Gauhati High Court
Shri Dina Kanta Boruah vs The State Of Assam And 3 Ors on 12 June, 2020
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/8
GAHC010027682015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7616/2015
1:SHRI DINA KANTA BORUAH
S/O LT. NIRAN BORUAH, R/O RUPALI GARPARA, P.O. KALAMGURI, DIST-
DHEMAJI, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 3 ORS
REP. BY THE SECY. ELEMENTARY EDUCATION DEPTT., DISPUR, GHY-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION
ASSAM
KAHILIPARA
GHY-19
3:THE DISTRICT ELEMENTARY EDUCATION OFFICER
DHEMAJI
ASSAM
4:THE BLOCK LEVEL ELEMENTARY EDUCATION OFFICER
DHEMAJI
ASSA
Advocate for the Petitioner : MR. N BORAH
Advocate for the Respondent : SC, ELEMENTARY EDUCATION
Page No.# 2/8
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
12-06-2020 Heard Mr. Niran Borah, learned counsel for the petitioner and Mr. B. Kaushik, learned Standing counsel Education Department for the respondent Nos. 1 to 4.
2) By order dated 13.02.2020 name of the petitioner Nos. 2 to 5 have been struck off from the cause title of the case.
3) The petitioner contended that he is the senior most teacher of Naharbari Novodaya ME School under Borodoloni Education Block of Dhemaji district and is serving as its in-charge Headmaster. It is stated that from the date of his joining in July 1985 as an Assistant Teacher, he had already completed more than 10 years of continuous service in that school.
4) Inspite of his completion of service of more than 10 (ten) years as an Assistant Teacher in ME School of Dhemaji District, as the District Elementary Education Officer (DEEO), Dhemaji did not include his name in the Gradation List of ME School Teachers of Dhemaji District, published on 13.10.2015, for consideration to the post of Headmaster of ME School in that district, the petitioner, being aggrieved with such action of the DEEO, Dhemaji, has preferred this writ petition.
5) It is stated that the post of Headmaster in any provincialised ME School is promotional post and appointment to the post of Headmaster in such ME Schools are to be filled up on the basis of seniority-cum-efficiency. Because of non-inclusion of his name in the said Gradation List dated 13.10.2015, the petitioner submitted that he has been deprived from the right to be considered for promotion to the post of Headmaster in provincialised ME Schools in Dhemaji District. It is also submitted by the petitioner that by not including his name in the said Gradation List dated 13.10.2015, thereby keeping him outside the selection for promotion to the post of Headmaster in ME Schools of Dhemaji District, the DEEO, Dhemaji has acted illegally and arbitrarily.
6) Petitioner stated that he is a Graduate and joined as an Assistant Teacher in said Page No.# 3/8 Naharbari Novodaya ME School of Dhemaji district on 05.07.1985 and that in the year 2015 he had already completed much more than 10 years of service in that ME school. It is also placed before the Court that pursuant to the order of the Government in the Elementary Education Department under No. PMA-30/2013/Pt-1/80 dated 26.03.2013, the Director of Elementary Education, Assam vide order No. EE(Plan)-Provn/UP/Dhemaji/326/13/29 dated 14.05.2013 dated 14.05.2013 provincialised the said Naharbari Novodaya ME School of Borodoloni Education Block of Dhemaji district, including the service of the petitioner and other teaching and non-teaching staff of the said Upper Primary School w.e.f. 01.01.2013 under the provisions of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 amended in 2012. From the said order of provincialisation dated 14.05.2013, the petitioner pointed out that 05.07.1985 has been shown to be the date of his joining in that school.
7) Placing the Notification No. AEE.199/2009/42 dated 02.03.2020 of the Elementary Education Department of the State regarding "Procedure for Promotion and Appointment to the Post of Headmaster of M.E./M.E. Madrassa/ M.V. and Senior Basic Schools" of the State, petitioner stated that its Clause (4) provides that teachers having less than 10 (ten) years of continuous service would not be considered for promotion. Petitioner as such stated that teachers serving continuously for more than 10 (ten) years in a provincialised ME School is entitled to be considered for promotion to the post of Headmaster of provincialised M.E./M.E. Madrassa/M.V. and Senior Basic Schools of the State. Petitioner also placed before the Court the "Statement of Objections and Reasons" of said 2011 Provincialisation Act as well as its amendment of 2012 and submitted that by the said 2011 Act provisions were made for provincialisation of service of those teachers of the Venture Educational Institutions who have completed ten years of service from the date of affiliation, recognition, concurrence and permission of the concerned educational institution.
