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Judgment
1.Heard Mr. Debasish Nandi, learned counsel for the petitioner. Also heard Mr. Abani Deka, learned standing counsel, Education Department for
respondent Nos. 1 to 5, Mr. Tapan Roy, learned counsel for respondent No. 7 and Mr. Unni Krishnan Nair, learned senior counsel assisted by Ms.
Niharika Shyamal, learned counsel for respondent No. 8.
Though notice of this case has been served on respondent No. 6 but, he has not appeared in the matter. Hence the matter proceeded exparte
against said respondent.
The matter relates to selection and appointment to the post of regular Principal in National Higher Secondary School, Lumding, a provincialised
Higher Secondary School, pursuant to the Advertisement dated 21.06.2016.
The petitioner herein is serving as a Post Graduate/Subject Teacher in Chemistry in said National HS School for last more than 28 years. Being
qualified and eligible, the petitioner along with other candidates applied for the said advertised post of Principal of said National HS School. Though
interview for the said advertised post was initially fixed on 30.06.2016 but, as the term of the School Management and Development Committee
(SMDC) of said National HS School expired, the interview for the said post was deferred. After constitution of the new SMDC of the said school, a
School Selection Committee of the said HS School was constituted for the interview of said post, which was later held on 14.12.2016.
The State Government in the Secondary Education Department formulated the Assam Secondary Education (Provincialised) Service Rules, 2003, a
statutory recruitment rule under Article 309 of the Constitution of India so as to regulate the recruitment and conditions of service of the persons
appointed to the Assam Secondary Education (Provincialised) Service, which is in force since 12.08.2003. Rule 12 of said 2003 statutory recruitment
Rules relates to ‘Recruitment of Principal in the Higher Secondary/Higher Secondary and Multi Purpose School and Qualification’ whereas
Rule 13 of the said 2003 Rules relates to ‘Procedure of Selection of Principal’. Further, Rule 8 (4) of 2003 Rules provides for constitution of
‘School Selection Committee’ (SSC), whereas Rule 16 of said 2003 Rules relates to ‘the State Selection Board’ and constitution of its
Chairman and Members.
For interview to the post of regular Principal in said National HS School the petitioner appeared before the concerned School Selection Committee
(SSC) of National HS School on 14.12.2016 but, finding that the said SSC was not in conformity with Rule 8 (4) of said 2003 Rules, she submitted a
representation before the President of the SMDC of said school. Thereafter, on 21.12.2016, the petitioner submitted representation before the
Principal of said school and on 26.12.2016, she filed a representation before the Commissioner & Secretary to the Government of Assam, Secondary
Education Department, respondent No. 1, in that regard with a copy to the Director of Secondary Education, Assam, respondent No.2.
It is submitted by the petitioner that the SSC constituted for selection of regular Principal in said HS School was not constituted as per the provisions
of the Rule 8(4) of 2003 Rules and also the Notifications and Office Memorandum issued by the Secondary Education Department in that regard. It is
further contended by the petitioner that there was no quorum in the said SSC when the interview was held on 14.12.2016, which consisted only the
President of the SMDC, the Member Secretary and one Assistant Teacher of said HS school.
As the representation of the petitioner was not considered by the respondents in the Secondary Education Department, she preferred this writ
petition with a prayer to set aside the panel of names recommended by the said SSC of National HS School in the interview held on 14.12.2016 for the
post of regular Principal of said school and for a direction to hold a fresh interview with the same candidates who have earlier appeared in the
interview held on 14.12.2016.
Earlier, when the present writ petition was taken up for consideration on 06.03.2017, the petitioner placed before the Court regarding constitution of
the School Selection Committee of said school pertaining to the interview for the said advertised post of Principal of the school, which was constituted
on 19.12.2016 by the President of the SMDC of said school, the respondent No.7 (Annexure-10 to the writ petition) and on the prayer of departmental
counsel, the matter was fixed on 10.3.2017 and on the said the Court came to the finding that the constitution of the SSC of the respondent school was
not in conformity with the Office Memorandum dated 06.06.2014 of the State Government in the Secondary Education Department and accordingly,
on 06.03.2017 passed an order not to publish the result of the post of Principal of said school till 10.3.2017.
The Court on 10.03.2017, after considering the matter, issued Notice to the respondents herein and in the interim, directed that until further order,
the respondents shall not publish the result of the interview for the post of Principal of said National HS School, Lumding, held on 14.12.2016, which is
still in force.
The respondent No.8, one of the empanelled candidate amongst the 3 (three) candidates for the post of Principal of said HS School after
impleading himself in this petition on 11.09.2017 filed an interlocutory application being IA (Civil) No.3292/2017 on 19.09.2017 for
modification/alteration/vacation/ cancellation of said interim orders dated 06.03.2017 and 10.03.2017 passed earlier in this case to which the writ
petitioner has filed her reply.
As per the provisions of Sub-Rule 2(i) of Rule 12 of 2003 Rules, with regard to Principal in Higher Secondary/Higher Secondary and Multi
Purpose School â€" the candidate, must be M.A./M.Sc./M.Com with B.T./B.Ed. Degree from any recognised University having uniform good
academic career and further Sub-Rule 2(v) of said Rule 12 of 2003 Rules provides that - the candidate must possess commanding personality,
administrative ability and leadership skills. Sub-Rule (2) of Rule 13 of said 2003 Rules regarding Procedure of Selection of Principal provides that â€
On receipt of applications from the eligible candidates the School Selection Committee constituted under Rule 8(4) [of the said 2003 Rules] after
scrutiny of the applications, shall hold an interview and prepare a panel of names of three candidates on the basis of qualities such as leadership skills,
administrative ability, integrity and commanding responsibility.Sub-Rule (3) of said Rule 13 of 2003 Rules provides that â€" ‘The panel of names so
prepared by the School Selection Committee shall be forwarded through the concerned Inspector Schools to the State Selection Board constituted
under Rule 16 [of the said 2003 Rules] for approval.’ Further, Sub-Rule (4) of Rule 13 of said 2003 Rules specifies that â€" ‘After receipt of
the panel under sub-Rule (3) the State Selection Board shall prepare a Select List equal to the number of vacant posts taking into consideration such
as leadership skills, administrative ability, integrity and commanding personality. The penal of names so prepared and recommended by the State
Selection Board shall be submitted to the Government, which may after causing such verification as may be deemed necessary, shall accord approval
for appointment.’
