Gauhati High Court
Ashutosh Das vs The State Of Assam And 6 Ors on 24 June, 2022
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/15
GAHC010094592022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3283/2022
ASHUTOSH DAS
S/O- LT. GOPENDRA DAS, R/O- VILLAGE- KALINAGAR, P.O. KALINAGAR
PART-II, P.S. PANCHGRAM, DISTRICT- HAILAKANDI, (ASSAM), PIN- 788801.
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT,
DISPUR, GUWAHATI-6.
2:THE SPECIAL COMMISSIONER
SECONDARY EDUCATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE STATE LEVEL RECRUITMENT COMMISSION FOR CLASS III POSTS
REPRESENTED BY SECRETARY
ASSAM ADMINISTRATIVE STAFF COLLEGE
JAWAHARNAGAR
KHANAPARA
GUWAHATI-22.
4:THE DIRECTOR
SECONDARY EDUCATION
KAHILIPARA
ASSAM
GUWAHATI-19.
5:THE DISTRICT LEVEL PROMOTION COMMITTEE
REPRESENTED BY ITS CHAIRMAN CUM ADDITIONAL DEPUTY
COMMISSIONER (EDN) HAILAKANDI
Page No.# 2/15
DISTRICT- HAILAKANDI
ASSAM.
6:THE INSPECTOR OF SCHOOLS
H.D.C.
HAILAKANDI
DISTRICT- HAILAKANDI
ASSAM.
7:THE PRINCIPAL
JANAKI CHARAN HIGHER SECONDARY SCHOOL
HAILAKANDI
P.O- KALINAGAR
DISTRICT- HAILAKANDI
ASSAM
Advocate for the Petitioner : MR J I BARBHUIYA
Advocate for the Respondent : SC, EDU
Linked Case : WP(C)/5451/2018
SHRI ASHUTOSH DAS
LT. GOPENDRA DAS
R/O- VILL- KALINAGAR
P.O. KALINAGAR
PIN- 788801
DIST- HAILAKANDI
ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS.
TO BE REP. BY COMM. AND SECY. EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY-6
2:THE DIRECTOR OF SECONDARY EDUCATION
KAHILIPARA
ASSAM
GHY-19
3:THE INSPECTOR OF SCHOOLS
Page No.# 3/15
HDC
HAILAKANDI
DIST- HAILAKANDI
PIN- 788151
4:THE PRINCIPAL
JANAKI CHARAN HIGHER SECONDARY SCHOOL
HAILAKANDI
PO KALINAGAR
DIST- HAILAKANDI
ASSAM
PIN- 788801
------------
Advocate for : MR. M H RAJBARBHUIYAN
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 3 ORS.
Linked Case : WP(C)/36/2022
SHYAM SUNDAR BORAH AND 4 ORS
S/O GOKUL CHANDRA BORAH
R/O VILL- OJARA GAON
P.O.-OPAR OJARA
PIN-782101
P.S.-SADAR
DIST- NAGAON
ASSAM
2: MAHENDRA KEOT
S/O SRI SARABAPU KEOT
R/O BRAHAMPUR
P.O.-BRAHAMPUR
P.S.-SADAR
DIST-NAGAON
ASSAM
PIN-782102
3: KHAGEN BORA
S/O SRI CHANDRA KANTA BORA
R/O KARAYAN
P.O.-KARAYANI
P.S.-SADAR
DIST-NAGAON
ASSAM
PIN-
4: MUKUL CHAMUAH
Page No.# 4/15
S/O SRI
R/O VILL- UJARA GAON
P.O.-OPAR UJARA
P.S.-SADAR
DIST-NAGAON
ASSAM
PIN-
5: DIPANKAR BORUAH
S/O KINARAM BARUAH
R/O VILL-KUJIDAH GAON
P.O.-KUJIDAH
P.S.-SADAR
DIST-NAGAON
ASSAM
PIN-
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
SECONDARY EDUCATION DEPARTMENT
DISPUR
GUWAHATI-6
2:THE SPECIAL COMMISSIONER TO THE GOVT OF ASSAM
SECONDARY EDUCATION DEPARTMENT
DISPUR
ASSAM
PIN-781005
3:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19
4:THE DEPUTY DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI-19
5:THE INSPECTOR OF SCHOOLS
NAGAON DISTRICT CIRCLE
NAGAON
DIST-NAGAON
ASSAM
------------
Advocate for : MR. P J SAIKIA
Advocate for : SC
SEC. EDU. appearing for THE STATE OF ASSAM AND 4 ORS
Page No.# 5/15
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
24-06-2022 Heard Mr. J. I. Barbhuiya, learned counsel for the petitioners in WP(C) Nos. 5451/2018 and 3283/2022. Also heard Mr. P. J. Saikia, learned Senior counsel, assisted by Ms. M. Nirola for the petitioners in WP(C) No. 36/2022 and Mr. R. Mazumdar learned Standing counsel, Secondary Education Department for the respondents in all the three writ petitions.
