Gauhati High Court
WA/122/2024 on 20 March, 2025
GAHC010067812024
2025:GAU-AS:3038-DB
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT APPEAL NO.122 OF 2024
Sri Gobin Sarmah,
S/o Late Premal Sarmah
Resident of Village- NC Nepali, P.O. and
P.S.- Gogamukh, District- Dhemaji,
Assam.
.......Appellant
-Versus-
1. The State of Assam,
[To be represented by the
Commissioner and Secretary to the
Government of Assam, Education
(Secondary) Department, Dispur,
Guwahati-781006].
2. The Director of Secondary Education,
Assam, Kahilipara, Guwahati-781019
3. The Inspector of Schools, Dhemaji,
District Circle, Dhemaji, Assam.
4. Bhabani Hazarika, Assistant Teacher,
Gogamukh Girls High School, Village and
P.O.- Gogamukh, District-Dhemaji,
Assam, PIN-787026.
.......Respondents
Writ Appeal No.122/2024 Page 1 of 12
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE KAUSHIK GOSWAMI For the Appellant(s) : Mr. A.R. Bhuyan, Mr. N.A. Mazarbhuiya, Advocate Mr. N.Z. Choudhury, Advocate For the Respondent(s) : Ms. H. Terangpi, Standing Counsel, Secondary Education Department for respondent Nos.1, 2 and 3.
: Mr. K. Boruah, Advocate and Ms. P. Borah, Advocate for respondent No. 4.
Date of Hearing : 12.03.2025.
Date of Judgment : 20.03.2025.
JUDGMENT & ORDER (CAV)
(Kaushik Goswami,J)
Heard Mr. A. R. Bhuyan, learned counsel
appearing for the appellant. Also heard Ms. H. Terangpi, learned Standing Counsel, Secondary Education Department, appearing for the respondent Nos. 1, 2 and 3 and Mr. K. Boruah, learned counsel, and Ms. P. Borah, learned Counsel appearing for the respondent No. 4.
2. This writ appeal is preferred against the impugned judgment and order dated 29.01.2024, passed by the learned Single Judge in WP(C) No.2621/2022, whereby the writ petition filed by the appellant/writ petitioner was dismissed.
3. The brief facts of the case are that the appellant/writ petitioner was initially appointed as a Writ Appeal No.122/2024 Page 2 of 12 Graduate Assistant Teacher in Gogamukh Girls' High School on 30.10.1986, whereas the respondent No.4 was appointed as a Hindi Teacher in the same school on 21.05.1998. Thereafter, the post of Headmaster of the said school fell vacant on retirement of the incumbent therein on 10.06.2019 and the petitioner was allowed to hold the charge of the post of Headmaster by order dated 10.07.2019. It is the specific case of the appellant/writ petitioner that while he was continuing in such capacity, the respondent authorities vide order dated 24.03.2022 cancelled the order dated 10.07.2019 and allowed the respondent No. 4 to hold the charge of the said post. Situated thus, the writ petition has been filed.
The learned Single Judge, after hearing the parties, was pleased to hold that the there was no error in passing of the order dated 24.03.2022, whereby the respondent No.4 was allowed to hold the charge of the post of Headmistress of the school in question in place of the appellant/writ petitioner by cancelling the earlier order dated 10.07.2019 and accordingly, dismissed the writ petition.
Against the aforesaid judgment and order passed by the learned Single Judge, the present writ appeal has been preferred.
4. Mr. A.R. Bhuyan, learned counsel for the appellant has submitted that the order of the respondent authorities in allowing the respondent No.4 on ad hoc Writ Appeal No.122/2024 Page 3 of 12 arrangement to hold the charge of the post of the Headmistress of the school by replacing the appellant/writ petitioner, which was also an ad hoc arrangement, is illegal and arbitrary. He submits that replacement of an ad hoc appointee by another ad hoc appointee is not permissible. He further submits that the ground of the respondents that the appellant/writ petitioner is not eligible to hold the charge of the post of Headmaster is erroneous and perverse.
