Gauhati High Court
Banita Pathak vs Tulumoni Devi And 7 Ors on 30 March, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/5
GAHC010039072022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/835/2022
BANITA PATHAK
W/O MR MANONAYAN PATHAK
R/O MAZGAON
EAST KHARA AATI
TEZPUR
PIN-784001
DIST. SONITPUR
ASSAM
VERSUS
TULUMONI DEVI AND 7 ORS.
W/O RATUL NEOG
R/O PANIGAON CHARIALI
BISHNU RABHA PATH
PO NAGAON
PIN-782001
2:THE STATE OF ASSAM
REP. BY ITS COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
ELEMENTARY EDUCATION
DISPUR-06.
3:THE SPECIAL COMMISSIONER
ELEMENTARY EDUCATION DEPTT.
DISPUR
GUWAHATI-06.
4:THE DIRECTOR OF ELEMENTARY EDUCATION
KAHILIPARA
GUWAHATI-19.
5:THE ADDL. SECRETARY
TO THE GOVT. OF ASSAM
ELEMENTARY EDUCATION DEPTT.
KAHILIPARA
Page No.# 2/5
GHY.-19
6:THE DEPUTY COMMISSIONER
NAGAON
ASSAM
7:THE INSPECTOR OF SCHOOLS
NAGAON
PIN-782001
8:THE DEPARTMENTAL PROMOTION COMMITTEE
REP. BY THE CHAIRMAN
SCERT
KAHILIPARA
GUWAHATI-19
------------
Advocate for : MR. U S BORA
Advocate for : SC
ELEM. EDU appearing for TULUMONI DEVI AND 7 ORS.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 30.03.2022 Heard Mr. D Das, learned senior counsel assisted by Ms. U S Bora, learned counsel for the applicant and Mr. B P Borah, learned counsel for the opposite party no. 1 and Mr. N J Khataniar, learned Standing Counsel for the Elementary Education Department representing opposite parties no. 2, 3, 4, 5 and 7, Ms. D D Barman, learned Additional Senior Government Advocate for the opposite party no. 6 and Mr. B Choudhury, learned Standing Counsel for the opposite party no. 8.
2. This interlocutory application has been filed for modification of the order dated 21.02.2022 passed in the connected WP(C)/1173/2022.
3. By the said order dated 21.02.2022, this Court being prima facie satisfied with the case made out by the opposite party no. 1, and considering the balance of convenience and irreparable loss that the opposite party no. 1 may suffer, had stayed the promotion of the Page No.# 3/5 applicant, namely Binita Pathak in the notification dated 28.12.2021.
4. The learned senior counsel for the applicant submits that the grievance of the opposite party no. 1 in the connected writ petition as well as in the connected WP(C)/1509/2022 revolves around the claim of the opposite party no. 1 for the post of Principal (In-Charge) of Government Sikshan Mahavidyalaya, Nagaon (CTE). It is also submitted that this Court by the order dated 02.03.2022 in WP(C)/1509/2022 had passed the following order :
"On the prayer of the parties, list on 07/03/2022.
It is clarified that by the interim order dated 21.02.2022 in WP(C) 1173/2022, the order of promotion of the respondent No.8 therein dated 28.12.2021 being stayed would also have a consequential implication that any further order based on the said order of promotion has also been stayed.
In this petition, it is taken note of that a consequential order dated 15.02.2022 pursuant to the order of promotion dated 28.12.2021, which has been stayed earlier, is assailed.
The aforesaid clarification shall be applicable also to the order dated 15/02/2022."
5. The contents of the said consequential order dated 15.02.2022 is quoted below:
"No. AEE 198/2020/42 : Mrs Binita Pathak, senior most Professor, Govt Shikshan Mahavidyalaya (CTE), Nagaon, Assam is temporarily allowed to hold the current charge as i/c Principal, Govt Shikshan Mahavidyalaya (CTE), Nagaon alongwith financial power under the provison of FR 49(C) of FRs & SRs and as per Finance (Esstt-A) Deptt's O.M. No FEG 18/90/46 dated 10/04/2000 without statutory power w.e.f. the date of taking over charge until further order or till regular Principal is posted, whichever is earlier, in addition to her own duties."
