CHANDAN KAIRI AND 4 ORS v. MD. MIZAZUL ISLAM LASKAR

Advocate for the Petitioner : MR. A K DUTTA, MR. B PURKAYASTHA Advocate for the Respondent : SC, ELEM. EDU, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN Date : 14.05.2025 ORDER Heard Mr. B. Purkayastha, learned counsel for the petitioners. Also heard Mr. B. Kaushik, learned standing counsel for the respondents in the Elementary Education Department.

2. In this petition, under Article 226 of the Constitution of India, five petitioners have prayed for issuing direction to the respondent authorities to modify and/or amend the Notification, dated 08.03.2022 (Annexure-5), issued by the respondent No. 1 by replacing the terms ME/MEM/MVS/Senior Basic Schools, by the term Upper Primary Schools, wherever written in the above notification in order to remove the inconsistency as far as Clause-2 is concerned, and further to direct the respondents to include the eligible and qualified Assistant Teachers of Lower Primary Schools, whose services have been merged with the Upper Primary Schools, on account of amalgamation policy of the Government for promotion to the posts of Headmaster of the Upper Primary Schools, and also to issue direction to the respondents to consider the case of the petitioners for being promoted to the posts of Headmaster of Upper Primary Schools in the Cachar district.

3. The brief facts, leading to filing of the present petition, are briefly stated as under: Page No.# 4/12 “The petitioners were appointed as Assistant Teachers of Lower Primary Schools in the Cachar district and their services have been amalgamated with Upper Primary Schools as per the policy of Siksha Khetra of Government of Assam. They are eligible and qualified for promotion to the post of Headmaster of Upper Primary Schools and except Petition No.1, all other petitioners are presently holding the charge of Headmaster of their respective Upper Primary Schools. On 08.03.2022, the Special Commissioner, Elementary Education Department issued one Notification, being No. AEE/509/2019/45, in supersession of its earlier Notification, No. AEE.199/2009/42, dated 02.03.2010, framing procedures for promotion to the post of Headmasters/Headmistress of ME School/MEM/MV/Government/Provincialised MV Schools and Government Senior Basic Schools, and thereafter, the District Elementary Education Officer, Cachar, vide her letter dated

12.10.2023, had initiated the process of promotion to the post of Headmaster of Upper Primary Schools, wherein the names of the petitioners have not been included for consideration for promotion to the post of Headmaster. The petitioners have submitted their appeal before the respondent authorities for consideration of their case for being promoted to the post of Headmaster, but the same failed to evoke any response till date. Being aggrieved, the petitioners have approached this Court by filing the present petition for quashing and/or modifying the impugned Notification, dated 08.03.2022, and also to direct the respondent authorities to modify Clause No. 2 of the impugned Notification, dated 08.03.2022.” Page No.# 5/12

4. The respondent No. 2/Director of Elementary Education, Assam has filed her affidavit-in-opposition, wherein a stand has been taken that as per the report submitted by District Elementary Education Officer, Cachar, the petitioners were originally appointed as Assistant Teacher of Lower Primary Schools and subsequently, as per Government notification, their original schools were amalgamated/merged with Upper Primary Schools. It is also stated that they are specifically assigned to teach from Class-I to Class-V and some petitioners were also allowed to function as In-charge Headmaster of their respective merged/amalgamated schools temporarily as a stop arrangement, and it does not confer any right or privilege to claim for regular promotional Headmaster on the strength of in-chargeship, and, therefore, it is contended to dismiss this petition.

5. Mr. Purkayastha, learned counsel for the petitioners submits that Clause-2 of the impugned Notification, dated 08.03.2022, is repugnant with the central law, as it is contradictory to the Right to Education Act, 2009, enacted by the Central Government, and the Right to Education Rules, 2011, by the Assam Government; the Assam Elementary Education (Provincialisation) Rules, 1977 (‘Rules of 1977’, for short), framed under Article 309 of the Constitution of India and the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981, framed in exercise of the power conferred under Section 27(1) of the Assam Elementary Education (Provincialisation) Act, 1974 were solely operating with regard to control and management of the Elementary Education by the State of Assam. Mr. Purkayastha also submits that Clause-2 of the impugned Notification, dated 08.03.2022, reads as under: Page No.# 6/12 Teachers (separately “2) This Committee shall prepare a District gradation ME/MEM/MV/Provincialised MV Schools and Govt. Senior Basic Schools) in order of seniority showing date of appointment, Educational qualification, year of passing of training, age on the date of appointment, date of retirement which should be communicated to the incumbents with copies to all the concerned authorities for information.”

