High Court · 2012

3. By the advertisement dated 2.11.2010 (Annexure-C to the writ petition) a pplications were invited from eligible candidates for posts of Principals, Vice Principals, Headmasters/ Superintendents and Assistant Headmasters/Assistant Sup erintendents as per qualifications laid down therein and the 2003 Rules. Issue r aised in the writ petitions is limited only to the promotion to the post of Head masters governed by Rule 14.

4. The Assam Secondary Education (Provincialisation) Act, 1977, regulates c onditions for recruitment for appointment of teachers in High and Higher Seconda ry Schools read with 2003 Rules. Rule 14(2) deals with promotion to the post of Headmaster is based on school-wise seniority list. Eligibility is laid down in s ub-Rule (4) as follows : (cid:28)Rule 14(4): nt /Assistant Headmaster/ Assistant Superintendent of High/High Madrassa Schools Eligibility of the post of Headmaster/ Headmistress/Superintende as the case may be : (i) The minimum qualification for the post of Headmaster/ Headmistress/Super intendent /Assistant Headmaster/ Assistant Superintendent shall be Graduate in A rts, Science or Commerce with BT or B.Ed degree. (ii) He/she must possess at least 10 years of teaching experience as Graduate Teacher. He/she must possess at least 7 years of teaching experience as Graduate (iii) Teachers to be an Assistant Headmaster/Headmistress/Assistant Superintendent. (cid:29) Grievance of the petitioners is that BT/B.Ed degree could not be made essential qualification for the post of Headmaster for the following reasons : (i) The feeder cadre for the post of Headmaster is the graduate teac her and their qualification as per Schedule-I to the 2003 Rules is graduation wi th weightage for having B.Ed./M.Ed. degree. Thus, even without B.Ed/M.Ed degree a person can be appointed graduate teacher. (ii) Rule 12(d) prescribes qualification for appointment to the post of Principal of Higher Secondary Schools which is a higher post and under the sa id Rule there is no requirement to have BT/B.Ed degree. (iii) There are schools where there is no B.Ed/BT degree holders, stil l the requirement is made applicable, making it impossible to fill up the post o f Headmaster.

5. No reply has been filed on merits even though the writ petition was admi tted on 11.02.2011 and time was again granted for filing reply on 26.08.2011. Ho wever, an affidavit has been filed by the Director of Secondary Education of the State of Assam stating that State Selection Board was constituted on 25.10.2010 and thereafter the impugned advertisement was issued. Thereafter select lists w ere submitted and on that basis the appointing authority published the list of 7 92 Headmasters/Superintendent on 02.08.2011 and appointment letters dated 05.08. 2011 were issued. Thereafter, on 27.09.2011 appointment letters were issued to 8 8 more candidates.

6. An application has been filed for intervention by 52 applicants (MC 3559 /2011) who are B.Ed/BT degree holders stating that they could not be appointed o n account of stay order granted in different proceedings and thus they were enti tled to be heard. The application was ordered to be heard with the main case. No stay was granted though appointments were made subject to the decision of the w rit petitions.

7. We have heard learned counsel for the parties.

8. Mr. B. C. Das, learned Senior Counsel, appearing for the petitioners in WP(C) No.765/2011, submitted that though educational qualification may be a basi s for classification but the same must be rational having nexus with the object for which the qualification was laid down. If the qualification laid down was ar bitrary, the same will be violative of Article 14 of the Constitution. He placed reliance on the following judgments : (1975)3 SCC 76, Md. Sujat Ali & ors vs. Union of India and others. (1998)7 SCC 676, Food Corporation of India vs. Om Prakash Sharma and oth

1. 2. ers [paras 4,19, 32 and 33]. 3. (1995)1 SCC 519, State of T.N. vs. Ananthi Ammal and others [paras 7, 17 and 20]. He submitted that B.Ed/BT qualification had no rational as the said qualificatio n was not laid down for the post of teachers which was the feeder cadre and the said qualification was also not required for the post of Principal which was a h igher post. He submitted that for want of the said qualification, in certain sch ools no Headmaster may be appointed and in certain schools juniormost teachers h ave become Headmaster which may not be a desirable situation. Mr. Giash Uddin, learned counsel, appearing in WP(C) No.5566 of 2011, ad 9. opted the submissions of Mr. Das, learned Senior Counsel, and further submitted that when at the time of appointment as teacher, the qualification for promotion to the post of Headmaster did not include B.Ed/BT degree, the said qualificatio n could not be introduced later as it will amount to withdrawing the benefit alr eady acquired by the candidate in violation of principle laid down in the follow ing judgments : 1. s. 2. . 3. thers. 4. (1990)1 SCC 411, P. Mahendran & others vs. State of Karnataka and others (1984)3 SCC 281, Ex-Capt. K.C.Arora & another vs. State of Haryana and o (1986) Supple SCC 584, T.R.Kapur & others vs. State of Haryana and other (1997)3 SCC 641, R.S. Ajara & others vs. State of Gujrat and others.

