Judgment · High Court · 2012

ondary School, shall or shall not be counted. 2. A learned Single Judge of this Court has, by judgment and order, dated 0 6.08.2011, disposed of the writ petition, namely, WP(C) No.4538/2009, by taking the view that the past services, rendered by the members of the petitioner Assoc iation, namely, Assam State Higher Secondary School (Government and Provincialis ed) Demonstrators Association, in the posts of Demonstrator, shall, under the 20 03 Rules, be counted. In consequence of this finding, two letters, dated 30.09. 2009 and 05.10.2009, which had been issued by the Government to the contrary and which stood impugned in the said writ petition, were set aside and quashed.

#3. Writ Appeal No.266/2011 as well as 274/2011 have been preferred by the p ersons, who alleged to have been adversely affected by the judgment and order af orementioned, and, according to whom, counting of past service of a person, whic h the person might have had rendered in the post of Demonstrator, will be illega l and ought not to be counted, for, the post of Demonstrator has been encadred, for the first time, in 2003 Rules, within the expression ’Graduate Teacher’, and , hence, the demonstrators shall be treated as Graduate Teachers not w.e.f. from the date of their joining the posts of Demonstrator, but w.e.f. 11.08.2003, i.e . the date on which the 2003 Rules were brought into force. 4. So far as Writ Appeal No.286/2011 is concerned, the subject-matter of th is appeal is the order, dated 17.11.2011, passed, in WP(C) No.5769/2010, by a le arned Single Judge of this Court, whereby, relying upon the decision in WP(C) No .4538/2008 aforementioned, the Commissioner and Secretary to the Govt. of Assam, Education (Secondary) Department, has been directed to reconsider the matter of seniority of the writ petitioner and the respondent No.5 therein in the light o f the position of law, which has been laid down in WP(C) 4538/2009, wherein the Court, as already mentioned above, has made it clear that, with the encadrement of the Demonstrator, under the 2003 Rules, as ’Graduate Teacher’, the past servi ce, rendered by a person, in the post of Demonstrator, shall be counted for the purpose of determining his/her seniority in the cadre of Graduate Teacher. We have heard Mr. R.P. Sharma, learned Senior counsel, on behalf of the 5. appellant in Writ Appeal No.266/2011, and Mr. D. Mazumdar, learned counsel, appe aring for the appellants, in Writ Appeal Nos.274/2011 and 286/2011. We have also heard Mr. D.K. Mishra, learned Senior counsel, for the writ petitioner-responde nt in Writ Appeal No.286/2011, and Mr. M.R. Pathak, learned Standing Counsel, Ed ucation Department, Govt. of Assam. 6. The material facts, giving rise to these appeals, may, in brief, be set out as under: (i) Assam State Higher Secondary School (Government and Provincialis ed) Demonstrators Association, which the name of the Association, itself, disclo ses, is an Association of Demonstrators, working in various Government as well a s provincialised Higher Secondary Schools, in Assam, having more than 200 member s, the Association being a registered Association and every member of the said A ssociation holds a Bachelor Degree in Science, which is the qualification requir ed, for the post of Demonstrator, in Higher Secondary Schools. The post of Demon strator was introduced, in the year 1973, to take practical classes in Science s ubjects. Although the members of the petitioner Association were recruited for t aking practical classes, Government of Assam used to treat, vide various circula rs, the Demonstrators as normal teachers for all practical purposes and allotted to them normal classes to be taught by them in the absence of sufficient teachi ng staff in schools. Some of the Demonstrators were, at times, made in-charge of the office of Principal/Vice-Principal of various Higher Secondary Schools. (ii) It was also the case of the petitioner Association that the post of Demonstrator was created, in the year 1973, for Higher Secondary Schools, wi th minimum qualification being graduate in Science and the Demonstrators were ma de entitled to receive graduate scale of pay from the dates of their respective regular appointments, though no Service Rules were famed in that behalf. In the year 2005, respondent No.2, namely, Director of Secondary Educati (iii) on, Assam, had directed all the Inspector of Schools, in the State, to furnish p articulars of Demonstrators, along with Graduate Teachers of provincialised High er Secondary Schools, in order to consider them for promotion to the next higher post, namely, Principal and Vice Principal of these schools. The Demonstrators, who were senior in the schools, had been accordingly called for interview and h ad, in fact, been interviewed for promotion. (iv) Though Demonstrators had been working as Graduate Teachers and receiving graduate scale of pay from their respective dates of appointments, no service r ules were framed by the Government governing the service conditions of Demonstra tors. This prompted the Demonstrators to make various representations to the Sta te Government for framing of necessary rules and, eventually, Assam Secondary Ed ucation (Provincialisation) Service Rules, 2003, were framed, which came into fo rce on 11.08.2003. (v) Moreover, Under Secretary to the Govt. of Assam, Department of Higher Ed ucation, issued two impugned letters, dated 30.09.2009 and 05.10.2009, directing the respondent No.3, namely, Director of Secondary Education, Assam, to count s eniority of Demonstrators only with effect from the date of coming into force of the 2003 Rules, i.e., with effect from 11.08.2003, on the ground that Demonstra tors had been included, only on 11.08.2003, within the expression ’Graduate Teac her’ by virtue of Rule 2(n) and 2(v) of the 2003 Rules. On the basis of the vie w taken by the Government by its letter, dated 30.09.2009, the earlier order, co ntained in the letter, dated 29.08.2006, issued by the concerned Inspector of Sc hool, was cancelled by letter, dated 05.10.2009, issued by the Director of Highe r Education. The respondents, in the writ petition, namely, WP(C) 4538/2009, conteste 7. d the writ petition, the case of the respondents being, in brief, thus: There ar e altogether 549 numbers of sanctioned posts of Demonstrators, in the Government and Provincialised Higher Secondary Schools, under the Directorate of Secondary Education, Assam. The minimum educational qualification of a candidate, for app ointment to the post of Demonstrator, is graduate in Science with second class h onours/major in the concerned subject. While the pay scale of the Demonstrator w as similar to the Assistant Head Master/Assistant Head Mistress/Assistant Superi ntendent of High School/High Madrassa, this pay scale was made personal to the D emonstrators in service; but while the pay scale of the newly appointed Demonstr ators has been same as the pay scale of graduate teachers in High and Higher Sec ondary Schools. Services of teaching and non-teaching staffs of provincialised H igher Secondary Schools of Assam are governed by the Assam Secondary Education ( Provincialisation) Act, 1977, which came into force on 01.10.1977 and the servic e rules were framed from time to time. The term ’Demonstrator’ was not defined t ill 2003 Rules came into force. The function of Demonstrators, according to the respondents, was to help and instruct the students, in practical classes, in lab oratories and they are required to take practical classes unlike Subject Teacher s, Graduate Teachers, etc, though there might have been Demonstrators, who had t aken up regular classes in the absence of regular teacher of the subject concern ed. This would not, however, vest, in such a Demonstrator, the status of a Gradu ate Teacher or of Subject Teacher or of Language Teacher inasmuch as their main duty is to take practical classes.

