Abdus Salam vs State Of Assam And Ors

Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Mr. N. Sarma, learned counsel for the respondent Nos. 1 to 4 and Mr. S.K.

Talukdar, learned counsel for the respondent No.5.

The petitioner prays for setting aside the order dated 10.04.2018 issued by the District Elementary Education Officer, Goalpara, hereinafter referred

to as the ‘DEEO’, Goalpara, by which the respondent No. 5 has been allowed to act as the In-charge Headmaster of Tukura M.E. School,

alongwith delegation of financial power to draw and disburse the monthly salary bill and other transactions of the school. The petitioner has challenged

the impugned order dated 10.04.2018 on the ground that the respondent No. 5 does not have the eligibility criteria to be considered for promotion to the

post of Headmaster and accordingly, he could not have been given the charge of Headmaster of the school.

The petitioner’s counsel submits that as the regular Headmaster of the school was going to retire on 28.2.2018, the DEEO, Goalpara wrote a

letter dated 23.11.2017 to the outgoing Headmaster, asking him to handover all the charges of the school to the next senior most and qualified teacher

of the school. Thus, as the post of In-charge Headmaster would have to be given to the senior most teacher of the School, who was also qualified to

be considered for promotion to the said post, the outgoing Headmaster of the school handed over the charge of Headmaster to the petitioner. The

petitioner’s counsel submits that as the respondent No. 5 has not undergone the necessary training, as required under the Procedures for

Promotion to the post of Headmaster of M.E. Schools, as notified by the Elementary Education Department, Government of Assam, vide notification

dated 02.03.2010, the respondent No. 5 cannot be made the in-charge Headmaster of the school.

The petitioner’s counsel submits that though there is no dispute to the fact that the respondent No. 5 is senior to the petitioner as a teacher of

the school during its venture stage, the service period of the petitioner and the respondent No. 5 as graduate teachers is the same after

provincialisation of the School. He also submits that as the petitioner was placed under suspension from the period from 13.10.2008 till 03.03.2015,

there is a taint/stigma attached to the service of the respondent No. 5 and accordingly, there was no infirmity in the handing over the charge of

Headmaster to the petitioner, by the outgoing Headmaster, who retired on 28.02.2018. He also submits that the handing over charge of Headmaster

has been done on the basis of a resolution taken by the School Managing Committee, hereinafter referred to as the ‘SMC’, on 28.02.2018,

which is not under challenge and accordingly, the petitioner has been holding the charge of the Headmaster w.e.f on 01.03.2018. He also submits that

an in-charge Headmaster cannot be replaced by another incharge Headmaster as this is only a temporary arrangement. He also submits that no notice

was issued to the petitioner prior to the impugned order dated 10.4.2018, by which the respondent No.5 has been allowed to act as the in-charge

Headmaster of the school.

Mr. S.K. Talukdar, learned counsel for the respondent No. 5 submits that the service books of the petitioner and the respondent No.5 clearly show

that the respondent No.5 is senior in service. He also submits that as per Rule 4 of the Assam Elementary Education (Provincialisation) Service and

Conduct Rules, 1981, hereinafter referred to as the “1981 Rulesâ€​, the requirement of having undergone training is done away with on confirmation

of service, provided the teacher has completed 45 years of age and completed 3 years of service after provincialisation, during which time no facility

was provided for the prescribed training. He thus submits that as the service of the respondent No.5 was confirmed as a teacher, there was no further

requirement for undergoing the prescribed training as provided in Clause-5 of the Notification dated 02.03.2010. In the alternative, the counsel for the

respondent No.5 submits that a reading of Clause-5 of the Notification dated 2.3.2010 requires that once a teacher has completed 15 years of

continuous service and no prescribed training facility, required under clause-5, had been provided during the period of 15 years, the requirement of

undergoing the prescribed training was no longer required. He submits that as the respondent No.5 has been provincialised as a teacher w.e.f. the

date of provincialisation of the school, i.e. 19.11.1991, the period of 15 years continuous service ended on 19.11.2006. As no facility for undergoing the

prescribed training was provided to the respondent No.5 prior to 19.11.2006, the requirement of undergoing the prescribed training had become

irrelevant in view of Clause-5 of the Notification dated 2.3.2010.  Mr. S.K. Talukdar also submits that the petitioner has obtained the interim order

dated 25.04.2018, by not coming to Court with clean hands, as the petitioner’s only ground at the time of obtaining the interim order from this

Court was that he was senior to the respondent No.5.

