Monhari Kalita vs Tara Nath Sarma and Others

M. Ramakrishna, C.J.—Mr. Tara Nath Sarma, the first Respondent herein, presented three writ petitions, being Civil Rule Nos. 4824/95, 4934/95 and 1010/96, before this Court. The common relief sought for in these writ petitions is to quash the orders issued by the Respondents in (1) letter No. D(3)S.425/95/6 dated 9th November, 1995, (2) Memo No. GB-EST/Apptt/33/85/105-A dated 17th November, 1995 and (3) Memo No. Est./3/11642-47 dated 30th January, 1996, for the reasons set out in the writ petitions. These petitions were contested by not only the Appellant (5th Respondent in the writ petitions), but also by the other four Respondents. After hearing learned Counsel on both sides, the learned Single Judge of this Court by an order made on 11th June, 1996 allowed the writ petitions by a common order and quashed the above three impugned orders made by the third Respondent. Deputy Secretary to the Govt. of Assam, Education Department, the fourth Respondent, Director of Secondary Education, Assam and the fifth Respondent, Inspector of Schools, Nalbari, respectively. A direction came to be issued by the Court as follows:

The Respondent Government is directed to rectify the select list, wherein the writ Petitioner was shown below the Respondent No. 5, and regularise the appointment of the writ Petitioner as Assistant Headmaster. Regarding the prayer for appointment as Headmaster, the writ Petitioner can approach the concerned authority for the same.

Aggrieved by this order of the learned Single Judge, the Appellant/5th Respondent presented this writ appeal challenging the correctness and legality of the order of the learned Single Judge for the grounds taken in the appeal.

A few facts which are necessary for the disposal of the appeal are as follows:

The undisputed facts as can be gathered from the pleadings of the writ petitions referred to above are that the first Respondent/writ Petitioner, Mr. Tara Nath Sarma, obtained the Graduate degree and also the Post Graduate degree of Bachelor of Teaching (B.T.) and then joined the service in the Department of Education as Assistant Teacher in a Graduate post on 17th April, 1962 in Ghograpar High School. Thereafter he was selected by the competent authority as Assistant Headmaster and he continued to hold the substantive post of Assistant Headmaster as there was a vacancy caused due to retirement of one Hari Ch. Das, Assistant Headmaster and he was allowed to temporarily act as in-charge Assistant Headmaster by an order made on 4th March, 1992. That order came to be issued by Respondent No. 5, Inspector of Schools, Nalbari District Circle, Nalbari. Annexure-1 to the writ petition in Civil Rule No. 4824/95 is a copy of the said order. The writ Petitioner also claimed that he was the seniormost Graduate Teacher and by virtue of his seniority he was allowed to continue as Assistant Headmaster, as per Annexure-2 dated 25th March, 1992. Again by letter dated 22nd February, 1995 (Annexure-3) issued by the 5th Respondent, he was shown as i/c Assistant Headmaster and seniormost teacher. It is stated that since one Shri Debendra Baishya, Headmaster of Ghograpar High School having been retired, the charge of that post was handed over to the writ Petitioner on 7th June, 1995 (please see Anneuxre-4 to the writ petition), as the writ Petitioner was the seniormost in the category of Assistant Headmaster. Later, the Inspector of Schools by an order made on 7th June, 1995 (as per Annexure-5 forwarded the application of the writ Petitioner to the Director of Secondary Education for consideration for appointment as Headmaster. Indeed, by Annexure-6 dated 1st November, 1995, the Director of Secondary Education allowed the writ Petitioner to operate the financial transaction regarding drawal and disbursement of pay and allowances of the staff as the writ Petitioner was allowed to officiate as i/c Headmaster of the school. The Treasury Officer was also requested to honour the salary bills prepared and submitted by the writ Petitioner. This communication was sent to the Treasury Officer, Nalbari.

While the writ Petitioner was so functioning and discharging the duties as in-charge Headmaster on ad-hoc basis holding the charge of that post, the District Level Selection Board, Nalbari published the list of selected candidates for Assistant Headmaster of General Area of Nalbari District on 4th January, 1995. In the said list, the name of the Petitioner was shown at SI. No. 53. The grievance of the writ Petitioner was that his seniority as shown in the list at SI. No. 53 is not correct. It is alleged that his name, originally found at SI. No. 1 was struck off. Therefore, he made a representation and accordingly by order dated 4th November, 1995 (Annexure-7) the Inspector of Schools, Nalbari incorporated the name of the writ Petitioner in the list of selected candidates for Assistant Headmaster of General Area as published on 4th January, 1995.