8) The petitioner stated that as an Assistant Teacher though he joined the said Naharbari Novodaya ME School of Dhemaji district on 05.07.1985, during its venture stage, but from the provincialisation order dated 14.05.2013, noted above, he placed that the said school obtained permission as well as recognition from the authority concerned on 01.10.1991. As such petitioner submitted that even from said 01.10.1991 he had continuously served for Page No.# 4/8 more than ten years in that school and therefore, his name should have been included in the said Gradation List dated 13.10.2015 for consideration for promotion to the post of Headmaster in ME Schools.
9) Petitioner further contended that neither the said Notification dated 02.03.2020, noted above, nor the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 stipulates that only those Assistant Teachers having 10 (ten) years of continuous service after provincialisation would be eligible for promotion to the post of Headmaster in provincialised ME Schools. Relying on a judgment of a Division Bench of this Court in the case of Manmohan Deka and Others Vs. State of Assam and Others, reported in 2012 (4) GLT 250, the petitioner submitted that he is entitled for consideration for promotion to the post of Headmaster in ME School, as he had rendered more than 10 (ten) years of continuous service as an Assistant Teacher in a ME School and therefore, by not including his name in the said Gradation List dated 13.10.2015, the DEEO, Dhemaji committed illegality. As such he has prayed for necessary direction to the respondents in the Elementary Education department to include his name in the said Gradation List.
10) The respondents in the Elementary Education Department of the State have filed its affidavit in the matter clarifying that the School in question in which the petitioner is serving as its Assistant Teacher has been provincialised by the order dated 14.05.2013 w.e.f., 01.03.2013 and prior to that it was purely a Venture Educational Institution not under the control and management of the State Government in the Elementary Education Department.
11) The respondents also stated that the name of the petitioner did not figure in the impugned Sub-Division wise Gradation List of Upper Primary teachers of Dhemaji Sub-Division of Dhemaji district as he did not complete 10 (ten) years of continuous service as an Assistant Teacher of ME School in that Sub-Division in a regular sanctioned post under the Government and therefore, his seniority cannot be counted from the date of his initial joining in that school, prior to provincialisation of his service. The respondents further submitted that as the petitioner's service was provincialised only w.e.f. 01.01.2013, he did not complete 10 (ten) years of regular service in provincialised ME School to be considered for promotion to the post of Headmaster in such Schools, therefore, his name was not included in the impugned Gradation List of Assistant Teachers of provincialised ME Schools of Dhemaji Page No.# 5/8 District dated 13.10.2015.
12) The State Government in the Elementary Education Department on 02.03.2010 issued the Notification regarding "Procedures for Promotion to the Post of Headmaster of ME/ME Madrassa/MV and Senior Basic Schools" and as per the specifications made therein the post of Headmasters in such ME/MEM/MV and Senior Basic Schools are promotional post, which are to be filled up on the basis of seniority-cum-efficiency and recommendation of the District Level Selection Committee (DLSC, in short).
13) As per said Notification dated 02.03.2010, for the purpose of consideration for promotion to the post of Headmaster in such provincialised Upper Primary Schools, the concerned DLSC is required to prepare a Gradation List of Teachers, separately for the provincialised (i) ME, (ii) MEM and (iii) MV and Senior Basic Schools of each of the Sub- Division of the District concerned, in order of the seniority of the teachers, showing their date of appointment, educational qualification, year of passing of training, age on the date of appointment, date of retirement and the same should be communicated to all the incumbents with copies to all the concerned authorities for information.
14) The said Notification dated 02.03.2020 of the Elementary Education Department also clarified that selection for the posts of Headmasters in such Upper Primary Schools (Middle Schools) shall be made strictly on the basis of seniority-cum-efficiency of the teachers, stipulating that the teachers having less than 10 (ten) years of continuous service need not be considered for promotion. Said Notification dated 02.03.2020 further clarified that the said Committee i.e., the concerned DLSC shall prepare a panel of selected teachers on the basis of their seniority-cum-efficiency for promotion to the posts of Headmasters in such (i) ME, (ii) MEM and (iii) MV and Senior Basic Schools of each of the Sub-Division of the District concerned, which shall remain valid for a period of one year from the date of selection.
15) It is to be noted herein that from the proper reading of the said Notification dated 02.03.2010 pertaining to the procedure for promotion to the posts of Headmasters of such (i) ME, (ii) MEM and (iii) MV and Senior Basic Schools of the concerned Sub-Division of the District concerned under the Elementary Education Department of the State, it can be seen that it relates to the teachers of provincialised ME, MEM and, MV and Senior Basic Schools of Page No.# 6/8 the State whose services have been provincialised under the provisions of the Assam Elementary Education (Provincialisation) Act, 1974, whose recruitment and conditions of service are regulated by the Assam Elementary Education (Provincialisation) Rules, 1977. Moreover, the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 have also been framed under the said 1974 Provincialisation Act.