2) As the learned counsels for the petitioners as well as the respondents in these three writ petitions have consented for taking up the writ petitions together, the Court decided to adjudicate these writ petitions jointly.
3) The petitioners of WP(C) Nos. 5451/2018 and 3283/2022 namely, Ashutosh Das is the same and one person. It is stated by him that that the Director of Secondary Education, Assam vide Memo No. PC/Sec/14/97/319 dated 09.02.2011 appointed him as a Grade-IV employee in Janaki Charan Higher Secondary School, Kalinagar, District-Hailakandi (hereinafter referred to as the said HS School). It is also stated by him that he possesses the required eligibility for his appointment to the post of Lower Division Assistant (LDA) in any provincialised Secondary Schools of the State and that he being the senior most Grade-IV employee of the said HS School, having the requisite qualification is eligible for promotion to the vacant post of LDA in the said HS School.
4) Petitioner of said WP(C) No. 5451/2018 and WP(C) No. 3283/2022 also stated that after his said appointment as Grade-IV employee on 09.02.2011 in said HS School, subsequently its Principal by an order dated 11.06.2011 allowed him to serve against the vacant sanctioned post of LDA in said HS School that was lying vacant on expiry of one Saraf Uddin Choudhury, regular LDA of the said HS School.
5) In his both the writ petitions, WP(C) Nos. 5451/2018 and 3283/2022 the petitioner Ashutosh Das has prayed for his promotion to the post of LDA, in said Janaki Charan Higher Secondary School, Kalinagar, District-Hailakandi.
6) The petitioner of said writ petitions, WP(C) Nos. 5451/2018 and 3283/2022 contended that Page No.# 6/15 the State Government in the Secondary Education Department vide No. ASE. 631/2019/ 112 dated 28.09.2021 issued an Office Memorandum stating that 5% of the total posts of Grade-III (Junior Assistant) under a district shall be filed up by promotion from the qualified candidates amongst the Grade-IV staff of the schools under the concerned district with minimum 5 years of experience in provincialised High School/ High Madrassa/Higher Secondary School/Higher Secondary and Multipurpose school, where the incumbent should be a Graduate in Arts/Commerce/Science and that there shall be a District wise seniority and gradation list in that regard and that the selection shall be done by a District Level Promotion Committee.
7) Said petitioner stated that in the said Office Memorandum dated 28.09.2021 it is also provided that the District Level Promotion Committee shall be headed by the Deputy Commissioner of the district concerned as its Chairman; the Inspector of Schools of the district concerned shall be its Member Secretary and the District Elementary Education Officer of the district concerned, a Principal of a provincialised Higher Secondary School of the district concerned and the Headmaster of a Provincialised High School of the district concerned shall be the Members of the said Committee.
8) As the District Level Promotion Committee of Hailakandi District has recommended his name for promotion to the post of Grade-III in said Janaki Charan Higher Secondary School, Kalinagar of Hailakandi District, therefore, the petitioner of WP(C) Nos. 5451/2018 and 3283/2022 Ashutosh Das has prayed before the Court for a direction to the Director of Secondary Education, Assam to give its approval with regard to the said recommendation of the District Level Promotion Committee of Hailakandi District that was forwarded by the Inspector of Schools, Hailakandi District Circle, Hailakandi vide No. IS/HKD/2022/5332 dated 08.04.2022.