#8. As the learned Single Judge of this Court, in WP(C) 4538/2009, we have a lready pointed out above, held that the past services, rendered by the members o f the petitioner Association, in the posts of Demonstrator, shall be counted wit h effect from the respective dates of their appointments to the post of Demonstr ator, this decision is essentially under challenge in the present appeals. 9. The sum and substance of the submissions, made on behalf of the appellan ts, is that Demonstrators have been included within the expression Graduate Teac her by Rule 2(n) and 2(v) of the 2003 Rules, which came into effect on 11.08.200 3, and, hence, the service, which a person might have had rendered, in the post of demonstrator, till 10.08.2003, cannot be counted for the purpose of determini ng his seniority in the cadre of Graduate Teacher and, therefore, the learned Si ngle Judge fell into serious error in law in directing that the past service, re ndered by a person, in the post of Demonstrator, shall be counted for the purpos e of determining his seniority in the cadre of Graduate Teacher. 10. Appearing on behalf of the State respondents, Mr. M.R. Pathak, learned S tanding Counsel, Education Department, has fully supported the case of the appel lants, while Mr. D.K. Mishra, learned Senior counsel, appearing on behalf of pri vate respondent, in Writ Appeal No.266/2011, has resisted by contending to the e ffect, inter alia, that with the coming into force of the Assam Secondary Educat ion (Provincialisation) Act, 1977, (hereinafter referred to as ’the Act of 1977’ ), the employees of all the secondary schools, in the State of Assam, became, by virtue of Section 3 of the Act of 1977, employees of the State Government and a duty was cast on the State Government, by Section 3(3) of the Act of 1977, to e ncadre the employees, in appropriate cadres, in accordance with the rules to be framed by the State Government. Though the State Government framed earlier the Assam Secondary Education (Provincialisation) Service Rules, 1982, (in short, ’1 982 Rules’), the 1982 Rules did not include Demonstrator within the definition o f Teacher or Assistant Teacher. By including Demonstrators within the definition of the expression ’Graduate Teacher’ under the 2003 Rules and thereby, encaderi ng Demonstrators, within the fold of Graduate Teachers, the Government, accordi ng to Mr. Mishra, has undone the wrong, which had been perpetuated, in violation of Section 3(3) of the Act of 1977, by omission to encadre the Demonstrators ap propriately. 11. In order to fully and appropriately appreciate the intricacies, involved in the present writ appeals, it is apposite to examine the subject-matter of co ntroversy of these appeals from the very commencement of the Act of 1977, which came into force on 01.10.77. Section 2 of this Act had two important expressions , namely, ’employee’ and ’existing employee’ as defined by clauses (v) and (vi) respectively of Section 2 thereof. These two expressions, contained in the Act o f 1977, read as under: (cid:28)2 (v) &employee means a person in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the school authority wherever such approval was necessary. 2(vi) existing employee means an employee, who is, on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has be en approved by the school authority. (cid:29)