10. Mr. S. K. Talukdar, learned counsel appearing in WP(C) Nos.71/2012 and 7 3/2012, also adopted the above submissions and further submitted that laying dow n of qualification of BT/B.Ed for teachers under the National Council for Teache r Education (Determination of Minimum Qualifications for Recruitment of Teachers in Schools) (Amendment) Regulations, 2003, was ultra vires the National Council for Teacher Education Act, 1993 (NCTE Act), as the said Act dealt with the teac her education only and not with the school education. Reliance was placed on jud gment of the Hon’ble Supreme Court in (2008)3 SCC 432, Basic Education Board, U. P. vs. Upendra Rai and others [para 19]

11. Opposing the above submissions learned counsel for the Education Departm ent, Mr. A. Deka, submitted that the petitioners did not participate in the sele ction process as they did not have the requisite qualification and thus they cou ld not maintain the writ petitions. He also submitted that qualifications for th e post of Principal were separately laid down and the post was to be filled up b y direct recruitment and not by promotion. Though B.Ed/BT degree was not prescri bed for the post of Principal, post graduation was required which was not the qu alification for the post of Headmaster. Thus, both the posts are different and different qualifications are laid down for the said posts. There was no parity i n the said two posts.

12. Mr. P. K. Tiwari, learned counsel appearing for the interveners, who wer e holding B.Ed/BT degree but could not be appointed on account of stay orders in various other proceedings, submitted that the Rule was a condition of service a nd promotion was governed by applicable condition of service which could be chan ged from time to time. Higher qualification could be laid down for promotion and the same could not be held to be irrational. In schools where there was no B.Ed /BT degree holder available, the State could be directed to relax the qualificat ion or prescribe some other mechanism. He placed reliance on the following judgm ents : 1. 2. AIR 1967 SC 1889, Roshal Lal Tandon vs. Union of India [para 6]. (1999)3 SCC 653, State of Jammu & Kashmir vs. Shiv Ram Sharma and others [para 6]. AIR 1974 SC 1, State of J. & K. vs. Shri Triloki Nath Khosa and others [

3. para 40A). 4. on vs. Rajasthan State Electricity Board and another [para 9]. 5. s. 6. (1975) Supp(1) SCC 349, D.K.Jain vs. State of Haryana and others. (1997)3 SCC 103, Rajasthan State Electricity Board Accountants Associati (1993)2 SCC 340, P. Murugesan & others vs. State of Tamil Nadu and other

13. Question for determination is whether the Rule prescribing qualification of B.Ed/BT degree for promotion to the post of Headmaster was irrational as sai d qualification was not laid down for the post of teacher which was a feeder cad re or for the Principal which was a higher post and was liable to be struck down on that ground?

14. In our view, the answer has to be in the negative.

15. It is well settled that qualification for promotion can be laid down by the appointing authority and higher qualification can be the basis for classific ation. There is no conflict in various judgments relied upon by learned counsel for the parties on the issue. We do not, therefore, consider it necessary to mak e detailed references thereto.

16. Requirement of BT/B.Ed degree in the context of school education cannot be held to be irrational. No doubt, absence of such requirement for the post in the feeder cadre may create a situation in which no eligible candidate may be fo und or eligible candidate found may be at the bottom of seniority, but there is nothing to show that such a situation is arising in number of cases. Such a case may be an isolated one, which can be taken care of by a separate mechanism. Abs ence of the said qualification for the post of Principal is also no ground for d eclaring the Rule to be irrational. Qualifications and method of recruitment for the posts is different. We, thus, do not find any ground to interfere with the laying down of qualification for BT/B.Ed degree for promotion to the post of Hea dmaster. Question of validity of qualifications for the posts of teachers laid down under the NCTE Act and Rules does not arise for consideration as appointmen ts in question are not to the posts of teachers. The said question need not be g one into.

17. However, it is advisable that the Department works out appropriate mecha nism to deal with situations where there is no candidate with the qualification of B.Ed/BT or candidate available is junior so that the schools do not suffer. S uch a mechanism may be worked out and notified within three months from today. W e will also suggest that the Education Department may constitute a committee of experts to review the existing qualification within one month from today which m ay give its report in next two months. The State may take such further action th ereafter as may be found appropriate. It is made clear that such an exercise wil l be no bar to appointments being made earlier, if considered necessary.

18. The writ petitions will stand disposed of accordingly.