9) On the other hand in WP(C) No. 36/2022, its petitioners have prayed before the Court praying amongst others to set aside and quash the said Office Memorandum under No. ASE. 631/2019/112 dated 28.09.2021 issued by the Special Commissioner, Secondary Education Department and have also prayed for a direction to the respondent authorities in the Secondary Education Department of the State to take appropriate steps for amendment of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 for making suitable provisions in the same towards promotional avenues of the Grade-IV employees appointed under the Assam Secondary Education (Provincialised) Service Rules 2003 in compliance of the judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016, prior to the making of any such promotion to the post of Class-III (Junior Assistant) in different provincialised High schools/High Madrassas/Higher Secondary Schools/Higher Secondary and Multipurpose schools of the State.
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10) The Court by order dated 17.01.2022 passed in WP(C) No. 36/2022 in the interim observed that Till the next returnable date, the process for promotion to junior Assistant without including the entire Grade-IV employees shall not be further carried forward if such process excludes a section of the Grade-IV employees who may not have the requisite qualification for direct recruitment. Said order dated 17.01.2022 is still in force.
11) To regulate the recruitment and the conditions of service of the persons appointed to the Assam Secondary Education (Provincialised) Service, the State Government in the Secondary Education Department in exercise of the power conferred by the proviso to Article 309 of the Constitution of India brought in to force the Assam Secondary Education (Provincialised) Service Rules, 2003 w.e.f. 12.08.2003 amended in the year 20212.
12) Rule 4 of the said 2003 Rules stipulated the Method of Recruitment to the Cadre of Lower Division Assistant in the office of the High, Higher Secondary, Higher Secondary and Multipurpose School which were to be made directly by the Appointing Authority, i.e., the Inspector of Schools of the concerned district from the select list prepared by the School Selection Committee of the concerned school constituted under the provisions of Rule 8(4) of the said 2003 Rules, on the basis of test and interview.
13) During the force of said 2003 Service Rules some of the Class-IV employees including Grade- IV employees serving in different provincialised secondary schools of the State preferred writ petitions praying amongst others to declare the said Rule 4 of the Assam Secondary Education (Provincialised) Service Rules, 2003 as unconstitutional and void since it does not contain any promotional avenues for the Class-IV employees including regular Grade-IV employees serving in provincialised Secondary Schools to the next higher post of Class-III Junior Assistant/Lower Division Assistant in the office of the provincialised High, Higher Secondary, Higher Secondary and Multi Purpose Schools of the State, though, such promotional avenues are available to the Grade-IV employees appointed in the establishment of the Deputy Inspector of Schools; the District Elementary Education Officer; the Inspector of Schools and the Directorate of various Departments of Education of the State, etc. i.e., under the provisions of the Assam Directorate Establishment (Ministerial) Service Rules, 1973.
14) After considering those writ petitions, Hon'ble Division Bench of this Court by a common judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016 and other connected cases observed that such promotional avenues of Class-IV employees including Grade-IV employees serving in provincialised Secondary/Higher Secondary Schools of the State to the next higher post of Class-III Page No.# 8/15 (Junior Assistant) have not been incorporated in said Assam Secondary Education (Provincialised) Service Rules, 2003 and accordingly, in the interest of justice, to mould the relief directed the respondents authorities in the Secondary Education Department of the State to consider framing suitable provision for promotion of Class-IV employees to the post of Junior Assistant by prescribing such eligibility criteria, as it may deem appropriate, in addition to filling up the posts of Junior Assistant by way of direct recruitment, within a period of 6 (six) months.
15) In the said common judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016 and other connected cases it is observed that the said 1973 Rules is a statutory Rule under Article 309 of the Constitution of India and that the Assam Secondary Education (Provincialised) Service Rules, 2003 is also a statutory recruitment rule under Article 309 of the Constitution of India, where selection and appointment in Class-III and Class-IV posts are done school-wise under the said 2003 Rules as amended in 2012.
16) It is stated that as the said judgment and order dated 11.09.2019 passed by the Hon'ble Division Bench in WP(C) No. 997/2016 and other connected cases was not complied with, contempt petition was filed by some of the petitioners involved in the said judgment and order dated 11.09.2019 and thereafter, the authorities in the Secondary Education Department issued the said Office Memorandum No. ASE.631/2019/112 dated 28.09.2021, noted above.