He further submits that as the qualifications for appointment of Teacher in the ordinary educational institutions have not been prescribed under the NCTE Act, the B.Ed. degree obtained by the appellant/writ petitioner from the CMJ University cannot be said to be invalid. He further submits that since the appellant/writ petitioner is senior to the respondent No.4, he ought not to have been replaced as In-charge Headmistress vide the respondent No.4.
5. In support of his submission, Mr. Bhuyan has relied on the decision of the Apex Court in the case of Basic Education Board, U.P. Vs. Upendra Rai and Ors., reported in (2008) 3 SCC 432.
6. Per contra, Ms. H. Terangpi, learned Standing Counsel, Secondary Education Department submits that the B.Ed. degree, as obtained by the appellant/writ petitioner from the CMJ University, is invalid. She further submits that by order dated 28.04.2020 the Government Writ Appeal No.122/2024 Page 4 of 12 had declared that B. Ed. degree obtained from the CMJ University cannot be recognized as valid for the purpose of employment and promotion and since the B.Ed. degree of the appellant/writ petitioner was obtained from the from the CMJ University, the petitioner did not have the requisite eligibility criteria and, therefore, was not entitled for being considered for promotion to the said post on ad hoc arrangement.
7. We have considered the submissions advanced by the learned counsel for the parties, perused the material available on record and also considered the case laws cited by the counsels for the parties.
8. Apt at the outset to refer to Rule 14 of the Assam Secondary Education (Provincialised Schools) Rules, 2018 (hereinafter referred to as the 'Rules of 2018') which provides the eligibility criteria for promotion to the post of Headmaster, which is reproduced herein below for ready reference:-
"14. Recruitment to the post of Head Master/Superintendent and procedure thereof: (1) The post of Headmaster of a High School and Superintendent of a High Madrassa shall be filled up by promotion from the candidates amongst the Graduate Teachers as per District-wise seniority list on the recommendation of the District Selection Committee constituted under Rule 16(2). The selection of Headmaster and Superintendent shall be based upon seniority and satisfactory Annual Confidential Report for last 3 consecutive years as per procedure provider under sub-rule (3):Writ Appeal No.122/2024 Page 5 of 12
Provided that the seniority of the Graduate Teacher shall be determined from the date of receiving Graduate scale of pay by the respective Assistant Teacher.
2) Eligibility for the post of Headmaster/ Superintendent in High School/High Madrassa as the case may be shall be as follows:-
(a) He must be B.A/B.Sc/B.Com with B.T/B.Ed degree from any recognized University. In respect of Hindi Teacher having degree qualification, the Hindi 'Parangat' and 'Nishanar' shall be considered instead of B.T/B.Ed;
(b) He must have at least 10 years of teaching experience as Graduate Teacher: Provided that the Graduate teacher shall include the cadre of Assistant Headmaster for the purpose of selection to the post of Headmaster and the seniority of the Assistant Headmaster shall be counted from the date of joining as Graduate Teacher with graduate scale of pay: Provided further that in case of amalgamated High School where ME/MV school has been amalgamated, the Assistant Headmaster is eligible for selection as Head-master subject to the condition that the incumbent should have at least 15 years of teaching experience as graduate teacher including the period of service in the erstwhile ME/MV School.
(3) (i) Before the end of the year the Inspector of Schools shall make an assessment of the number of vacancies to be occurred in the cadres of Headmaster/Superintendent and to be filled up by promotion in the next year;
(ii) The Inspector of Schools shall call particulars in the prescribed format of the eligible candidates/teachers for filling up of the vacancies through promotion. The Member-Secretary shall hold the process of the applications and submit them to the District Selection Committee;
(iii) The District Selection Committee shall hold interview category wise and prepare a panel of select list double the number of vacancies of the concerned district;
(iv) The select list so prepared by the District Selection Committee shall be submitted to the State Selection Board. The State Selection Board after necessary Writ Appeal No.122/2024 Page 6 of 12 verification as may be required, shall prepare a district-
wise select list equal to the number of vacancies and publish the same in the office notice Board or in such other places as the Director may consider fit and proper;
(v) After publication of the select list, the Appointing Authority shall issue promotion order from the approved select list;
(vi) The validity of the select list shall not exceed beyond one year from the date of its publication by the Director."
