Urmila Bala Das vs State of Assam and Others

P.G. Agarwal, J.—Heard Mr. S.N. Bhuyan, learned Senior Advocate for the petitioner. Mr. A.S. Choudhury, learned counsel for the respondent No. 5 and Mr. B.J. Talukdar, learned Govt. Advocate for the respondent Nos. 1 to 4.

The case of the petitioner is that she was appointed as a teacher in Akaya Girls M.E. School Petitioner passed HSLC examination and she obtained the Degree in Hindi Bisharad and she Joined the post on 17.4.1972 in the said school. The school, was recognised by the Government with effect from 1.6.1967 and subsequently received ad-hoc grant with effect from 1.2.1968. The said school was brought under deficit system of grant-in-aid with effect from 1.3.1976. The school was provincialised with effect from 1.10.1977 alongwith the services of the petitioner. In the year 1999, when the then Head Master was placed under suspension, petitioner being the seniormost teacher in the school, looked after the school as Head master Subsequently, the said suspension order was revoked and the said Head Master resumed his duties. However, on 26.11.1999 the then Head Master died and thereafter the respondent District Elementary Education Officer by passed her claim directing respondent No. 5 to officiate as Head Master vide order dated 7.12.1999. Petitioner has challenged the above order in this writ petition stating inter alia that as she is the seniormost teacher, she is entitled to hold the charge of in-charge, Head Master.

Respondent Nos. 1 to 4 have not filed affidavit-in-opposition.

Respondent No. 5 has filed affidavit-in-opposition wherein it is admitted that the petitioner was appointed as Hindi teacher prior to him; but the petitioner is not seniormost graduate teacher in the school and as such he was rightly allowed to hold the charge. Learned counsel for the respondent has placed reliance on the provisions of Section 4(iii) of the Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 which reads as follows:-

"(iii) Every such school must have -

(a) a Head Master who is a Graduate relaxable up to Intermediate, P.U. (two years) by the Government in exceptional cases;

(b) Assistant teachers who are either normal Matric or Intermediate passed;

(c) minimum one teacher (including Head Master :

Provided that the Government may relax any of the minimum requirements in the public interest in the areas prescribed in the Sixth Schedule of the Constitution."

Mr. Bhuyan, learned counsel for the petitioner on the other hand submits that the above provisions were meant for providing eligibility of Middle English Schools for provincialisation purpose only and once the school was provincialised, the question of promotion to the post of Head Master etc. is required to be governed under the Assam Elementary Education (Provincialisation) Act, 1974 and Assam Secondary Education (Provincialisation) Act, 1977. The provisions of Section 4(iii) as quoted above were meant for a limited purpose to include or exclude M.E. School for provincialisation and does not lay down eligibility or educational qualification required for holding the post of Head Master in M.E. School.

Vide notification dated 30.8.1986, the Governor of Assam laid down the procedure for promotion to the post of Head Master of M.E/M.V. Madrassa/M.V. and Senior Basic Schools. There was further amendment to the said notification on 20.9.1990 whereby para-5 was amended as below:-

"5. The teachers who have passed at lest Matric/H.S.L.C. Normal of have at least Intermediate or its equivalent qualification or above and have successfully undergone necessary training as may be prescribed by the Deptt. shall only to consider for 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."

Mr. A.S. Choudhury, learned counsel for the respondent No. 5 has very fairly submitted that in view of the above provision, the petitioner comes under the zone of consideration for the purpose of promotion to the post of Head Master, but the respondent No. 5, being a graduate, who has already been serving as seniormost graduate teacher, and this being a stop-gap arrangement only the respondent State rightly allowed him to hold the charge. The question of seniority in length of service of the petitioner may be considered by the State Government as and when the question of promotion to the post of Head Master in the usual/regular course is considered. Mr. Bhuyan, learned Senior Advocate on the other hand submits that the petitioner is a Matriculate and she also obtained Bisharad Degree in Hindi which is equivalent to Graduate in Hindi. Moreover, as per paragraph-1 of the 1986 notification, appointment to the post of Head Master is to be made on the basis of seniority-cum-efficiency of the recommendation of a District level Selection Committee to be constituted by the Director of Elementary Education, Assam. In the present case, no such committee has been constituted and the question of promotion to the post of Head Master of Akaya Girls M.E. School has not been taken up by the authority. Post of Head Master and she is also the seniormost teacher in the said school. It may be mentioned here that the scale of pay of the petitioner and respondent No. 5 is one and the same and the petitioner is drawing higher pay on the basis of her length of service.

Now, the question that arises for consideration is when the petitioner is otherwise eligible for promotion to the post of Head Master and she being the senior most teacher in the school, can she be deprived of to hold the charge of the office on the simple plea that respondent No. 5 is a graduate teacher. The Rule nowhere provides that the graduate teacher will get preference over other teachers in case of promotion to the post of Head Master of the School. As a matter of fact, on earlier occasion the seniority of the petitioner was recognised by the authority by allowing her to hold the charge of Head Master of the School during the period of suspension of the then Head Master. The Notification (Annexure-B) dated 30.7.1999 clearly shows that the petitioner is the seniormost teacher of Akaya Girls M.E. School.

Learned counsel for the petitioner has also drawn attention of this court to a decision of this court in Civil Rule No. 3432/93 disposed of on 1.6.1994. The facts in the above referred case were more or less identical to the present case, as the petitioner in that case claimed that he being the only graduate teacher in the school, he is entitled to be appointed as officiating Head Master of the School. This court considered Rule 4(iii) of 1979 Rules and other connected Rules and held that the claim of the petitioner is based on wrong premises and Is misconceived.

I am in full agreement to the above referred decision and hold that by virtue of a degree in Arts/Science, the respondent No. 5 is not placed at higher pedestal and he is not entitled to officiate as Head Master of the school by-passing the claim of the senior teacher. As no regular appointment has been made, the post of Head Master on officiating basis is to be manned by the seniormost eligible teacher unless for the reasons to be recorded the seniormost teacher is not found fit to hold the charge. It is submitted that the petitioner was allowed to cross efficiency bar and there is no adverse remarks against her.

In the result, the writ petition is allowed. The impugned order appointing respondent No. 5 as in-charge Head Master of Akaya Girls M.E. School is hereby set aside. The respondents are directed to pass necessary orders allowing the petitioner to hold the charge of the Head Master. Further considering the fact that the post is lying vacant since February 2000, the respondents will take steps to fill up the post in the regular manner within the shortest possible time.