17) It is to be noted herein that to regulate the recruitment and the conditions of services of teaching and non-teaching employees appointed under the Assam Secondary Education (Provincialised Schools) Service, the State Government in the Secondary Education Department in exercise of the power conferred by the proviso to Article 309 of the Constitution of India brought in to force the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 w.e.f. 10.10.2019, i.e., from the date of publication of said 2018 Rules in the Assam Gazette Extraordinary and the said Assam Secondary Education (Provincialised) Service Rules, 2003 was repealed w.e.f. 10.10.2019.
18) The Service in provincialised Secondary schools of the State consists of the teaching and non-teaching staff. Rule 3 of said 2018 Rules relates to Classes and Cadres, where sub-Rule (1) of Rule 3 relates to the teaching staff and sub-Rule (2) of Rule 3 relates to non-teaching staff. Sub-Rules (2) and (3) of Rule 3 of said 2018 Rules stipulate as follows:-
"3. Classes and Cadres. ‒ (2) The non-teaching staff in provincialised School cell consist of the following classes and cadres on the date of commencement of these rules, namely:-
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(a) Class-III:- It includes the cadres of ‒
(i) Senior Assistant;
(ii) Junior Assistant;
(iii) Library Assistant;
(b) Class-IV:- It includes the cadres of ‒
(i) Laboratory Bearer;
(ii) Peon/Chowkidar.
(3) The service may also include:-
(i) Any post equivalent to a post in any of the cadre mentioned in sub-Rule (1) and (2) Any cadre or post declared by the Government to be cadre of the service.
(ii) Each cadre in sub-Rule (2) of Rule 3 shall form an independent cadre and members of any cadre shall have no claim for appointment at any cadre except in accordance with provision of these Rules.
(iii) The service may also include post equivalent to post of any cadre mentioned in sub-Rule (2) of Rule 3 and any post that may be declared by the Government from time to time as cadre post of the service."
19) Rule 4 of said 2018 Rules relates to "Recruitment to the cadre of Grade-IV posts under Rule 3(2)(b) in the post of the office of the Higher Secondary/Senior Secondary School/High School or Higher Madrassa which are to be filled by direct recruitment process following the advertisement and selection as prescribed the said recruitment Rules.
20) Rule 5 of said 2018 Rules relates to "Recruitment to the post of Assistant and selection thereof" which stipulates as follows:
"5. Recruitment to the post of Assistant and selection procedure thereof.--
(1) Recruitment to the cadre of Junior Assistant and Library Assistant as mentioned under Rule 3(2)(a)(ii) and (iii) for the office of the Senior Secondary School/Higher Secondary School/High School or High Madrassa shall be made by direct recruitment on the basis of the selection of the District Selection Committee constituted under Rule 16(2) in the manner prescribed under sub-Rule (3) and guidelines issued from time to time by the Education Department by notification in the manner prescribed under sub-Rule (3).
(2) Five percent of the total posts of Junior Assistant of a District shall be filled up by direct recruitment from the candidates amongst the Grade-IV staff of the Schools under the concerned district having requisite qualification with five years experience of continuous service as Grade-IV and remaining posts shall be filled up by direct recruitment from the open competition in the manner prescribed under sub-Rule (3).
Page No.# 10/15 (3) (i) Before the end of each year the Inspector of School who is the Member-
Secretary of the District Selection Committee, shall ascertain the vacancy position of the posts with sanction number, allotment and retention order of the posts and invite applications through an advertisement to be published in two local newspapers.
(ii) The Member-Secretary shall prepare a list of eligible candidates and submit to the District Selection Committee after scrutiny of the applications. The District Selection Committee shall verify the documents in respect of academic qualification and marks sheet of the respective examination and calculate the marks secured by a candidate in respect of the respective examination and the written test in the manner as specified in Schedule II and on the basis of total marks secured in respective examination and written test under Schedule II, prepare a select list in respect of as many candidates equal to the number of vacancies.
(iii) The select list so prepared by the District Selection Committee shall be submitted to the Director who shall after necessary verification as may be required, approve the select list and publish the same in the office Notice Board or in such other places as the Director may consider fit and proper.
(iv) After approval and publication of the select list under sub-clause (iii) the Appointing Authority shall appoint the candidates in order of preference from the select list by observing all formalities.
(v) No appointment in any manner shall be made by any authority except in accordance with the procedure prescribed above.
(vi) The validity of the select list shall not exceed beyond one year from the date of its publication by the Director."