9. On perusal of sub-Rule (2) of Rule 14 of the Rules of 2018, it appears that a candidate to be eligible for being considered for promotion to the post of Headmaster must be a Graduate with B.T./B.Ed. degree from any recognized university in addition to fulfilling the other required eligibility criteria. In the present case, the petitioner has admittedly obtained his B.Ed. degree from CMJ University. The question that falls for determination is whether the B.Ed. degree obtained from the CMJ University can be said to be from a recognized University or not.
10. Apt that by Amendment Act 18 of 2011, sub- Section 12A was inserted in the National Council for Teacher Education Act, 1993 (hereinafter referred to as the 'NCTE Act, 1993'), which came into force on 01.06.2012, which is reproduced hereunder for ready reference:-
"12A. Power of Council to determine minimum standards of education of school teachers.- For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority:Writ Appeal No.122/2024 Page 7 of 12
Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council:
Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009. (35 of 2009)".
11. It appears that the Council is empowered to determine the minimum standards of education of school teachers. It further appears that 'Council' is defined under sub-Section(c) of Section 2 as the 'National Council for Teacher Education' (hereinafter referred to as the 'NCTE') established under sub-Section (1) of Section 3. It is thus apparent that unless the B.Ed. degree obtained from a university is approved by the NCTE, the same shall not be valid. Reference in this regard is also made to the decision of this Court in the case of Mukta Ram Deka & ors. Vs. State of Assam & ors., reported in 2013 (4) GLT 528, wherein this Court has held that the B.Ed. degree obtained from the CMJ University was not valid as the same did not have the approval by the NCTE. Pertinent that the aforesaid judgment was decided on 24.05.2013, i.e., after the insertion of Section 12A by Amendment Act 18 of 2011. Paragraph Nos. 12 and 13 of the aforesaid judgment are reproduced hereunder for ready reference:-
Writ Appeal No.122/2024 Page 8 of 12"12. On consideration of all the above and particularly the decision of the Apex Court in National Council For Teacher Education (supra) and the O.M. dated 9.7.2012 of the Government of Assam and having noted that for imparting B.Ed. degree by the Bharatiya Siksha Parishad, U.P., C.M.J. University, Meghalaya, Naba Bharat Shiksha Parishad, Orissa, prior approval was not accorded by the NCTE to impart teachers education, I am of the view that the B.Ed. Degree awarded by these institutions are not legally valid. Therefore the B.Ed. Degree holders from such unapproved institutions can't claim appointment, promotion or higher pay. It is declared accordingly. But in so far as the relevance of a legally valid B.Ed. Degree for the purpose of appointment/advance increment/promotion etc., since the issue is being examined by the Division Bench in the Review Petition 21/2013, this Court doesn't make any order on that aspect of the matter.
13. Consequently having declared that the B.Ed. Degree obtained from Bharatiya Siksha Parishad, U.P., C.M.J. University, Meghalaya, Naba Bharat Shiksha Parishad, Orissa etc. which are unapproved by NCTE to be invalid in the eye of law, the State is directed to take appropriate steps for ensuring that no benefit is enjoyed by anyone on the strength of the invalid B.Ed. Degree secured from Intuitions which are not approved by the NCTE. Interim orders in these cases will abide by the declaration made in this order. Cases are disposed of with the aforesaid direction without any order on cost."
12. On a reading of the aforesaid judgment it becomes apparent that unless NCTE approves the B.Ed. degree awarded by CMJ University, the said degree is not valid. It is further apparent from the said judgment that NCTE has not approved the CMJ University to impart teacher's education. Hence B.Ed. degree obtained from CJM University cannot be said to be from a recognized University. Resultantly, B.Ed. degree obtained from CJM University is not valid.
Writ Appeal No.122/2024 Page 9 of 1213. In the present case, admittedly the B.Ed. degree obtained by the appellant/writ petitioner from CMJ University is not recognized by the NCTE. Therefore, the appellant/writ petitioner does not have the requisite educational qualification for consideration for promotion to the subject post of Headmaster. That being the position, the appellant/writ petitioner is not eligible to hold the post of Headmaster. It is settled law that even for holding a post on ad hoc arrangement, one must be eligible as per the eligibility criteria mandated for such post. Hence, the appellant/writ petitioner is not entitled to hold the subject post of Headmaster even on ad hoc interim arrangement.