#12. The expression ’employee’, as defined in Section 2(v), indicates that ev ery person, in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the school authority, wherever such approval was necessary, shall be treated as an employee. Similarly, an ’exi Close on the heels of the definitions of ’employee’ and ’existing employ sting employee’, as defined by Section 2(vi), means an employee, who is, on the appointed day, in the regular pay roll, employee against regular sanction and wh ose appointment has been approved by the school authority. 13. ee’, Section 3 reads as under: (cid:28)3. Employees to be Government servants - Subject to the provision of Article 30 of the Constitution of India, on and from the appointed day, all employees of a ll secondary schools in the State of Assam shall be deemed to have become employ ees of the State Government of Assam with effect from the date of appointment on the following terms and conditions- (1) All rules including service rules and rules of conducts and discipline which are applicable to Government servant of corresponding ranks shall be applicable to all employees; (2) All employees shall get such emoluments as salary and allowances as may be prescribed; (3) Services of all the employees shall be encadred in appropriate cadres in ac cordance with rules framed by the State Government for this purpose. (4) The inter-se seniority of the employees of a cadre or class shall be determ ined on the basis of the principles laid down in the rules framed under this Act . (cid:29) We may hasten to add that Section 8 vests, in the Government, the rule-m

#14. A bare reading of Section 3 shows that on the very appointed day (i.e., the date on which the Act of 1977 came into force in a given area), all employee s of all secondary schools, in the State of Assam, became, by a legal fiction, e mployees of the State Government with effect from their respective dates of appo intment. Section 3(3) came to cast a duty, on the State Government, to encadre, into appropriate cadre, the services of all employees in accordance with the Rul es, which may be framed, for this purpose, by the State Government. 15. aking power for giving effect to the provisions of the Act of 1977. 16. Because of the provisions, contained in the Act of 1977, it cannot be di sputed that on the day, when the Act of 1977 had come into force, the post of De monstrator, with qualification as indicated above, did exist in many Higher Seco ndary Schools. Consequently, with the provincialization of the school, Demonstra tors became, like any other employee of such schools, employees of the State Gov ernment and the State Government had, therefore, the duty to make appropriate ru les encadreing each of such employees or each class of these employees into appr opriate cadre.

#17. The Act of 1977 was followed by the Assam Secondary Education (Provincia lised) Service Rules, 1982 (in short, ’1982 Rules’). The 1982 Rules remained sil ent as regards the Demonstrators, but encadred the Graduate Teachers. What is, h owever, extremely important to note is that Section 2(h) of the 1982 Rules defin ed the ’period of service’ to mean the period of continuous service from the dat e of appointment as defined in the Act of 1977. Similarly, Rule 2(k) defined ’se rvice’ to mean the Assam Secondary Education (Provincialised) Service. 18. Rule 13 of the 1982 Rules embodied the provisions, as regards determinat ion of inter se seniority of the existing employees, and Sub-Section (1) thereof read as under: (cid:28)The inter se seniority of the existing employees, in the respective cadre, shal l be determined in relation to the : (a) Date of continuous appointment. (b) Date of Joining. (c) Date of birth. (cid:29)