Mr. N. Sarma, learned counsel for the State respondents submits that as per the Procedures for Promotion to the post of Headmasters of M.E.

Schools, issued by the Elementary Education Department, Government of Assam, vide notification dated 02.03.2010, the respondent No. 5 is also

eligible to be appointed as In-charge Headmaster, as he had completed 15 years of continuous service as a teacher and no facility had been provided

to him for the training during the first 15 years of continuous service. He submits that no facility had been provided to the respondent No. 5 for the

prescribed training course as required under clause-5 of the notification dt: 02.03.2010. However, the respondent no.5 was deputed to go for

Certificate of Primary (CPE) course under IGNOU vide order dt. 22.08.2008. The petitioner could not attend the CPE course as he was placed under

suspension w.e.f 13.10.2008. He also submits that the CPE course is not the prescribed training course envisaged under clause-5 of notification dated

02.03.2010. Mr. N. Sarma also submits that selection for the post of in-charge Headmaster in M.E. Schools has to be strictly done on the basis of

seniority and efficiency.

I have heard the learned counsels for the parties.

Clause 3 & 5 of the notification dated 02.03.2010 is reproduced below:-

“(3) Selection for the posts of Headmasters in such Middle Schools shall be made strictly on the basis of seniority-cum-efficiency.

(5) The teacher who have passed at least Matric/HSLC, normal or have at least intermediate or its equivalent qualification or above and have

successfully undergone necessary training as may be prescribed by the Department shall only be considered for promotion. However, the teacher who

have completed minimum 15 (fifteen) years of continuous service but no facilities have been provided to him/her for the prescribed training may also

be considered for promotion provided there is nothing adverse against them.â€​

In the case of Sri Pradip Kumar Das â€"vs- State of Assam & Ors, WP(C) No.4697 of 2016, this Court has held that the senior most teacher, who

is qualified to be considered for promotion as Headmaster should hold the post of in-charge Headmaster. The issue that has to be decided in this case

is, as to whether the petitioner or the respondent No.5 is the senior most teacher of the school and whether both of them are qualified to be considered

for promotion to the post of Headmaster.

Clause-3 and 5 of the notification dated 02.03.2010 has laid down the eligibility criteria required for promotion to the post of Headmaster, which is

to the effect that the teacher should have been at least Matric/HSLC passed and has successfully undergone the training as prescribed by the

Department. The method of selection was to be made strictly on the basis of seniorityâ€"cum-efficiency. The service book of the petitioner and the

respondent No. 5 shows that the writ petitioner was appointed as a teacher of the venture school on 02.10.1989 and the respondent No. 5 was

appointed on 07.02.1987. When the Tukura M.E. School was provincialised on 19.11.1991, the services of the petitioner and the respondent No. 5

were also provincialised w.e.f the said date. With regard to the suspension of the petitioner with effect from 13.10.2018 till his re-instatement on

03.03.2015, the District Elementary Education Officer, Goalpara has issued an order dated 03.03.2018, holding that the period of suspension of the

petitioner was to be treated as “on duty†for all purposes as per F.R. 56 (B). The suspension of the respondent No.5 having been revoked, as he

was acquitted by the Appellate Court in the criminal case, the suspension period of the respondent No. 5 has been regularized by the Government as

on “on dutyâ€​. Thus, there cannot be said to be any taint or stigma attached to the respondent No.5. Thus, for all practical purposes, the respondent

No.5 is the more senior teacher vis-Ã -vis the petitioner. The next question to be decided is whether the petitioner and the respondent No.5 have the

required eligibility criteria to be considered for promotion to the post of Headmaster. Admittedly, the petitioner has got the requisite criteria. However,

the respondent No.5 has not undergone the necessary training as required under Clause 5 of the notification dated 02.03.2010.

Paragraph 8 and 9 of the affidavit-in-opposition filed by the respondent No.3, the DEEO, Goalpara, is to the following effect:

“8. That the deponent states that the respondent No.5 though senior to the petitioner but he does not have necessary training. He was not sent for

necessary training till 2008. However, the Block Elementary Education Officer (BEEO)-cum-Block Mission Coordinator (BMC), Matia vide order

dated 22.08.2008 deputed the respondent No.5 to undergo Certificate of Primary Education (CPE) course conducted by IGNOU. But the respondent

No.5 was placed under suspension w.e.f. 13.10.2008 and therefore, he could not avail the training course conducted by IGNOU.