16) The service of the petitioner has been provincialised under the provisions of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 amended in 2012. A Division Bench of this Court vide judgment and order dated 23.09.2016, passed in WP(C) No.3190/2012 (Chandan Kr. Neog Vs. State of Assam) and other connected cases have declared the said 2011 Act to be ultra vires and unconstitutional. During the force of said 2011 Provincialisation Act, nowhere it was stated that the employees provincialised under the said Act of 2011 shall be guided by the provisions of the Assam Elementary Education (Provincialisation) Service Rules, 1977 or the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981. Moreover, Section 16 of the said 2011 Act provided that the State Government may, by Notification published in the Official Gazette, make rules for carrying out the provisions of said Act. While, the said 2011 Act was in force, the State Government in the Elementary Education Department did not publish any Rules pertaining to the employees whose services had been provincialised under the said 2011 Act. As such the provisions specified in the Assam Elementary Education (Provincialisation) Rules, 1977 as well as the provisions of the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 that are framed under the Assam Elementary Education (Provincialisation) Act, 1974 having statutory force cannot be said to be applicable to the petitioner for consideration of his promotion to the post of Headmaster in any such provincialised ME Schools, provincialised under the said 1974 Provincialisation Act, as his service was provincialised under the said 2011 Provincialisation Act.
17) After declaring said 2011 Provincialisation Act to be ultra vires by the judgment and order 23.09.2016, as noted above, the State Government in the Education Department w.e.f., 05.05.2017 brought into force the Assam Education (Provincialisation of Services of Teacher and Re-organization of Educational Institutions) Act, 2017 and Section 23 of the said 2017 Act provides that the State Government may, by Notification published in the Official Gazette, Page No.# 7/8 make rules for carrying out the provisions of said Act. However, nothing has been placed before the Court either by the petitioner or by the respondents in the Elementary Education Department to show that any Rules have been framed under the said 2017 Act. Both the petitioner and the respondents did not place any Rules or any Notification or Guidelines of the Elementary Education Department to establish that Rules, Notifications, Guidelines framed under the said 1974 Provincialisation Act are also applicable for the teaching and non teaching staff of venture elementary schools whose services have been provincialised under the said 2011 Provincialisation Act. No specific order or notification of the Education Department of the State has been placed before the Court either by the petitioner or by the respondents to confirm that the said Notification dated 02.03.2010 is applicable to the teachers whose services have been provincialised under the provisions of the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 amended in 2012.
18) The judgment of Manmohan Deka (supra) cited by the petitioner relates to Assam Secondary Education (Provincialisation) Service Rules, 2003 that has been framed under the Assam Secondary Education (Provincialisation) Act, 1977 Said 1977 Act and 2003 Rules are not applicable to the teaching and non teaching staff of any such elementary schools whose services have been provincialised under the said 2011 Provincialisation Act, during its force. As such, said judgment of Manmohan Deka (supra) is not applicable to the case in hand.
19) It is to be noted herein that the Assam Secondary Education (Provincialisation) Act, 1974 was brought into force w.e.f. 05.09.1975 so as to provincialise the service of the employees of the different categories of the State Board and Regional Boards for Elementary Education and to bring them under the direct management and control of the State Government. Further, such State Board and Regional Boards mentioned in the said 1974 Provincialisation Act were constituted under the provisions of the then Assam Elementary Education Act, 1968. "Existing Teachers" as defined under the said 1974 Provincialisation Act means the teachers appointed or deemed to have been appointed by the Government and by the State Board for Elementary Education under the Assam Elementary Education Act, 1968.
20) The 1981 Rules, noted above, being framed under the said 1974 Provincialisation Act and having statutory force, defined "Sanctioned Post", which means the post sanctioned by the Government either during the regime of the Board as constituted under the Assam Page No.# 8/8 Elementary Education Act, 1968 or after provincialisation and post created by the Board during the regime of the Board. The "Period of Service" as defined under said 1981 Rules means the period of continuous service against a sanctioned post.
21) As per the provisions of said 1981 Rules, the 'period of service' of the petitioner shall be only with effect from 01.01.2013, the date from which his service was provincialised and brought under the Government. Even considering the said 1981 Rules, the petitioner did not complete 10 (ten) years of service as an Assistant Teacher of a ME School for consideration of his case for promotion to the post of Headmaster in any such provincialised ME School provincialised under the 1974 Provincialisation Act.
22) For the reasons above and considering the entire aspect of the matter, this Court is of the opinion that the District Elementary Education Officer, Dhemaji neither committed any illegality nor acted arbitrarily in not including the name of the petitioner in the impugned Gradation List published on 13.10.2015.
23) Accordingly, this writ petition, being devoid of any merit, stands dismissed.
JUDGE Comparing Assistant