BEd. degree. Therefore, he cannot claim that he should be allowed to hold the charge of Head Master of the school on the strength of WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 5 of 10 a degree subsequently obtained. Referring to the order of this Court in Mahiruddin Ahmed (supra), he submits that this Court had held the select list to be subsisting and directed the State to make promotion from the said select list. Therefore, petitioner's case is required to be considered for promotion based on his selection. He has also placed reliance on a decision of the Apex Court in the case of Rakesh Kumar Sharma vs. State & Ors reported in (2013) 11 SCC 58 to contend that eligibility has to be reckoned on the date of selection. At the time of selection, Md. Nurul Islam was not eligible. Subsequently, at the time of Sri Premeswar Thakuria being named the in-charge Head Master of the school, Md. Nurul Islam was still not eligible. Therefore, the claim of Md. Nurul Islam is untenable and cannot be accepted.
12. On the other hand, Mr. Mahanta, learned Sr. Counsel appearing for Md. Nurul Islam, petitioner in WP(C) No. 4184/2014 submits that Sri Thakuria's repeated reference to the select list dated 07.07.2011 and his claim for promotion to the post of Head Master on the strength of his selection is untenable in as much as the said select list has already been acted upon in respect of the school. The first candidate in the selection, Sri Paramesh Prasad Bharali was appointed as Head Master on regular basis. Sri Premeswar Thakuria was also appointed as Assistant WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 6 of 10 Head Master on the basis of the said select list. Therefore, the moment the appointments were made the select list stood exhausted. No further claim can be raised on the basis of such selection. He also submits that there is no dispute that considering the length of service Md. Nurul Islam is far senior to Sri Premeswar Thakuria. Though initially he did not have the eligibility, namely, the BEd. degree, subsequently in the year 2014, more precisely on 11.03.2014 he had obtained the BEd. degree. Therefore, as per provision of the Assam Secondary Education (Provincialised) Service Rules, 2003, he is now eligible to hold the post of Head Master. Therefore, he should now be appointed as in-charge Head Master till the post is filled up on regular basis.
13. Mr. Saikia, learned Sr. Standing Counsel, Education (Secondary) Department supports the submission of Mr. Mahanta regarding exhaustion of the select list but reiterates the contentions advanced by the Director of Secondary Education in his affidavit. He submits that the post of Head Master of the school is now vacant and needs to be filled up. The two petitioners are eligible for consideration. Post of Head Master is a selection post and is required to be filled up by direct recruitment in terms of Rule 14 of the Assam Secondary Education (Provincialised) Service Rules, 2003.
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14. In reply Mr. Sarma, learned counsel submits that after the superannuation of Sri Paramesh Prasad Bharali, Sri Arun Debnath was appointed as Head Master of the school on regular basis on the strength of his selection in the select list dated 07.07.2011. Therefore, the contention of Mr. Mahanta as well as of Mr. Saikia learned counsel that the select list stood exhausted cannot be accepted as the authorities have relied upon the said select list subsequently.
15. Submissions made have been considered. I have also perused the pleadings and the documents placed on record.
16. It is a settled proposition of law that the moment the posts advertised are filled up, the select list would get exhausted. Appointments cannot made beyond the advertised posts [Please see Virender Singh Hooda & Ors. Vs State of Haryana reported in (2004) 12 SCC 588]. Admittedly in this case the first selected candidate was appointed as Head Master. Sri Premeswar Thakuria was also appointed as Assistant Head Master. To that extent the select list dated 07.07.2011 in respect of the school stood exhausted. The action of the authorities in appointing the next candidate Sri Arun Debnath as the regular Head Master of the school on the basis of his selection in the same select list dated 07.07.2011 following WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 8 of 10 super-annuation of the first candidate may not be proper. However, because an alleged impropriety was committed once, it could not act as a precedent for repeating such an act again in future. In any case, Sri Arun Debnath has retired from service on attaining superannuation. Therefore, Sri Premeswar Thakuria, petitioner in WP(C) No. 3854/2014, cannot claim regular promotion or appointment to the post of Head Master of the school based on his selection in the select list dated 07.07.2011, more so when he was already appointed as Assistant Head Master on the strength of such selection.
17. That leads to the question relating to holding of charge of the office of Head Master. It is the pleaded case of the Director that the present arrangement is purely temporary. Post of Head Master is lying vacant. The said post is a selection post required to be filled up by the authority. Both the two petitioners have the eligibility for selection to the said post. Therefore, holding of the office of Head Master on in-charge basis is only a temporary measure till the post is filled up on regular basis. There is no dispute that Sri Premeswar Thakuria was allowed to hold charge of Head Master on 04.04.2013 on the retirement of Sri Arun Debnath as Head Master being the Assistant Head Master and also being the lone candidate at that point of time to have the eligibility. On WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 9 of 10 04.04.2013 Md. Nurul Islam did not have the eligibility to hold the office of Head Master of the school as he did not have the B.Ed degree which he obtained subsequently. Since this is a purely temporary arrangement only during the interregnum till the post of Head Master is filled up on regular basis, Court is of the view that frequent change of Head Master of a school even on in-charge basis is not desirable. This will not only create avoidable friction between faculty members but may also have an adverse impact on the academic environment of the institution. Since the State respondents have already declared in their affidavit that the post of Head Master in the school is vacant and both the petitioners are eligible, effective steps should now be taken to fill up the post of Head Master of the school on regular basis. Accordingly, respondent Nos. 1 & 2 are directed to take steps to fill up the post of Head Master of the school i.e. Dhing Public High School in the district of Nagaon on regular basis in accordance with law within a period of 4 (four) months from today.
18. Till the process is complete, interim order passed by this Court in WP(C) No. 3854/2014 dated 13.08.2014 shall continue.
19. Both the writ petitions are accordingly disposed of.
Judge aparna WP(C) No. 3854/2014 WP(C) No. 4184/2014 Page 10 of 10