9. That the deponent further states that as per clause 5 of the Government Notification dated 02.03.2010 provides that the teachers who have

completed minimum 15 years of continuous service but no facility have been provided to him/her for the prescribed training i.e., Junior Basic Training

may also be considered for promotion provided there is nothing adverse against them. The CPE course conducted by IGNOU is for 6 months duration

and the basic training course is for one year, which is conducted by Sate Council for Education Research and Training (SCERT).â€​

The interpretation given by the State respondents, that in view of Clause-5 of the notification dated 02.03.2010, the respondent no. 5 is eligible to be

considered for appointment to the post of Headmaster as has already completed 15 years of continuous service without him undergoing the training, as

no facility for the same was provided to him under clause-5 of the notification dated 02.03.2010 is a correct/plausible interpretation.

The respondent No.5 is having the educational qualification of Matric/HSLC and is also senior to the petitioner. However, the respondent No.5 has

not undergone any training prescribed by the Department. In the same vein, the Department has not prescribed any training, prescribed under clause-5

of the notification dated 02.03.2010, to be undergone by the petitioner. Thus, the respondent No.5 cannot be faulted for not having undergone any

training, as the same was not prescribed by the Department. The respondent No.5 has also been in continuous service for more than 15 years as a

provincialised teacher of the school

w.e.f. 19.11.1991. A careful reading of clause-5 of the Notification dated 2.3.2010 shows that once a teacher has completed 15 years of continuous

service and no facilities have been provided to him for the prescribed training, he can be considered for promotion, provided that nothing adverse is

against him. In the present case, the petitioner having completed 15 years of continuous service on 19.11.2006, this Court is of the view that tenor and

purport of clause 5 of the Notification dated 2.3.2010 does not make it necessary for the respondent No.5 to have undergone training and as such, the

absence of having undergone the training by the respondent No.5, cannot be a bar for considering him for promotion to the post of Headmaster.

Consequently, the absence of undergoing training as provided in clause-5 cannot come in the way of denying the respondent No.5 the post of in-

charge Headmaster.

In respect of the contention made by the petitioner’s counsel that the petitioner was given charge of Headmaster on the basis of the resolution

made by the SMC on 28.2.2018, no Act, Rule or notification made by the State Government has been produced in Court which shows that the School

Management Committee has a role to play in the appointment of a regular or In-Charge Headmaster of a provincialised school. Further this Court

finds that the Notification dated 2.3.2010 does not contemplate any role of the Managing Committee in the matter of appointment of teachers of a

provincialised school. Accordingly, in view of the above, this Court is of the view that no legally enforceable right accrues to the petitioner just

because the SMC had passed a resolution to the effect that he should hold the post of incharge Headmaster. The resolution of the SMC has stated as

follows:

 “Resolution No.3:

Today on 28-02-2018, the Headmaster of Tukura M.E. School, Ali Hussain will take retirement from the Headmaster post by official order and as the

senior teacher Hamida Khatun of the said school expresses her inability in writing, to hold the charge of the said post, and as the Astt. Teacher

Mujaharul Islam, P.U. passed has been placed by the Govt. of Assam under suspension from 13-10-2008 to 03-03-2015, and besides them, Astt.

Teacher Abdus Salam, P.U. passed and Normal Training passed and having the ability to hold the post of in-charge Headmaster, is unanimously

adopted by the members of the committee to allow him to hold that post.â€​

A perusal of the same shows that the respondent No.5 was passed over by the SMC onthe ground that he had been under suspension from

13.10.2008 to 3.3.2015. However, the SMC did not take into consideration the fact that the suspension period of the respondent no. 5 had been

regularised by the State respondents as “on duty†for all purposes. Thus, the resolution of the SMC, in my view was not correct and in any event,

they have got no role to play in the appointment of a regular or In-Charge Headmaster of a provincialised M.E school, as per the Notification dated

2.3.2010.Â

Rule IV of the Assam Elementary Education (Provincialisation) service and Conduct Rules, 1981 states as follows:-