21) Mr. R. Mazumdar learned Standing counsel, Secondary Education representing the respondent authorities submitted that the sub-Rule (2) of Rule 5 of said 2018 Rules have provided reservation of 5% of total posts of Junior Assistant in the cadre of Class-III (2) (a) (ii) of Rule 3 of said 2018 Rules of a district to be filled up by the candidates amongst the Grade-IV staff of the Schools having requisite qualification with five years experience of continuous service as Grade-IV, but said 5% of total posts is required to be filled up by direct recruitment. Mr. R. Mazumdar also submitted that for the said reason and to comply with the direction of the Court dated 11/9/2019 passed in WP(C) No. 997/2016 the State Government in the Secondary Education Department have issued the Office Memorandum No. No.ASE. 631/2019/112 dated 28.09.2021 providing 5% benefit of Page No.# 11/15 promotion of Grade-IV employees to Grade-III (Junior Assistant) of the total posts of Junior Assistant of a District in said 2018 Rules, subject to the amendment of Rule 5 (2) of the said 2018 Rules. Mr. Mazumdar learned Standing counsel, placed the said Office Memorandum dated 28.09.2021 before the Court, which is as follows:-
GOVERNMENT OF ASSAM SECONDARY EDUCATION DEPARTMENT, DISPUR GUWAHATI-6 No.ASE.631/2019/112 Dated Dispur the 28th September 2021.
OFFICE MEMORANDUM Subject: Providing 5% benefit of promotion of Grade-IV employees to Grade-III (Junior Assistant) of the total posts of Junior Assistant of a District under provision of Assam Secondary Education (Provincialised Schools) Service Rule 2018. Subject to amendment of Rule 5 (2) of the Assam Secondary Education (Provincialised Schools) Service Rule 2018, the Government after due consideration of the legal opinion given by the Senior Standing Counsel, Education Department, Judicial Department and in compliance to the Hon'ble Gauhati High Court's Common order dated 11/9/2019 passed in WP(C) No. 997/2016 linked with WP(C) No. 6520/2016, WP(C) No. 7973/2015, WP(C) No. 7969/2015, WP(C) No. 116/2016, WP(C) No. 53/2016, WP(C) No. 6175/2016, WP(C) No. 7981/2015, WP(C) No. 861/2016, has decided that 05% (five) of the total posts of Grade-III (Junior Assistant) under a district shall be filled up by promotion from the qualified candidates among the Grade-IV staff of the schools under the concerned district with minimum 5 years of experience in provincialised High Schools/High Madrassas/Higher Secondary Schools/Higher Secondary and Multipurpose Schools and the incumbent should be Graduate (Arts/Commerce/Science) and there shall be a District wise seniority and gradation list and selection shall be done by a District Level Promotion Committee.
The District Level Promotion Committee shall be headed by the Deputy Commissioner of the District as Chairman; Inspector of Schools as Member Secretary; DEEO of the district as Member; a Principal of a provincialised HS School as Member and Headmaster of a Provincial High School as Member. The Members shall be nominated by the Deputy Commissioner of the district.
The OM shall come into force with immediate effect.
Sd/- (Sri Preetom Saikia, IAS) Special Commissioner Page No.# 12/15 Secondary Education Department
22) As it was found that there was no promotional avenues of Class-IV employees including Grade-IV employees serving in provincialised Secondary/ Higher Secondary Schools of the State to the next higher post of Class-III (Junior Assistant) in said Assam Secondary Education (Provincialised) Service Rules, 2003; therefore, the Hon'ble Division Bench by the said common judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016 and other connected cases, being aware of the fact that the Assam Secondary Education (Provincialised) Service Rules, 2003 was a statutory recruitment Rules framed under the power conferred by the proviso to Article 309 of the Constitution of India, therefore, in the interest of justice and molding the relief directed the respondents authorities in the Secondary Education Department of the State to consider framing suitable provision for promotion of Class-IV employees to the post of Junior Assistant by prescribing such eligibility criteria, as it may deem appropriate, in addition to filling up the posts of Junior Assistant by way of direct recruitment, within the time specified therein.