14. Pertinent that the decision of the Apex Court in the case of Basic Education Board, U.P. (supra) relied by the learned counsel appearing for the appellant/writ petitioner having been decided prior to the insertion of Section 12A in the Rules of 2018, the said judgment is not applicable to the facts and circumstances of the instant case.
15. Apt at this juncture to refer to the operative portion of the impugned judgment and order under appeal, which is reproduced hereunder for ready reference:-
"13. The decision of this Court in the case of Mukta Ram Deka (supra) squarely applies to the issues arising in the present proceedings and it is to be held that the B.Ed. Degree as obtained by the petitioner from CMJ University is an invalid one and basing thereon no benefit can accrue to the petitioner.
14. At this stage, it is relevant to take note of another decision of this Court in the case of Jagannath Pegu Vs. Writ Appeal No.122/2024 Page 10 of 12 State of Assam & Ors,, reported in 2007(3) GLT 389, wherein this Court had held that a candidate eligible in terms of the relevant rules for promotion to a post on regular basis cannot be overlooked for the purpose of any temporary arrangement concerning the post. In other words, for being eligible to be considered for ad hoc interim arrangement against a post, pending regular selection to the said post, it is only a person who satisfies the eligibility criteria mandated for being considered for promotion to the said post on regular basis can only be considered for holding such posts on in- charge basis. Any person, not otherwise, eligible for being considered for promotion to the such post on regular basis cannot be also considered for the purpose of holding the charge of the post pending a regular selection.
15. In view of the said conclusions, as reached by this Court in the case of Mukta Ram Deka (supra) and also in the case of Jagannath Pegu (supra), I am of the view that the petitioner, not being eligible in view of his invalid B.Ed. degree, for being considered for promotion to the post of Headmaster of the said school in question on regular basis, the petitioner could not have been allowed to hold the charge of the post of Headmaster pending regular selection. The respondent No.4, being otherwise, eligible in all respects for being considered for promotion to the post of Headmistress of the school in question, the petitioner who is otherwise ineligible, could not have been preferred above the respondent No.4 in the matter of interim arrangement made for holding the charge of the post of Headmaster of the school in question.
16. The petitioner having been held to be not eligible to hold the post of the Headmaster of the school in question, even on In-charge basis, in view of the fact that he does not meet the eligibility criteria as mandated for recruitment against the post of Headmaster in the school in question, the contentions of the petitioner that the order dated 24.03.2022 has the effect of replacing one ad hoc by another ad hoc, cannot be accepted inasmuch as the replacement in the case of the petitioner's ad hoc appointment as the Headmaster of the school in question was necessitated on account of the fact that he did not possess the requisite eligibility criteria as mandated for Writ Appeal No.122/2024 Page 11 of 12 the post in question and the B.Ed. Degree as possessed by him from CMJ University was held to be invalid. In the said view of the matter, the challenge of the petitioner to the order dated 24.03.2022 that it has the effect of replacing an ad hoc by another ad hoc appointee, cannot be accepted in the facts and circumstances of the present matter and accordingly, the same stands rejected.
17. In view of the said conclusions, I do not find any error in the passing of the order dated 24.03.2022 by the respondents allowing the respondent No.4 to hold the charge of the post of Headmistress of the school in question in place of the petitioner by cancellation of the order dated 10.07.2019. The said order dated 24.03.2022 is in tune with the provisions of Rules of 2018 as well as the judgments of this Court in the cases of Mukta Ram Deka (supra) and Jagannath Pegu (supra) and calls for no interference."
16. It appears that the learned Single Judge has rendered the impugned judgment and order after taking into consideration all relevant provisions of law as well as the judgments passed by this Court on this aspect. Therefore, we are of the unhesitant view that the learned Single Judge has committed no infirmities or error in coming to the conclusion that the order dated 24.03.2022 replacing the petitioner by respondent No.4 does not call for any interference. That being so, the appeal fails.
17. The appeal is accordingly dismissed.
No order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
Writ Appeal No.122/2024 Page 12 of 12