Gauhati High Court
Raman Sarmah vs The State Of Assam And 5 Ors on 21 December, 2021
Author: Sudhanshu Dhulia
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/7
GAHC010115792021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3664/2021
RAMAN SARMAH
S/O- LT. HARI SARMAH, R/O- PEOLI PHUKAN PATH, SIVASAGAR, P.O.
NAMTIAL PATHAR, PIN- 785697
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY ITS COMM. AND SECY. EDUCATION DEPTT. (SECONDARY), TO
THE GOVT. OF ASSAM, DISPUR-06
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
EDUCATION (SECONDARY) DEPTT.
DISPUR
GHY-06
3:THE DIRECTOR SECONDARY EDUCATION
ASSAM KAHILIPARA
GHY-19
4:THE DY. DIRECTOR
SECONDARY EDUCATION
ASSAM KAHILIPARA
GHY-19
5:THE INSPECTOR OF SCHOOLS
SIVASAGAR
DISTRICT CIRCLE
DIST.- SIVASAGAR
ASSAM
6:MANJU CHETIA
ASSTT. TEACHER
Page No.# 2/7
SIVASAGAR GOVT. H.S AND M.P SCHOO
Advocate for the Petitioner : MR B P BORAH
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
(Oral) 21-12-2021 (Sudhanshu Dhulia, C.J.) Heard Mr. PK Goswami, learned counsel for the petitioner. Also heard Mr. R Mazumdar, learned standing counsel, Education (Secondary) Department, appearing for respondent Nos.1 to 5.
2. The petitioner before this Court is a Post Graduate Teacher teaching in Sibsagar Government H.S. & M.P. School, Sivasagar. He has questioned the constitutional validity of Rule 12(4) of the Assam Secondary Education (Government Schools) Service Rules, 2020 (hereinafter to be referred as 'Service Rules, 2020'). This provision makes a person ineligible from consideration for the post of Principal if he has less than one year of service left at the time of selection, though otherwise he may be eligible on all other counts. It is the residuary period one year which has been fixed under the statute, which is under challenge before this Court as being violative of Article 14 and 16 of the Constitution of India. Rule 12 of the Service Rules, 2020 which is regarding recruitment to the post of Principal by promotion and criteria Page No.# 3/7 thereof, reads as under:
"Recruitment to the post of Principal by promotion and criteria thereof:
12.(1) The posts of the Principal in Government Higher Secondary Schools shall be filled up by promotion from the candidates amongst the cadre of Post Graduate Teachers, Vice-Principal, Head Master and the Graduate Teacher having educational and professional qualification as under sub-rule(2).
(2) The candidate must have possessed M.A./M.Sc./M.Com. with B.T./B.Ed. degree from any recognized University having uniform good academic career for being eligible for selection to the post of Principal in Government Higher Secondary Schools;
(3) The candidate must have rendered;-
(a) at least 5 years of service as Vice-Principal in any Government Higher Secondary School; or
(b) at least 15 years of service as Post Graduate Teachers in any Government Higher Secondary School; or
(c) 17 years of service as Graduate Teacher in any Government Higher Secondary School; or
(d) 10 years of experience as Headmaster of Government High School; or 17 years of service both as Headmaster and Graduate Teacher; (4) The age must not be less than 40 years as on the first day of January of the year of recruitment. However, the incumbent must have one year of service left on the day of selection.
(5) The candidate must possess commanding personality, administrative ability, leadership skills and integrity.
(emphasis provided)
3. At the relevant point of time, the petitioner being the senior most teacher in the school was serving as in-charge Principal but since he had less than one year of service left as he was to reach the date of superannuation on 30.10.2021, he was not liable to be considered for inter-selection process.
4. Aggrieved, the petitioner has approached this Court. This Court on 16.09.2021 as an interim measure passed the following order:
"We shall examine this matter, but considering that the Rules have already given powers of relaxation to the Government under Rule 31, we, as an interim measure, direct the State Government to consider the case of the petitioner Page No.# 4/7 under Rule 31 of the Rules for relaxation as far as the residuary period of service is concerned considering that the petitioner has been working as in- Charge Principal since 30.11.2017 and although the Rules had come into effect on 08.05.2020, identification of vacancies and annual selection for those vacant posts, as mandated by the said Rules, has not been even completed as of now. We are fully conscious of the fact that the Government would have difficulty in completing the selection process considering the present COVID-19 pandemic, but we also cannot lose sight of the fact that this has caused hardship to the present petitioner as when the Rules were implemented as well as when the vacancies were determined, he had more than one year of service left and, therefore, before we examine as to the validity of the Rules, we deem it fit and proper to direct the Government to consider relaxation in case of the petitioner in accordance with law.
List again on 1st November, 2021."
5. The State has filed its counter affidavit and the petitioner has also filed rejoinder. Meanwhile, the petitioner has reached the age of superannuation and he has already retired from service on 30.10.2021 as in-charge Principal of Sibsagar Government H.S. & M.P. School, Sivasagar.
6. Whether the aforesaid provision contained in sub-rule 4 of Rule 12 of the Service Rules, 2020 is violative of any provision of the Constitution of India or any other law, is now merely of an academic interest.