Inspite of the representations and protests made by the writ Petitioner, by an order made on 9th November, 1995, the Deputy Secretary to the Govt. of Assam, Education Department, 3rd Respondent herein, addressed to the Director of Secondary Education, Assam (4th Respondent herein) issued an order showing that the Appellant/Respondent No. 5, was senior to the Petitioner in the rank of Assistant Teacher and the Appellant was selected for the post of Assistant Headmaster by the District Level Selection Board and therefore he directed the Director of Secondary Education to promote the Appellant/Respondent No. 5 to the post of Assistant Headmaster and to revert the Petitioner to the post of assistant Teacher. The allegation of the writ Petitioner is that this action on the part of the Deputy Secretary was intentional as he made a representation to the Director. Annexure-8 is the copy of the order made by the Deputy Secretary. It reads as follows:

With reference to the letter on the subject cited above, I am directed to say that Shri Manhari Kalita and Shri Tara Nath Sarma, both Asstt. Teacher of Ghograpar High School and joined in service as Asstt. Teacher on 16.8.60 and 17.4.62, respectively. After careful examination of the service records of both the teacher it appears that Shri Manhari Kalita is senior to Shri Tara Nath Sarma. Moreover, Shri Kalita has been selected for the post of Assistant Headmaster by the Dist. Level Selection Board, Nalbari vide Memo No. 413-15 dt. 4.1.95.

In view of the above, you are requested to take necessary steps to promote Shri Manhari Kalita Sr. most Asstt. teacher of the above said school to the post of Asstt. Head Master reverting Shri Tara Nath Sarma as per select list immediately.

In the light of the clarification made in the course of the order dated 9th November, 1995 (Annexure-8), it is seen that the Appellant (Respondent No. 5 in the writ petition) joined service as assistant Teacher on 16th August, 1960, whereas the writ Petitioner joined on 17th April, 1962. Secondly, it is seen that the Appellant was working as Undergraduate assistant Teacher whereas the Petitioner being a Graduate, he joined the service as Graduate assistant Teacher on 17th April, 1962. Thirdly, it is pointed out that the Appellant/Respondent No. 5 having obtained a degree, joined the post of Graduate Teacher afresh on 13th September, 1962. In that view of the matter, the Appellant is junior to the writ Petitioner as Graduate assistant Teacher. It is further alleged that this aspect of the matter was ignored by the Deputy Secretary to the Government of Assam while issuing the aforesaid order dated 9th November, 1995 (Annexure-8).

The legal contentions urged in the writ petitions was that the Deputy Secretary failed to consider this factual position before selecting the Appellant/Respondent No. 5 for the post of Assistant Headmaster. Referring to these salient facts, the learned Single Judge, after hearing learned Counsel on both sides, held that as per Rule 13 of the Assam Secondary Education (Provincialised) Service Rules, 1982 (hereinafter referred to as the Rules, 1982), the Deputy Inspector of Schools has no jurisdiction to prepare and publish the seniority list of teachers and to that extent the seniority list published by him is bad in law. It is further pointed out that the post of assistant Teacher is meant for a Graduate. In other words, a person who was holding a Bachelor''s degree from an approved University shall be entitled to be selected and posted as assistant Teacher and as on the date when the Appellant/Respondent No. 5 joined the service as assistant Teacher, he could not have been taken as a Graduate Teacher as at the relevant point of time, that is, in 1960, he was not a Graduate. Taking into consideration, the date of obtaining the Bachelor''s degree and then joining the post of assistant Teacher afresh on 13th September, 1962, he must be taken as junior to the writ Petitioner inasmuch as the writ Petitioner joined as Graduate assistant Teacher on 17th April, 1962. Considering all these facts, the learned Single Judge reached the conclusion that this is a matter where the Government will have to reconsider the entire aspect including the seniority afresh to resolve this dispute. Accordingly, the writ Court allowed the writ petitions issuing the direction as stated above.

We have heard learned Counsel for the parties and perused the orders of the learned Single Judge under appeal. Since the first Respondent/writ Petitioner, Mr. Tara Nath Sarma, joined the post of assistant Teacher he being a Graduate, on 17th April, 1962, while the Appellant/5th Respondent joined as a temporary assistant Teacher, being an under-Graduate in 1960, the provisions of the Assam Aided High and Higher Secondary Employees Rules, 1960 (hereinafter referred to as the Rules, 1960) are made applicable. Looking at Rule 4 of the Rules, it is seen that the method of recruitment for the post of Assistant Headmasters/Headmistresses and Assistant Teachers of High and Higher Secondary Schools has been specified in Sub-rule (2). Sub-rule (iii) of Rule 5 provides for the academic and other qualifications of other teachers and office Assistants as follows:

A candidate shall possess such qualifications as may be prescribed in this behalf.

However, by a perusal of the scheme of the Rules, 1960, it is no where stated as to what is the minimum academic qualification required to be possessed by candidates for being eligible to the post of assistant Teacher.

However, under the Amended Assam Aided High and Higher Secondary Schools Employees Rules, 1965 (hereinafter referred to as the Rules, 1965), the academic qualification prescribed for the post of assistant Teacher under Sub-rule (3) of Rule 4 is as follows:

(3) assistant Teachers. - The assistant Teachers holding Bachelor''s or Higher Degree shall be selected through a test and/or interview to be conducted either by the Director of Public Instruction or by the Board of Secondary Education as may be decided by the government from time to time.

