Niren Sarma vs State Of Assam

Heard Dr. R Sarmah, learned counsel for the petitioner. Also heard Mr. N J Khataniar, learned counsel for the respondent no. 1 being the

authorities under the Elementary Education Department, Government of Assam, Mr. B Choudhury, learned counsel for the respondent no. 2 being the

authorities under the SCERT and Mr. B Sarma, learned counsel for the respondent no. 3 being the authorities under the Assam Public Service

Commission.

The petitioner was appointed as a Science Instructor in the year 1989 in the erstwhile Basic Training Centre. In the year 1990, the petitioner was

appointed as a Technician in the Educational Technical Branch at DIET, Jorhat, Titabar and since then he is continuing to serve as such till date. It is

further stated that the petitioner would retire from service upon attaining superannuation on 28.02.2022.

The grievance raised is that inspite of having served as a Technician in the DIET, Jorhat, Titabar for almost 32 (thirty two) years, the petitioner had

not been promoted although it is stated that in the year 2000 there was a recommendation for promotion. Being aggrieved the petitioner instituted

WP(C)/333/2006 which was given a final consideration by the order dated 03.03.2011 wherein a direction was issued to constitute a selection

committee or a special selection committee for the purpose of considering the promotion of the petitioner along with other petitioners of the said writ

petition from the post of Technician to the post of Lecturer in DIET.

In furtherance thereof a selection committee was constituted as per notification dated 25.10.2011. The selection committee took into consideration

the ACRs of 16 (sixteen) number of Technicians along with the petitioner and had recommended Sanjib Gogoi for promotion as Lecturer in the ET

branch of DIET under Regulation 4(d) of the APSC ( Limitation of Function) Regulation, 1951 but the petitioner Niren Sarma was rejected for not

having the requisite qualifications.

A reading of the minutes of the selection committee held on 09.01.2013 would go to show that three posts of Lecturer of ET branch of DIET were

available but none were recommended for promotion from Technician inasmuch as they did not have the requisite qualification and experience.

In the aforesaid circumstance, this writ petition is instituted by the petitioner inter-alia raising the claim that under the Rules in force he has a legal

right to be promoted but was wrongly deprived by the respondent authorities. Dr. R. Sarmah, learned counsel for the petitioner refers to the guidelines

issued by the Govt. of India, Ministry of Human Resource Development (Department of Education) for the purpose of DIET as well as the Assam

District Institute of Education and Training (DIET) Service Rules, 2010 (in short Rules of 2010) to substantiate the claim of the petitioner that under

the guidelines and the Rules, he has a legal right to be promoted from his present cadre of Technician to that of Lecturer. For the purpose, Dr. R.

Sarmah, learned counsel refers to Clause-6 under Chapter-2 of the guidelines which inter alia provides that the cadre of Senior Lecturer, Lecturer and

Technician are the part of the Educational Technology Branch (in short referred as ET).

Dr. R. Sarmah, learned counsel further refers to Clause-2 of the Guidelines Regarding Requirement Procedure Eligibility Criteria and Cadre

Management available as Annexure-12 to the guidelines which provides that free transferability between DIETs and other positions in the State

Education Department must be avoided at all cost and it has to be ensured that the personnel in the DIET are not normally subjected to lateral

transfers to posts elsewhere.

Dr. R. Sarmah, learned counsel also refers to Clause 3 of the aforesaid guidelines which provides for the mode of recruitment and the said clause

provides for three modes of recruitment i.e. direct recruitment through open advertisement, by deputation or contract employment of persons outside

the State Government and/or by promotion to one level within the DIET system to the next higher level through selection on the basis of merit.

Dr. R. Sarma, learned counsel further refers to Rule 3 of the Rules of 2010 which inter alia provides that the service under the DIET shall consist

of the following classes and cadres:-

(a) Class-1 i.e.

(i)Principal ii) Vice Principal (iii) Senior Lecturer and (iv) Lecturer.

Dr. R. Sarmah, learned counsel also refers to Rule 5(iii) of the Rules of 2010 which inter alia provides that the post of Lecturer shall be filled up

by direct recruitment except in the Education Technology Stream/Branch, with further provision that in the Education Technology Branch 80% of the

recruitment are to be done through direct recruitment and 20% by promotion from the qualified technician of the Education Technology Branch.

Accordingly, it is the submission of the learned counsel for the petitioner that on a conjoint reading of the guidelines issued by the Ministry of Human

Resource Development (Department of Education) and the Rules of 2010 it would be discernible that the petitioner has a legal right to be considered

for promotion as a Lecturer from his present cadre of technician.

Mr. B. Choudhury, learned counsel for the SCERT on the other hand submits that as per the earlier direction of this Court in WP(C) 333/2006 in

the order dated 03.03.2011, the petitioner was subjected to a consideration for promotion from Technician to Lecturer but was rejected inasmuch as,

he did not have the requisite educational qualification.

Mr. N.J. Khataniar, learned counsel for the Elementary Education Department also adopts the submission of Mr. B. Choudhury, learned counsel.

In the context of the rival submissions as indicated above, the issue for determination before the Court would be whether under the guidelines and

the Rules of 2010 the petitioner has a legal right to be considered for promotion from Technician to Lecturer and whether for the purpose there is also

a requirement that the petitioner should have the qualification that is prescribed for the purpose of recruitment to the cadre of lecturer.