#19. From a bare reading of Rule 13(1) of 1982 Rules, it became abundantly cl ear that the inter se seniority of the existing employees, in the respective cad re, was required to be determined in relation to the (a) date of continuous appo intment, (b) date of joining and (c) date of birth. As employees cannot be discr iminated, it logically follows that had the Demonstrators been encadred in 1982 Rules, their seniority, too, would have been counted from the date of their cont inuous appointment, their respective dates of joining and dates of birth. What is, now, of utmost importance to note is that the State Government 20. made Assam Secondary Provincialised Service Rule, 2003, which is already being r eferred to as ’2003 Rules’. 21. 2003 Rules have, for the first time, as already pointed out above, encad ered the Demonstrators, working in the Higher Secondary Schools, within the expr ession of Graduate Teacher. The expression, ’Graduate Teacher’, according to Ru le 2(n) of the 2003 Rules, means the category of Assistant Teacher in High/Highe r Secondary/Higher Secondary and Multipurpose/High Madrassa Schools for whose ap pointment the minimum qualification prescribed is a Graduate degree in Arts, Sci ence or Commerce including Demonstrators in Higher Secondary/Higher Secondary & Multipurpose School. 22. On a close and cautious reading of the definition of ’Graduate Teacher’, as embodied in Rule 2(n), it becomes transparent that a ’Graduate Teacher’ fall s within the category of Assistant Teacher and, similarly, a Demonstrator, too, falls within the category of Assistant Teacher. Thus, Graduate Teacher as well a s Demonstrator stands on the same footing inasmuch as both fall within the categ ory of Assistant Teacher. Close on the heels of the above definition of Graduate Teacher, Rule 2(v 23. ) of the 2003 Rules defines a ’Teacher’ to mean all Assistant Teachers, Facultie s including Principal, Vice-Principal, Headmaster, Headmistress, Superintendent, Asstt. Headmaster, Asstt. Headmistress and Demonstrators. A conjoint reading of Rule 2(n) and Rule 2(v) of the 2003 Rules shows th 24. at within the expression (cid:28)Teacher (cid:29) stands included all Assistant Teachers and an Assistant Teacher includes, within its fold, both, a Demonstrator as well as a Graduate Teacher. In other words, the expression, ’Teacher’, includes not merely Graduate Teachers, but Demonstrators too, both these classes of people having f allen in the same category of employment, the category of employment being ’Assi stant Teacher’ as reflected by Rule 2(n).

#25. To put it a little differently, a combined reading of Rule 2(n) and Rule (v) of the 2003 Rules clearly shows that since a Graduate Teacher falls within t he category of Assistant Teacher and a Demonstrator, too, falls within the categ ory of Assistant Teacher, the Demonstrators and the Graduate Teachers stand, und er the 2003 Rules, at par with each other and, so long as the 2003 Rules remain unchallenged and undisturbed, both these classes of people, namely, Graduate Tea chers and Demonstrators will remain in the same category.

#26. We may pause, at this stage, to point out that in none of the writ petit ions, which we are concerned, the encadrement of Demonstrators within the expres sion (cid:28)Graduate Teacher (cid:29) has been under challenge. 27. The question, therefore, which legitimately arises for consideration, is : When the Demonstrators stand included within the ambit of the expression (cid:28)Grad uate Teacher (cid:29) and when encadrement of Demonstrators within the category of Assis tant Teacher, which expression includes a Graduate Teacher, has not been object ed to or interfered with, will it be fair and just not to count the service of a person, rendered in the post of Demonstrator, while the past service of a Gradu ate Teacher, who stands on the same footing, as does a Demonstrator, is counted ? The answer to this vital question is not very far to seek inasmuch as the Dem onstrators and Graduate Teachers having been encadred together, it would be whol ly arbitrary and, consequently, unjustifiable and discriminatory if the service, rendered by a person, in the post of Demonstrator, is not counted for the purpo se of determining his seniority; whereas the service, rendered by a person, as G raduate Teacher, is counted from the date, when he had started working in the ca pacity of Graduate Teacher. 28. The only submission of the appellants, in the present case, is that sinc e the Demonstrators have been encadred, for the first time, in 2003 Rules, they cannot be given, for the purpose of counting their seniority in the cadre of Gra duate Teacher, the benefit of the service, which they might have had rendered as Demonstrators. This submission is devoid of any legal or logical force inasmuch the Demonstrators, having been encadred, in the manner as indicated above, stan d on the same footing as do the Graduate Teachers and when a Graduate Teacher’s seniority has to be counted, admittedly, not from the date of provincialisation of his school, but from the date, when he received his continuous appointment an d started working in the post of Graduate Teacher, there is no rational cause fo r demanding that the Demonstrators, who are, otherwise, similarly situated, as G raduate Teachers, shall not be given the benefit of their past services and the ir services, rendered in the posts of Demonstrator, shall be kept excluded from the purview of consideration, while determining the inter se seniority, in the c adre of Graduate Teachers, though their encadrement, within the expression, ’Gra duate Teacher’, has, as already pointed out above, not been challenged. The fail ure or delay, on the part of the State Government, in properly encadreing the De monstrators, cannot be made a cause to deny to a Demonstrator his right that his service, in the post of Demonstrator, rendered before the date of provincialisa tion of his school, be counted, while determining his seniority.