It is also submitted by the petitioner that the State Government in the Secondary Education Department for the purpose of selection to the post of
Principal in such provincialised HS Schools of the State, issued an Office Memorandum on 06.06.2014 in conformity with said 2003 Rules, whereas
for the selection to the post of Principal in such schools, the Director of Secondary Education, Assam on 23.06.2016 issued an order so as to give such
selection an objectivity and to maintain a record for future, in case the selection comes under scrutiny and directed the authorities concerned, more
particularly, the School Selection Committee of such school to award marks to the candidates interviewed for the post of Principal as per the
guidelines and distribution of marks, i.e. maximum of 5 (five) marks each under the heading of Leadership Skills, Administrative Ability and Integrity
totalling of 15 (fifteen) marks as prescribed in the said order (Annexure-13 to the writ petition).
The petitioner submitted that while selecting the candidate to the post of Principal of such provincialised HS School, the School Selection
Committee must adhere to the conditions prescribed by the statutory recruitment Rules in force. According to the petitioner, the said order of the
Director of Secondary Education, Assam dated 23.06.2016 does not contain any marks to the candidates to the post of Principal in such HS Schools
for having uniform good academic career as prescribed by the sub-Rule 2(i) of said Rule 12 of 2003 statutory Recruitment Rules as well as the Office
Memorandum dated 06.06.2014 of the State Government in the Secondary Education Department (Annexure-2 to the petition).
It is seen that as per the provisions of Rules 12 and 13 of said 2003 statutory recruitment Rules as well as the Office Memorandum of the State
Government in the Secondary Education Department dated 06.06.2014 and also the order of the Director of Secondary Education, Assam dated
23.06.2016, as noted above, the State Selection Board is bound to look into the selection process for the post of Principal in provincialised HS School.
A Single Bench of this Court in the case of Mina Prava Barman -Vs- State of Assam and others reported in 2017 (1) GLT 757, decided on
11.01.2017 with regard to selection of Principal in provincialised Higher Secondary Schools under the said 2003 Rules have held that â€
Recommendation of the Selection Committee per se would not give rise to a cause of action for initiating a legal proceeding because no finality is
attached to such a recommendation at a stage prior to according approval by the Government and intervention at that stage would amount to pre-
empting a decision or decisions to be taken by the designated authorities and in the said case, as the matter relating to selection for appointment to the
post of Principal of the concerned HS School on regular basis was yet to attained finality, therefore, dismissed the said Writ petition.
In a case with regard to interview for the post of Professor, a three Judges Bench of the Hon’ble Supreme Court in G. Sarana (Dr.) -Vs-
University of Lucknow reported in (1976) 3 SCC 585, have held that â€" ‘It is difficult to understand how the writ petition or for that matter the
present appeal before us is maintainable when the recommendation of the Selection Committee has still to be scrutinised by the Executive Council of
the university and either accepted or rejected by it and other remedies by way of representation to the Executive Council and an application for
reference of the matter under Section 68 of the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are still
open to the appellant and have not been exhausted’ and for that said reasons, the Hon’ble Apex court in the result, dismissed the said appeal.
In the present case also, the issue relating to the appointment of regular Principal in said National HS School, Lumding pursuant to the
advertisement dated 21.06.2016, for which interview was held on 14.12.2016, is pending before the State Selection Board for its consideration and the
respondents in the Secondary Education Department is yet to take a decision in that regard and further the representations of the petitioner filed
before the respondent authority are yet to be disposed of.
For the reasons above and considering the stage at which the petitioner has approached the Court challenging the selection and appointment to the
post of Principal in National Higher Secondary School, Lumding pursuant to the advertisement dated 21.06.2016, this Court is of the view that present
writ petition, being premature, is not maintainable and at this stage, neither the writ petitioner nor the respondent No. 8 have acquired any right to the
said post of regular Principal in said National HS School, Lumding.
It is to be noted herein that the Hon’ble Apex Court in the case of State of M.P. -Vs-Yogendra Shrivastava, reported in (2010) 12 SCC 538
have settled that â€" When there is conflict between the statutory rules and the executive orders, the statutory rules will prevail and Executive orders
cannot be made or given effect in violation of what is mandated by the Rules.
Considering the above, it is observed that the concerned State Selection Board and the Government in the Secondary Education Department, i.e.
the official respondents herein shall comply with the provisions of the relevant provisions of the Assam Secondary Education (Provincialised) Service
Rules, 2003, as amended and the Office Memorandum of the State Government in the Secondary Education Department dated 06.06.2014 as well as
the Order of the Director of Secondary Education, Assam dated 23.06.2016, in proper perspective, as noted above, before finalizing the selection to
the post of Principal in National Higher Secondary School, Lumding in pursuance of the advertisement dated 21.06.2016.
With the above observation, this writ petition stands disposed of.
The interim orders dated 06.03.2017 and 10.03.2017 passed earlier in this petition stands merged with this order.