7. At this stage, Mr. PK Goswami, learned counsel for the petitioner has placed before this Court the judgment rendered by the Hon'ble Apex Court in the case of Union of India -vs- B.S. Agarwal and another, reported in (1997) 8 SCC 89. The facts of this case are that under the scheme of Indian Railways relating to promotion to the post of General Manager, there was a similar provision, as the one we have in the case in hand. Para 7.3 of the scheme read Page No.# 5/7 as under;
"7.3 Only such of the empanelled officers would normally be appointed to posts of General Managers and equivalent as will be able to serve for at least two years on such higher post(s)."
8. In other words, in the said case only such officers, who have at least 2 years of service left, are liable to be empanelled for the post of General Manager and equivalent. This provision was put to challenge before various Central Administrative Tribunal by affected persons and the Central Administrative Tribunal, Allahabad held that that the two years period though has a logic and reason but the two years period should be calculated not from the date of selection but from the date of accrual of the vacancy. The matter was put to challenge before the Hon'ble Apex Court and the Apex Court upheld the view of the Central Administrative Tribunal, Allahabad and this was depicted in paragraph 27 of the aforesaid judgment, which is reproduced below:
"27. Para 7.3 of the Scheme in express terms refers to the residual service of at least two years on higher post of General Manager and equivalent. But the question that requires to be addressed is from which point of time, the said residual tenure is to be reckoned. In our view, para 7.3 of the Scheme must be given such fair and reasonable interpretation with reference to a fixed point of time so that there is no scope of introducing any uncertainty and variable factors thereby bringing unmerited hardship and injustices by eliminating some of the eligible senior officers either on account of normal procedural delay or delay caused in a designed manner. An empanelled officer having higher inter se seniority over others has a reasonable expectation to get appointment on the accrual of vacancy but if the actual appointment is not made promptly either on account of inherent time-lag associated with procedural formalities or on account of bureaucratic lethargy or by delaying the process of appointment in a calculated and designed manner an eligible and senior officer in the panel cannot but suffer unmerited hardship if para 7.3 is interpreted in the manner advocated by the learned counsel for the respondents. In that event, such officer in the last leg of a brilliant service career will be deprived of the fruits of toil and sincere efforts put in over the years. It is true that in para 7.3 the residual service for at least two years has been indicated in contradistinction to the language appearing in the matter of appointment as Member, Railway Board, but in our view, such expression of residual service for at least two years as Page No.# 6/7 contained in para 7.3 does not stand in the way of giving a fair and reasonable interpretation. In our view, para 7.3 must be held to be referable to the date of accrual of vacancy in order to ensure fairness and transparency in the matter of appointment as General Manager or equivalent. The date of accrual of vacancy is a fixed one and even if any manipulation is made about the date of accrual of vacancy, the actual date of accrual of vacancy can always be ascertained by a closer scrutiny. We, therefore, do not find any merit in the contention that accrual of vacancy is not a certain event and can be easily subjected to manipulation. In our considered view, determination of residuary length of service with reference to accrual of vacancy will not be consistent with the language of para 7.3 but such interpretation will also not frustrate the purpose for which residuary length of service is intended in para 7.3 of the Scheme. The court should lean in favour of such interpretation of a statute which conforms to justice and fair play and prevents potentiality to injustice by liberally construing the provision without intrinsically violating the language of the statute and the purpose intended to be achieved. We may indicate here that although the residual tenure is referable to the date of accrual of vacancy, the intended purpose of reasonable length of service in the post of General Manager and equivalent should not be permitted to be defeated by delaying the actual appointment from the date of accrual of vacancy for long. It will only be proper if the authorities concerned remain alive to the urgency in taking prompt action in making actual appointment, so that such appointment is made at least within three months from the date of accrual of vacancy."
(emphasis provided)
9. The reasons given by the Apex Court in reading down a similar provision as the one before this Court was that it brings unmerited hardship and injustice by eliminating some of the eligible senior officers either on account of normal procedural delay or delay caused in a designed manner in case the residual period is counted from the date of selection rather than from the date of vacancy.
10. The residual service was therefore to be read from the date of accrual of the vacancy in order to give it a fair and equitable meaning.
11. In the case at hand as well the vacancy had occurred much before the petitioner was given the charge of Principal in the school. He was given the charge of the Principal way back in the year 2017. It is again an admitted Page No.# 7/7 position that the post of Principal has not been filled in the school because of the delay caused by none other but by the State authorities. In such a situation where delay is caused by the State authorities or for any other reason, the person who is eligible for being promoted to the said post should not be denied promotion. This heart burning caused to an employee will be removed if the residual period is counted from the date of vacancy.
12. Mr. R Mazumdar, learned standing counsel, Education (Secondary) Department has also expressed a view that it will only be fair and equitable if one year period in this case is calculated not from the date of selection but from the date of accrual of vacancy.
13. Since the petitioner has retired from service and no effective order can be passed as of now in his case but subject to what we have observed above, it would be only fair if the State Government considers this aspect and accordingly takes a decision.
The writ petition is disposed of accordingly.
JUDGE CHIEF JUSTICE Comparing Assistant