23) The Assam Secondary Education (Provincialised Schools) Service Rules, 2018 was issued vide No. ASE.31/2013/128 dated 18.09.2019 and came in to force w.e.f. 10.10.2019, seven days after the said common judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016. As such it can be seen that the process of bringing in the said 2018 Rules started much prior to the said judgment and order dated 11.09.2019But even in said 2018 statutory Recruitment Rules there is no promotional avenues for employees serving in Class-IV in the office of the Senior Secondary Schools/ Higher Secondary Schools/Higher Secondary and Multipurpose Schools/ High Schools or High Madrassas to the Class-III (Junior Assistant) post.
24) Though, by means of said Office Memorandum dated 28.09.2021, the respondent authorities in the Secondary Education Department of the State till such time of amendment of Rule 5(2) of said Page No.# 13/15 2018 Rules provided 5% benefit of promotion of Grade-IV employees to the total posts of Class-III Junior Assistant from amongst the qualified candidates among the Grade-IV staff of the schools under the concerned district with minimum 5 years of experience in Senior Secondary Schools/Higher Secondary Schools/Higher Secondary and Multipurpose Schools/High Schools or High Madrassas where such incumbent should be Graduate (in Arts/Commerce/ Science) and that there shall be a District wise seniority and gradation list and that the selection shall be done by a District Level Promotion Committee. But the respondents in the Secondary Education Department while issuing the said Office Memorandum dated 28.09.2021 did not consider the fact that the sub-Rule (3) (ii) of Rule 3 of said 2018 statutory recruitment Rules specifically provides that -- Each cadre in sub-Rule (2) of Rule 3 [that include (a) Class-III in the cadres of ‒ (i) Senior Assistant; (ii) Junior Assistant; (iii) Library Assistant and (b) Class-IV in the cadres of ‒ (i) Laboratory Bearer and (ii) Peon/Chowkidar] shall form an independent cadre and that members of any such cadre shall have no claim for appointment at any cadre except in accordance with provision of said 2018 Rules.
25) It is well settled that the State Government or the authorities concerned just by issuing an Office Memorandum or by issuing a Notification cannot override the provisions of statutory recruitment /service rules framed under Article 309 of the Constitution of India.
26) It is already noted above that the Hon'ble Division Bench while adjudicating the issues involved in WP(C) No. 997/2016 and other connected cases in its common judgment and order dated 11.09.2019, was aware of the fact that the said 2003 Rules was a statutory Rule under Article 309 of the Constitution of India.
27) Since the Court by the judgment and order dated 11.09.2019 passed in WP(C) No. 997/2016 and other connected cases, in the interest of justice and molding the relief, directed the State Page No.# 14/15 Government in the Secondary Education Department to consider framing suitable provision for promotion of Class-IV employees to the post of Junior Assistant by prescribing such eligibility criteria, as it may deem appropriate, in addition to filling up the posts of Junior Assistant by way of direct recruitment, as noted above, therefore, it is the duty of the respondents authorities in the Secondary Education Department of the State to make suitable provision in the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 by making necessary amendment of said 2018 Rules, considering the fact that said 2018 Rules is also a statutory recruitment and service Rules under Article 309 of the Constitution of India.
28) It is also to be noted herein that though the respondent authorities in the Secondary Education Department tried to comply with the direction of the Court dated 11.09.2019 passed in WP(C) No. 997/2016 by issuing the Office Memorandum No. ASE. 631/2019/112 dated 28.09.2021, but it is found that the same is not in conformity with the direction passed in said common Judgment and Order dated 11.09.2019.
29) After hearing the learned counsels for the parties and considering the entire aspect of the matter, the respondent authorities in the Secondary Education Department of the State are directed to do the needful with the provisions of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 so as to comply with the direction of the Hon'ble Division Bench in the common Judgment and Order dated 11.09.2019 passed in WP(C) No. 997/2016 and other connected cases.
30) Till making such provisions in the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 in respect of promotional avenues of Class-IV employees of provincialised Secondary Schools of the State to the Class-III post of Junior Assistant in such schools, as directed by the Hon'ble Division Bench on 11.09.2019 in the common judgment and order passed in WP(C) No. Page No.# 15/15 997/2016 and other connected cases, noted above, the impugned Office Memorandum No. ASE.
631/2019/112 dated 28.09.2021 of the State Government in the Secondary Education Department shall remain suspended and/or shall not be given effect.
31) With the above observation and direction these writ petitions stand disposed of.
JUDGE Comparing Assistant