High Court · 2012

7. However, the first respondent issued notification No. ASE-378/20 11/pt/2 dated 24-06-2011 allowing respondent No. 3, whose substantive posting is Deputy Secretary, Education (Higher) Department and belongs to the State Civil Service, to hold full charge of Director of Secondary Education, Assam with imme diate effect in addition to his own duties after relieving the petitioner from t he charge of Director of Secondary Education. It was however clarified that the petitioner would continue in his original post as Additional Director of Seconda ry Education.

8. The above notification dated 24-06-2011 is impugned in the prese nt proceeding. The basic ground of challenge is that as per Assam Education Serv ice Rules, 1982, the post of Director should be held by a person belonging to As sam Education Service having first class or higher second class Master Degree an d atleast ten years of teaching experience with atleast five years of administra tive experience. According to the petitioner, while he fulfills the above requir ement, respondent No.3 doesnot fulfill the eligibility requirement in as much as he does not have any teaching experience, there-by disentitling him from holdin g the said post. Further grievance of the petitioner is that respondent No.3 doe s not belong to the education service and is a junior officer as per the Governm ent pay structure. He has also raised the grievance that junior officers of the Department have been allowed to hold charge of Director of other Directorates wi thin the Department ignoring his better claim. His representations to allow him to hold the post of Director considering his seniority and long experience did n ot elicit any response.

9. Respondent Nos. 1 and 2 have filed their counter affidavit. Stat e has taken the stand that respondent No.3 has been allowed to hold full charge of Director of Secondary Education in addition to his own duties as Deputy Secre tary, Education (Higher) Department in terms of Rule 5 of Assam Education Servic e Rules, 1982 (Rules). It is stated that performance of the petitioner when he w as holding charge of Director of Secondary Education was not found satisfactory and, therefore, in the interest of public service and for better and smooth func tioning of the Directorate, petitioner was relieved from the charge of Director of Secondary Education and as per provision of Rule 5 of the Rules, respondent N o.3 has been given temporary charge of the post. It is however stated that as so on as regular Director of Secondary Education joins in the post, respondent No.3 will be automatically reverted to his own substantive post. While other allegat ions made by the petitioner have been denied, it is however admitted that Shri P .Jidung, Joint Director, who is junior to the petitioner, has been allowed to ho ld charge of the office of Director of Higher Education. Petitioner in his re-joinder affidavit has contended that the St 10. ate has not answered the most pertinent question i.e., whether respondent No.3 h as the required qualification to hold the post. Petitioner has reiterated that r espondent No.3 doesnot have any teaching experience and belongs to the State Civ il Service. Therefore, he is not eligible to hold the post of Director of Second ary Education. Contesting the assessment of the service of the petitioner by res pondent Nos. 1 and 2 as unsatisfactory, petitioner has stated that the previous Commissioner and Secretary had praised his performance. Petitioner has contended that he is the senior most person in the service and has all the requisite qual ification to be appointed as Director of Secondary Education. In such circumstan ces, respondent No.3 should not have been given full charge of the office of Dir ector of Secondary Education by relieving the petitioner from such charge.

11. Petitioner has also filed an additional affidavit to bring on re cord a subsequent development, namely, issuance of notification dated 01-02-2012 whereby the petitioner has been allowed to temporarily hold charge of Director of Non-Formal and Adult Education in addition to his own duties as Addl. Directo r of Secondary Education.

12. Respondent Nos. 1 and 2 have also filed an additional affidavit bringing on record the aforesaid fact. It is, however, stated that though the pe titioner was on leave on medical ground, on the day of issuance of the notificat ion dated 01-02-2012 itself, he submitted his joining report and resumed his dut y as Additional Director of Secondary Education in order to take over charge of Director of Non-Formal and Adult Education, Assam.

13. e his response. Though respondent No.3 has been served, he has chosen not to fil Heard Mr. D.K. Sharma, learned Counsel for the petitioner as wel 14. l as Mr. A.D. Choudhury, learned Standing Counsel, Education Department, appeari ng for respondent Nos. 1 and 2. Learned Counsel for the petitioner submits that presently the pe 15. titioner is the seniormost officer in the Department. Petitioner has the requisi te qualification and experience to be appointed as Director of Secondary Educati on. It has been the past practice of the Department to appoint the seniormost pe rson of the Department as the Director of Secondary Education. He submits that a s the respondent No.3 doesnot belong to the education service and doesnot have a ny teaching experience, he lacks eligibility to be appointed as Director of Seco ndary Education and, therefore, he could not have been allowed to hold full char ge of the post of Director of Secondary Education, moreso when a suitable person like the petitioner is available. He also submits that as per the Assam Service s (Revision of Pay) Rules, 2010, though there is a Directorate of Adult Educatio n in the Education (General) Department, there is no post of Director of Non-Fo rmal and Adult Education or Director of Adult Education but only a post of Addi tional Director, Adult Education. He, therefore, submits that it is this post wh ich has been actually offered to the petitioner vide the notification dated 01-0 2-2012.

16. Learned Standing Counsel on the other hand submits that the peti tioner cannot claim as a matter of right that he should either be appointed as D irector of Secondary Education or be given additional charge of the said post. R eferring to the contents of the departmental affidavits, learned Standing Counse l submits that as the performance of the petitioner was not found to be satisfac tory, he was relieved from the additional charge of Director of Secondary Educat ion and as a temporary measure, respondent No.3 has been given charge of the sai d post which is permissible under proviso to Rule 5(1) of the Rules.

17. The submissions made have been considered.

18. Moot question is whether the authority is justified is allowing respondent No.3 to hold charge of Director of Secondary Education, Assam overloo king the case of the petitioner.