5.1. Mr. Purkayastha also submits that Rule 2(xii) of the Rules of 1977 and the Rule 2(21) of the Right to Education Rules, 2011 define the term ‘Upper Primary School’ and the definition of ‘Upper Primary School’ given in Rule 2(xii) of the Rules of 1977, states that the institution imparting education up to Class-VIII, including the ME/MEM/MV Schools/Senior Basic Schools, whereas Rule 2(21) of the Right to Education Rules, 2011 simply states that the Upper Primary School means an institution imparting education up to Class-VIII and that being so, the impugned Notification,dated 08.03.2022, is required to be modified and/or amended including the categories/terms such as ME/MEM/MV Schools/Senior Basic Schools.

5.2. Mr. Purkayastha submits that Rule 30 of the Right to Education Rules, 2011 clearly empowers the authorities to modify and/or amend the State laws/Rules/Executive Instructions/Notification etc. in order to remove the inconsistency among the State laws and the Central laws, and as such, Mr. Purkayastha submits that necessary direction may be issued to the respondent authorities to replace the terms ME/MEM/MV Schools/Senior Basic Schools by the term Upper Primary Schools in the above impugned Notification in order to remove the inconsistency so far Clause-2 is concerned. Page No.# 7/12

5.3. Mr. Purkayastha further submits that the petitioners herein are eligible and qualified Assistant Teachers of Lower Primary Schools, whose services were merged with Upper Primary Schools on account of amalgamation policy of the Government for promotion to the post of Headmaster of Upper Primary Schools, and under such circumstances, Mr. Purkayastha has contended to allow this petition.

6. On the other hand, Mr. Kasuhik, learned counsel for the respondents in the Elementary Education Department submits that the State respondent No. 1 had issued one Notification, being eCF No. 625938/318, in exercise of powers conferred by the provision to the Article 309 of the Constitution of India and amended the Office Memorandum on Siksha Khetra, which is a scheme for amalgamation and merger of different schools issued vide No.ASE 481/2016/164, dated 03.08.2021. The Amendment of Rule 16 reads as under: “Gradation List: a. In case of two or more LP Schools or two or more UP (ME) Schools, after merger, the gradation list of School or District, as the case may be, has to be revised by incorporating the names of teachers against schools in accordance with the status of seniority of teachers of both schools. He/she will get the seniority as before, and his/her name has to be placed in the appropriate place, in such a way that he/she does not lose his/her seniority. b. In case one or more LP and one or more ME schools are amalgamated, the Assistant teachers of the LP School shall be the employee of the amalgamated School. c. The Headmaster of the ME school shall be the Headmaster of the amalgamated school. d. The gradation list of UP (ME) teachers shall be Page No.# 8/12 fixed as per existing norms for a UP (ME) School. e. The seniority of the amalgamated LP school teachers will be counted as per their seniority of the earlier LP school only for posting of excess teaching employees (if any) elsewhere against any vacant post. f. The Head Teacher (i/c) of the LP School shall continue to draw charge allowance till his retirement or till his posting elsewhere.”

6.1. It is also to be noted here that the earlier Clause, as per Office Memorandum dated 03.08.2021, reads as under: “Gradation List: Each of the teachers shall be the teacher of the higher school after amalgamation /merger and their status will be revised. After amalgamation/merger the gradation list of School or District, as the case may be, has to be revised by incorporating the names of teachers against the higher school in accordance with his/her qualification and status. He/she will get the seniority as before, and his/her name has to be placed in the appropriate place, in such a way that he/she does not lose his/her seniority.”

6.2. Mr. Kaushik submits that the present petitioners were originally appointed as Assistant Teachers in Lower Primary Schools and their schools were merged with Upper Primary Schools and they were assigned to teach from Class-I to Class-V only, and though some of them were appointed as In-charge Headmaster of the amalgamated schools, the same is purely a stop arrangement and the petitioners cannot claim it as a matter of right, and under such circumstances, Mr. Kaushik has contended to dismiss this petition.

7. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record, Page No.# 9/12 and also perused the Office Memorandum dated 03.08.2021, especially Clause- 16; the impugned Notification dated 08.03.2022, especially Clause-2, and the Notification dated 13.03.2025, by which the amendment of earlier Clause No. 16 in the Office Memorandum dated 03.08.2021, has been changed.

8. After careful consideration of the submissions advanced by learned counsel for both the parties and also considering the facts and circumstances on the record, I find substance in the submission so advanced by Mr. Purkayastha, learned counsel for the petitioners. However, his argument about Clause-2 of the impugned Notification, dated 08.03.2022, does not in fact appears to be repugnant to the Right to Education Act, 2009 and the Right to Education Rules, 2011, framed by the Government of Assam and Assam Elementary Education (Provincialisation) Rules, 1977, framed under Article 309 of the Constitution of India and the Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981, framed in exercise of the power conferred under Section 27(1) of the Assam Elementary Education (Provincialisation) Act, 1974. Doctrine of Repugnancy and when it can be applied.

9. The term ‘repugnancy’ is defined in Black’s Law Dictionary as inconsistent or irreconcilable with. Article 254 (1) of the Constitution of India clearly states that if any legislation enacted by the state legislature is repugnant to the legislation enacted by the Parliament then the state legislation will be declared void and the legislation enacted by the Parliament will prevail over the former. In the case of M. Karunanidhi v. Union of India, reported in (1979) 3 SCC 431, Hon’ble Supreme Court has laid down three conditions that must exist for repugnancy to arise which were later reiterated by a Constitutional Bench in the case of West U.P. Sugar Mill Assn. vs. State of U.P., reported in (2010) 9 SCC 548, and these conditions are:- Page No.# 10/12 (i) that, there is a clear and direct inconsistency between the Central Act and the State Act; (ii) that, such an inconsistency is absolutely irreconcilable; (iii) that, the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey one without disobeying the other.

10. It appears that ‘education’ is a part of Concurrent List. That being so both Central Government and the State Government can amend existing laws or make new laws for the betterment of the system. However, if the state Government formulates a law which is inconsistent in a way that disregard the essence in which the Parliament formulates the law on the same subject matter then the state legislation will be declared void. Besides, if the laws so formulated by the state legislature are not entirely inconsistent, but some parts are inconsistent, then the state legislature can enact that piece of legislation after removing the inconsistency.

11. In the case in hand, what Mr. Purkayastha, learned counsel for the petitioners has pointed out is that Clause-2 of the impugned Notification, dated

08.03.2022, is repugnant with the central law, i.e. Right to Education Act, 2009, enacted by the Central Government, and the Right to Education Rules, 2011, by the Assam Government and other relevant Rules presently holding the field. But, testing his submission on the touchstone of the principles, laid down in the case of M. Karunanidhi(supra) this Court is unable to agree with his submission in respect to repugnancy and that the inconsistency, so pointed out by him is Page No.# 11/12 absolutely irreconcilable.

12. No doubt Rule 30 of the Right to Education Rules, 2011 empowers the authorities to modify and/or amend the State laws/Rules/Executive Instructions/Notification etc., in order to remove the inconsistency amongst the State laws and the Central laws. But, for the reason discussed in foregoing para, said power can be exercised when in real fact, repugnancy in the Act and Rules or in any provision in the Act and Rules exists.

13. It also appears from the record that some of the petitioners have submitted their appeal before the respondent authorities for consideration of their case for being promoted to the post of Headmaster. But, the same are yet to be disposed of. If the petitioners are otherwise senior and entitled to be considered for being prompted to the post of Headmaster, after amalgamation of their school, then their case has to be considered by the authority in terms of the seniority list being prepared in accordance with the relevant Rules.

14. Thus, considering the submissions of learned counsel for both the parties, and also considering the given facts and circumstances on the record, this Court is inclined to dispose of this petition by directing the petitioners to file one representation before the respondent authorities i.e. Director, Elementary Education, Assam mentioning their grievances, enclosing a copy of the writ petition and the order of this Court, with the same. It is further provided that in the event of filing such a representation, the respondent authorities shall consider the same in accordance with law in the light of the discussions made herein above and shall pass a reasoned order, after affording an opportunity of being heard to the petitioners.

15. The petitioners shall obtain a certified copy of this order and place the same before the respondent authorities, within a period of two weeks from today. The parties have to bear their own costs.

16. In terms of above, this writ petition stands disposed of. Page No.# 12/12 J U D G E Comparing Assistant