#29. Drawing attention of this Court to Rule 3, which deals with Classes and Cadres, Mr. Majumdar, learned counsel, has sought to make out that while Demonst rators and Graduate Teachers have been encadred together, they have not been pla ced under the same class. We find great fallacy in the argument so advanced on b ehalf of the writ appellants inasmuch as Rule 3 reads as under: (cid:28)3. Classes and Cadres - (1) The service in provincialised school shall consist of the teaching and non-teaching staff. The teaching staff shall consist of the following classes and cadres- On the commencement of these, the strength of the service and the kind of posts therein shall be as mentioned in Schedule III appended to these Rules. (a) Class II (Senior) - It shall include the cadres of- (i) Principal, (ii) Vice-Principal, (iii)Post-Graduate Teacher, (iv) Head Master/Head Mistress/Superintendent: (b) Class II (Junior) - It shall include the cadres of- (i) Asstt. Head Master/Asstt. Head Mistress/Asstt. Superintendent, (ii) Graduate Teacher, Hindi Teacher having bachelor degree, Classical Teacher (Sanskrit/Arab ic, Assamese Language Teacher, (iii) Senior Classical Teacher without general degree, (iv) Junior Teacher/Junior Classical Teacher/Junior Hindi Teacher/Music Teacher, (v) Demonstrator (vi) Craft Teacher. (cid:29)

#30. A microscopic reading of Rule 3, as a whole, shows that ’Teachers’, whic h expression stands defined in Rule 2(v) of Rule 2003 Rules, stands encadred and , having been so encadred, they have been broadly divided into two classes, name ly, Class II (Senior) and Class II (Junior). While Class (II) Senior includes th e cadres of Principal, Vice-Principal, Post-Graduate Teacher, Head Master/Head M istress/Superintendent, Class (II) Junior includes cadres of Asstt. Head Master/ Asstt. Head Mistress/Asstt. Superintendent, Graduate Teacher, Hindi Teacher havi ng bachelor degree, Classical Teacher (Sanskrit/Arabic, Assamese Language Teache r, Senior Classical Teacher without general degree, Junior Teacher/Junior Classi cal Teacher/Junior Hindi Teacher/Music Teacher, Demonstrator and Craft Teacher. Coupled with the above, correctly pointed out by Mr. MR Pathak, learned 31. Standing Counsel, Education Department, that Schedule III(A) of 2003 Rules depic ts the Class and Cadre of holders of various posts. This Schedule clearly shows that Graduate Teachers fall under Class II (Junior) and, similarly, Demonstrator s fall within the ambit of Class II (Junior). There is, therefore, no shadow of doubt, in our mind, that in the face of the provisions of the Act of 1977 read w ith 2003 Rules, the seniority of a Demonstrator has to be counted by taking into account his service not merely from the date of provincialisation of his school , but from the date of his continuous appointment as Demonstrator. Logically, th erefore, the service, which a person had put in, as a Demonstrator, in a school, before the school came to be provincialised, must be counted for the purpose of determining his seniority in the same cadre in which stands placed a Graduate T eacher. Because of what have been discussed and pointed out above, we do not fin 32. d that the conclusion, reached in the judgment and order, dated 06-08-2011, in W P(C) No. 4538/2009, suffers from any infirmity, legal or factual. Resultantly, t herefore, the two letters, dated 30-09-2009 and 05-10-2009, which stood impugned in the said writ petition, have been rightly set aside and quashed and the orde r, dated 17-08-2011, passed in WP(C) No. 5769 of 2010, whereby the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, has been directed to determine the matter of seniority of the Graduate Teacher and D emonstrator in the light of the judgment and order, dated 06-08-2011, passed in WP(C) No. 4538/2009, by making a speaking order within a period of one month, is not illegal and/or unjust and does not, therefore, require interference by this Court.

#33. . 34. All these appeals, therefore, fail and shall accordingly stand dismissed No order as to costs.