19. The Rules provide for a service called Assam Education Service w hich comprises of various classes and cadres. As per Rule 3(1)(a), the service c onsists of only one Director, viz., Director of Public Instruction and below him , there are Additional Director of Public Instruction / Director of Elementary E ducation and Director of Adult Education, referred to as Additional Director. Th us, Director of Elementary Education and Director of Adult Education are equival ent to the post of Additional Director, which is below the post of Director.

20. It is submitted at the bar that the post of Director of Public I nstruction is no longer in existence. As per the schedule to the Assam Services (Revision of Pay) Rules, 2010, the Education (General) Department comprises of t he following five directorates:- (1) Directorate of Higher Education, (2) Directorate of Secondary Education, (3) Directorate of Elementary Education, (4) Directorate of Adult Education, (5) Directorate of SCERT. There are Directors for all the Directorates except the Directorate of Adult Edu cation. In case of Adult Education, it is the Additional Director. All the posts of Director, including the post of Director of Secondary Education, are selecti on posts. Rule 5 provides that recruitment to the post of Director of Publ 21. ic Instruction shall be made by direct recruitment only with qualifications pres cribed under Rule 8. As per Rule 8, the qualification and experience is as per s chedule-II, which says that the qualification prescribed is first class or high second class Master Degree in Arts/Science/Commerce from any recognised universi ty having atleast 10 years of teaching experience with atleast 5 years of admini strative experience. It further says that members of Assam Education Service hav ing minimum 5 years administrative experience will be eligible to apply provided they are within the prescribed age limit. Now, in place of Director of Public I nstruction, which post has been abolished, there are 4 posts of Director, includ ing Director of Secondary Education.

22. Proviso to Sub-rule (1) of Rule 5 provides that if no suitable p erson is found to fill up the post of Director and if it is necessary to fill up the post urgently but cannot be done in accordance with the procedure laid down or under the APSC (Limitation of Functions) Regulation, 1951, the appointing au thority may fill up the post of Director temporarily from the members of the adm inistrative services of the State and such appointment, if made, shall not exten d beyond 2 years at a time. However, prior consultation with the APSC is not nec essary in case of such appointment. Procedure for direct recruitment is laid down in Rule 6, which i

23. s as under :- (cid:28) 6. Direct Recruitment- (1) Direct recruitment to the posts mentioned in sub-ru le (1) of rule 5 shall be made by the Government on the basis of recommendation made by the Commission in accordance with procedure hereinafter provided. (a) Before the end of each year the Government shall make an assessment regardin g the likely number of vacancies to be filled up by direct recruitment during th e next year and shall intimate the same to the Commission, together with the det ails about reservation for candidates belonging to Scheduled Castes and Schedule d Tribes or any other category as provided under Rule-15. (b) The Government shall simultaneously request the Commission to recommend list of candidates for direct recruitment is order of preference. (c) The Commission may hold such test or interview as may be considered necessar y. (d) The Commission shall furnish to the Government a list of candidates recommen ded by it in order of preference, found suitable for direct recruitment. The mem ber of candidates in such a list may be approximately double the number of vacan cies. (e) The Commission shall simultaneously publish the list in the Assam Gazette an d such other place as the Commission may consider proper. (2) all remain valid for 12 calender months from the date of recommendation. The list mentioned in clause (d) and (e) of sub-rule (1) of this Rule sh (3) In the event of the Commissioner being unable to recommend sufficient nu mber of candidates to fill up the vacancies in a year it shall in consultation w ith the Appointing Authority repeat the procedure as mentioned hereinbefore unde r sub-rule (1) of this rule, for recommending a subsequent list in the year. Pro vided that the Appointing Authority shall not make appointment of any candidate from the subsequent select list until all the candidates of the earlier list of the same year, eligible for appointment, have been offered the appointment. (cid:29)

24. From a conjoint reading of Rule 5(1) of the Rules and the schedu le to the Assam Services (Revision of Pay) Rules, 2010, it is quite clear that t he post of Director of Secondary Education is a selection post and is required t o be filled up as per procedure prescribed in Rule 6, subject to the qualificati on prescribed in schedule-II to the Rules.

25. The proviso to sub-rule (1) of Rule 5, which enables the appointing auth ority to fill up the post of Director temporarily from the members of the admini strative services of the State for a period not exceeding two years at a time, w ill come into play only if no suitable person is found to fill up the post and i f it is considered necessary to fill up the post urgently but cannot be done in accordance with the prescribed procedure or under the APSC (Regulation of Functi ons) Regulation, 1951.

26. Suitability of a person is relatable to the qualification prescr ibed in schedule- II and as per assessment of APSC under Rule 6(1) of the Rules, particularly clauses (c) and (d) thereof. It is not based on any adhoc or subje ctive assessment of the appointing authority. Therefore, the action of responde nt No.1 in temporarily allowing respondent No.3 to hold charge of Director of Se condary Education doesnot appear to be justified. Though respondent Nos. 1 and 2 have stated in their affidavit that such temporary arrangement is till joining of regular Director of Secondary Education, no step appears to have been taken t o make regular appointment following the procedure prescribed in Rule 6 of the R ules.

27. At the same time, it is also true that the petitioner cannot cla im as a matter of right that he should either be allowed to hold charge of Direc tor of Secondary Education or appointed on regular basis.

28. In such circumstances, without expressing any opinion on the iss ue of eligibility of respondent No.3 to hold full charge of Director of Secondar y Education on temporary basis or on the peripheral issues raised by the petitio ner, considering the importance of the post which requires it being manned by a regular incumbent, this Court directs respondent Nos.1 and 2 to take necessary s teps to fill up the post of Director of Secondary Education, Assam on regular ba sis as per procedure prescribed in Rule 6 of the Rules. The said the process sha ll be completed within a period of four months from today.

30. Writ petition accordingly stands disposed off. No cost.