A reading of Clause-6 of Chapter-2 of the guidelines would go to show that the cadre of Senior Lecturer, Lecturer and Technician are all included

in the Educational Technology Branch which in short referred as ET branch. Further we take note of that free transferability between DIETs and

other position in the State Education Department is to be avoided at all cost which makes it discernible that a personnel who is appointed and serving

in a particular DIET would otherwise continue to serve in the same DIET itself. Further promotion from one level within the DIET system to the next

higher level is also a mode of recruitment within the DIETs. The guideline gives an indication that the petitioner would have a legal right to be

considered for promotion from Technician to Lecturer.

Rule 3 of the Rules of 2010 provides that Class-I of the Service under the DIET would comprise of the cadres of Principal, Vice Principal, Senior

Lecturer and Lecturer and Rule 5(iii) of the Rules, 2010 provides that except for the ET branch the post of Lecturer shall be filled up by direct

recruitment whereas in the case of the ET branch 80% of the post available are to be filled up by direct recruitment and 20% by promotion from the

qualified technicians.

Rule 5(iii) is extracted below:-

“ The post of Lecturer shall be filled up by direct recruitment except Education Technology Stream/Branch. In Education Technology branch, 80%

to be recruited directly and 20% to be filled up by promotion from the qualified Technician of Education Technology branch as per requisite

qualification of Lecturer in Education Technology branch.â€​

A reading of Rule 5(iii) of the Rules of 2010 makes it explicit that the petitioner has a legal right to be considered for promotion from his cadre of

Technician to that of Lecturer against 20% of the cadre strength of lecturer. The petitioner has made a statement before the Court that since his

appointment as a Technician in the year 1990 there had been no promotion from the cadre of Technician to the cadre of Lecturer in the DIET, Jorhat,

Titabar as per his knowledge. The petitioner being a Technician in DIET Jorhat, we accept the said statement of the petitioner that there was no such

promotion from Technician to Lecturer in DIET Jorhat, Titabar.

Reading conjointly of the provision of Clause-2 of the guidelines we have to accept that transferability between the DIET is to be avoided meaning

thereby that the petitioner would have to be considered for promotion to the cadre of lecturer within the DIET, Jorhat at Titabar itself unless there are

other reasons for not doing so or that the petitioner can also be considered for promotion against the cadre of any other DIET.

Having arrived at such conclusion, we examine the relevant procedure prescribed under the Rules of 2010 for promotion. Rule 12(1) of the Rules

of 2010 provides that a vacancy in the cadre of Principal, Vice Principal, Senior Lecturer and 20% of Lecturer in Education Technology Branch as

provided in Rule 5(iii) shall be filled up by promotion in the manner prescribed therein. Rule 12(3) further provides that subject to such suitability as

may be decided by the Board, the officers within the DIET shall be eligible for promotion from one cadre to another in the manner prescribed therein.

Rule 12(3)(i) provides for promotion from the post of Vice Principal/Senior Lecturer to the post of Principal and Rule 12(3)(ii) provides for promotion

from Lecturer to Vice Principal/Senior Lecturer and for the purpose no eligibility is prescribed. A reading of Rule 12(3) (i) and (ii) does not make it

discernible that any qualification is prescribed for being eligible for such promotion.

Mr. B. Choudhury, learned counsel refers to the provision of Schedule-II to the Rules of 2010 where clause-5 thereof provides for the qualification

for the post of lecturer in the ET Branch Accordingly, a submission is made that the authorities by taking note of the provision of Clause-5 of Schedule

II to the Rules of 2010 to deem it appropriate that the qualification prescribed therein would also be applicable for the purpose of promotion from the

cadre of Technician to Lecturer.

We have taken note of that the provision of Schedule II to the Rules of 2010 which is with reference to Rule 8 of the Rules of 2010 and further it

is clearly stated therein that the qualification and experience provided is for the purpose of direct recruitment. Rule 8 of the Rules of 2010 provides for

the academic qualification of a candidate for direct recruitment. As such, reading the headings under the Schedule II of the Rules of 2010 conjointly

with the provision of Rule 8 we have to understand that the academic qualification prescribed therein would be confined only for the purpose of direct

recruitments and nothing in the Rules indicate that it would also applicable in respect of promotion.

In view of such conclusion, we are of the view that the reasons given by the selection committee for rejecting the claim of the petitioner for

promotion on the ground that the petitioner does not have the qualification for the post of Lecturer would have to be unacceptable. We further take

note of that the petitioner would retire from service on 28.02.2022. As the claim of the petitioner for promotion from Technician to Lecturer was not

given a legitimate consideration during his service period and as he would retire from service on 28.02.2022, we direct the authorities in the SCERT to

forthwith constitute the selection committee to consider the claim of the petitioner for promotion from Technician to Lecturer. The selection committee

be constituted on or before 22.02.2022 and the constituted committee shall consider the claim of the petitioner for promotion from Technician to

Lecturer on or before 23.03.2022. If upon completing the process the committee is of the view that the petitioner is entitled to be promoted from

Technician to Lecturer, the necessary order be issued on the same day itself. We are aware that we have put some stringent time conditions on the

respondent. We have done so by taking note of that if the petitioner is to enjoy the benefit of the promotion, let him enjoy atleast for a few days prior

to his retirement.

A copy of the order be provided to Mr. B. Choudhury, learned counsel for the doing the needful.

The selection committee shall not reject the case of the petitioner on the ground of not having the required eligibility condition but otherwise may

consider the claim as per law.

Both the writ petitions stand allowed as indicated above. Interim order, if any, passed earlier stands vacated.