6. It is submitted that the opposite party no. 1 had agitated her claim for the post of Principal (In-Charge) of Government Sikshan Mahavidyalaya. However, the appointment of applicant to the said post has been stayed. However, if the applicant is otherwise eligible to be promoted to the post of Professor, the applicant cannot be aggrieved in any way.
7. It is also submitted by the learned senior counsel for the applicant that pending finalization of the service rules, the State in exercise of power under proviso to Article 309 of Page No.# 4/5 the Constitution of India had notified the Assam State Council of Educational Research and Training (CTEs, IASEs) Promotional Service Order, 2020 which was notified on 01.07.2021. As per Clause 7 thereof for being recruited on promotion to the post of Professor, it is provided that the post of Professor shall be filled up from the post of Lecturer having minimum 3 (three) years experience as Lecturer.
8. The learned senior counsel for the applicant has also submitted that there are no other criteria to be fulfilled for being considered for promotion to the post of Professor from the feeder post of Lecturer. It is also submitted that by now the applicant has completed 21 (twenty one) years of continuous service as a Lecturer.
9. Opposing the prayer made in this interlocutory application, the learned counsel for the opposite party no. 1, who is the writ petitioner in both the writ petitions i.e. WP(C)/1509/2022 and WP(C)/1173/2022 has submitted that only because the applicant, who is junior to the opposite party on. 1 has been promoted, as a consequence of such promotion, the applicant has been appointed as the Principal (In-Charge) of the said school. Accordingly, it is submitted that the order of promotion of the applicant would have a cascading effect which would be detrimental to the interest of the opposite party no. 1. It is also submitted that under the amended NCTE guidelines the minimum educational qualifications to hold the post of Professor is that one must have a Ph.D. Hence, it is submitted that the applicant was not eligible to be promoted to the post of Professor.
10. Having considered the rival submissions made by the learned senior counsel for the applicant as well as the learned counsel for the opposite party no. 1, this Court is of the view that although in WP(C)/1173/2022, the promotional order dated 28.12.2021 issued by the Special Commissioner, Elementary Education Department was set aside and quashed but some other persons who would be affected with the quashing of the said promotional order are not found to be impleaded in the WP(C)/1173/2022, except the present applicant. Moreover, in WP(C)/1173/2022, it is not stated that the applicant herein is ineligible for Page No.# 5/5 promotion under the NCTE notification dated 29.03.2019 which is National Council for Teacher Education (Recognition, Norms and Procedure) Amendment Regulations, 2019, by which the previous National Council for Teacher Education (Recognition, Norms and Procedure) Regulations, 2014 was amended. However, the learned counsel for the opposite party no. 1 has submitted that in WP(C)/1509/2022, a specific statement has been made that the applicant does not hold a Ph.D. degree which is essential for holding the post of Professor. In the said proceeding of WP(C)/1509/2022, the opposite party on. 1 assailed the order dated 15.02.2022 by which the applicant was temporarily allowed to hold the current charge of Principal, Government Sikshan Mahavidayalaya (CTE), Nagaon.
11. The Court is of the considered opinion that as the opposite party no. 1 is already protected by the order dated 02.03.2022 passed in WP(C)/1509/2022 by which the notification no. AEE.198/2020/42 dated 15.02.2022 has been stayed, the Court finds no reason to extend the interim order of staying of the order of promotion dated 28.12.2021 which was made by the order dated 21.02.2022 passed in WP(C)/1173/2022. Hence, the interim order passed on 21.02.2022 in WP(C)/1173/2022 is vacated.
12. It is clarified that in the absence of any response of the State in the connected writ petition, the Court has not ventured to give any opinion as to whether the notification dated 29.03.2019 by which the NCTE (Annexure-J) in WP(C)/1509/2022 shall have primacy over the Assam State Council of Educational Research and Training (CTEs, IASEs) Promotional Service Order, 2020 as per the notification dated 01.07.2021. Moreover, no finding has been given by this Court as to entitlement of the applicant or the opposite party no. 1 to be promoted to the post of Professor. Hence, it is also clarified that this order shall not prejudice both sides when the connected writ petitions heard on merit.
13. I.A. stands closed with the above observations.
JUDGE Comparing Assistant