“Confirmation- Subject to availability of a permanent vacancy every member of the service shall be confirmed in the cadre/class/grade to which

he/she is appointed substantively, if,-

(a) He/she has completed at least 3 years continuous service after provincialisation;

(b) He/she has successfully undergone necessary training as may be prescribed by this Department and facilities for which have been offered to

him/her by the Department during the period of 3 years: Provided that these teachers who have completed 45 years of age or have completed 3 years

of continuous service after provincialisation but no facilities have been provided to him/her for the prescribed training, will be confirmed provided there

is nothing adverse against him:

Provided that all teachers whose services have been confirmed and approved by the State Board of the Regional Board prior to 5th September, 1975

shall be deemed to have been confirmed duly with effect from the date of such confirmation.

The proviso to Rule IV of the 1981 Rules does not imply that once the service of Government servant is confirmed on completion of 45 years of

age or has completed 3 years of continuous service after provincialisation, without any training facility being provided, the necessary training is not

necessary as a eligibility criteria for promotion to the post of Headmaster. Rule IV of the 1981 Rules cannot be read into the promotion procedure laid

down for promotion to the post of Headmaster as per the notification dated 02.03.2010, as it pertains only to confirmation and not promotion. The

doing away with the training on fulfilment of certain conditions is however provided for in the notification dated 02.03.2010 itself, as it states as

follows:- “However, the teacher who have completed minimum 15(fifteen) years of continuous service but no facilities have been provided to him/

her for the prescribed training may also be considered for promotion provided there is nothing adverse against them.†As the respondent No. 5 has

not been provided the prescribed training by the State respondents during the period from the date of provincialisation of the petitioner’s service,

i.e from 19.11.1991 till 19.11.2006, and as the respondent No.5 has completed 15 years of continuous service, there is no requirement for the petitioner

to have the qualification of undergoing training as prescribed under clause-5 of the notification dated 02.03.2010. The respondent No.5 will thus be

deemed to be qualified and eligible to be considered for promotion to the post of Headmaster as per the OM dated 02.03.2010 even without having

undergone the training.

The extracts of the status-quo order dated 25.04.2018 passed by this Court records as follows:-

“Mr. Mahmud submits that the petitioner is the senior most teacher and presently holding the charge of Headmaster of the School. In so far as the

respondent No.5 is concerned, Mr. Mahmud submits that he is almost a stranger to the School, in as much as, he was placed under suspension way

back on 13.10.2008 and was reinstated in service on 03.03.2015, meaning thereby, he was out of the School for a period of about 7 years.â€​

A perusal of the same shows that the ground taken by the petitioner for obtaining theinterim order is that he has claimed to be more senior in service

than the respondent No.5. This is proved to be a false statement as per the Service records and as the same has also been subsequently admitted by

the petitioner’s counsel. The petitioner had not pleaded that the respondent no. 5 did not undergo the training prescribed in the notification

dt.02.03.2010 at the time he prayed for an interim order. In this regard, it would be profitable to reproduce an extract of the judgment of the Apex

Court in the case of K.D. Sharma â€"vs- Steel Authority of India Ltd. & Ors, reported in (2008) 12 SCC 481, wherein it has been held at para-38 as

follows:

The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this

Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all

material facts without any reservation even if they are against him. He cannot be allowed to play `hide and seek' or to `pick and choose' the facts he

likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true

and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible.

The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, ""the Court knows law but not

facts"".

 The Apex Court in K.D. Sharma further held that “If the applicant does not disclose all the material facts fairly and truly but states them in a

distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the

rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court

would be failing in its dulyâ€​.

Thus, this Court finds that the manner in which the petitioner has obtained the status quo order dated 25.4.2018 is on the basis of a false statement.Â

In any event, this Court finds that due to the reasons stated above, the respondent No.5 is more senior to the petitioner and he is also qualified to

be considered for the post of Headmaster, even without having undergone the training. Accordingly, this Court is of the view that there is no infirmity

with the impugned order dated 10.04.2018, issued by the DEEO, Goalpara. The respondent No.5 would have to be given the charge of Headmaster by

the petitioner. The status quo order passed earlier stands vacated. The petitioner is directed to handover the charge of in-charge Headmaster to the

respondent No.5 immediately.

As it is not proper to run a school without a regular Headmaster, the State respondents are directed to fill up the vacant post of regular

Headmaster of the school at the earliest.

Consequently, the writ petition stands dismissed.