The Assam Secondary Education (Provincialised) Service Rules, 1982 (hereinafter referred to as the Rules, 1982), which is relevant for the purposes of this case, in Part II dealing with direct recruitment in Rule 6 provides for method of recruitment. Rule 7 deals with the direct recruitment method, which provides as follows:

(1) Direct recruitment shall be made on the basis of recommendation made by the Commission or the Selection Board, as the case may be, with the procedure hereinafter provided:

(a)...

Rule 9 deals with recruitment by promotion to the cadre of Principal, Headmaster, Assistant Headmaster, etc. Clause (v) of Rule 9 provides that the post of Assistant Headmaster shall be filled up from the select list of Graduate teachers having 10 years'' continuous teaching experience. Part III deals with the competent authority for the purpose. Accordingly, Rule 10 provides for Selection Board, which lays down as under:

For the purpose of selection of candidates under Rule 9 there shall be a Selection Board consisting of the following members:

Chairman:

(a) Secretary, Education Department.

Member Secretary:

(b) Director of Public Instruction, Assam.

Members:

(c) Director of Elementary Education, Assam.

(d) A representative of the Education Department.

Thus, for the purpose of selection of candidates for the post of Assistant Headmaster, a Selection Board has to be constituted under Rule 10.

Rule 10A provides for general procedure for promotion. It lays down as follows:

(a) Before the end of each year the appointing authority shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre.

(b) The appointing authority shall then furnish to the Board or the Commission, as the case may be, the following documents and information with regard to the eligible candidates for promotion:

(1) Information about the number of vacancies;

(2) List of candidates, in order of seniority, eligible for promotion (separate lists for promotion to the different cadres shall be furnished) indicating the cadres to which the case of promotion is to be considered.

(3) Character rolls and other records of any of the candidates.

Clause (d) of Rule 10A provides that the appointing authority, on receipt of the list of recommended candidates from the Board/or the Commission, as the case may be, shall fill up vacancies in order of serials in the list.

Therefore, in the list of these provisions of the law extracted above, the competent authority should have taken action to consider the case of the writ Petitioner and the Appellant/5th Respondent to fill up the post of Assistant Headmaster at the relevant point of time. It is nowhere stated in the pleadings that the Selection Board constituted by the competent authority as per Rule 9 took action under Rule 10 to prepare the list of eligible candidates on selection for the purpose of filling up the post. It has also been made clear that when the post of Headmaster became vacant, as found in the instant case, similar action was required to be taken to make selection and thereafter fill up that post. Although there is a reference in the course of the order of the learned Single Judge that according to the allegation made by the writ Petitioner, the Board selected the writ Petitioner as Assistant Headmaster to fill up the post of Assistant Headmaster in the school, that list of selected candidates has not been produced by the writ Petitioner. Again, there is a reference made that the Board selected the Appellant in 1995 to fill up the post of Assistant Headmaster. It has been referred to in the course of the order of the learned Single Judge. But there is no finding as to whether this list has been prepared by the competent authority following the provisions of Rules 10 and 10A of the Rules, 1982, referred to above. Therefore, it is not clear as to whether the competent authority has taken action in terms of Rules 9, 10 and 10A of the Rules, 1982 to make a select list. In other words, it is for the Board that is constituted under Rule 10 to take action under Rule 9 to prepare the list of eligible candidates under Rule 10A and thereafter the appointment order will have to be issued in favour of the selected candidate in accordance with the law.

By a perusal of the averments in the writ petitions and the defence taken by the Respondents therein it is nowhere stated that these Rules have been followed which are relevant for the purposes of the procedure to be complied with to make the selection and then appointment orders have been issued in favour of the selected candidates.

Although the learned Single Judge quashed the impugned orders in the writ petitions and directed to redo the whole thing, the learned Single Judge has not noticed these statutory provisions of law while issuing the writ of mandamus. We are of the opinion that in the light of the foregoing, the conclusion reached by the learned Single Judge requires to be modified. We accordingly modify the order under appeal and pass the following order:

(1) This appeal stands disposed of in terms of the following order. We uphold the order of the learned Single Judge quashing the impugned orders made by the competent authority.

(2) besides the operative portion of the order passed by the learned Single Judge in paragraph 9 stands modified as follows:

The Respondents 1 to 4 are directed to refer to the relevant provisions of the law, that is, Rules 9, 10 and 10A of the Assam Secondary Education (Provincialised) Service Rules, 1982 and to take action to make selection of eligible candidates, considering the case of the Appellant and the writ Petitioner (Respondent No. 1 herein) after preparing the seniority list of assistant Teacher inter se in accordance with the Rules and then to pass appropriate orders to fill up the posts of Assistant Headmaster and Headmaster found vacant at the relevant point of time in accordance with the law after providing opportunities to these persons of being heard.

With this modification of the order under appeal, the appeal stands disposed of. Parties to bear their own costs.