High Court · 2012

Heard the learned counsel for the parties involved in this batch of writ petitions. Since the issue raised is one and the same, all the writ pet itions have been heard together and are being disposed of by this common judgeme nt and order.

2. For convenience the facts of W.P.(C) No. 4836/2011 have been considered. The petitioner involved in this writ petition is aggrieved by order dated 09.09 .2011 (Annexure-6) by which the Director of Secondary Education, Assam has allow ed the respondent No. 4 to hold the charge of Principal of the Higher Secondary School in question. According to the petitioner, he being senior to the responde nt No. 4, the charge of the Principal ought to have been given to him instead of giving the same to the respondent No. 4. In this connection, the petitioner has referred to Annexure-5 Gradation list prepared by the Principal of the school i n which the name of the petitioner appears at serial No. 2, while that of the r espondent No. 4 appears at serial No. 6.

3. While there is no dispute that as per the date of joining the service in the Graduate cadre the petitioner is senior to the respondent No. 4, the respon dent No. 4 and the official respondents have contended that since the cadre of P ost Graduate teacher is higher than that of the cadre of Graduate teacher, irres pective of the date of joining the service as Graduate teacher, the Post Graduat e teacher will score a march over the Graduate teacher in the matter of promotio n including holding the charge of higher post. In the counter affidavit filed by the official respondents through the D 4. irector of Secondary Education, Assam, it has been contended that since the Post Graduate teachers are in higher cadre than that of Graduate teachers, the said Post Graduate teacher will always rank senior to the Graduate teacher. In this c onnection, the Director of Secondary Education has referred to the speaking orde r dated 29.03.2011 passed by the Commissioner and Secretary to the Govt. of Assa m in the Education (Secondary) Department by which seniority in respect of two t eachers has been determined on the basis of the above analogy.

5. In all the writ petitions the issue raised is as to whether in view of t he provisions of Assam Secondary Education (Provincialised) Services Rules, 2003 , irrespective of the cadre to which the incumbents belong to, i.e. the Post Gra duate teacher and the Graduate teacher, their seniority would be determined on t he basis of the length of service.

6. Rule 12 of the said Rules of 2003 dealing with recruitment of Principal in Higher Secondary /Higher Secondary & Multipurpose School and qualification t hereof has provided that the post of Principal shall be filled up from amongst t he candidates having at least 15 years teaching experience as Post Graduate teac her and 17 years teaching experience as Graduate teacher. Thus the feeder cadres for promotion to the post of Principal have been identified as the common cadre of Post Graduate Teacher and Graduate teacher, meaning thereby that the teacher s belonging to the both cadres are eligible for promotion to the post of Princip al subject to fulfilment of minimum educational qualification and requirement of respective length of service which is 15 years and 17 years.

7. In view of the above provision it is the plea of the Graduate teachers t hat since the teachers belonging to both the cadres are eligible for the post of Principal, while giving the charge of Principal the Graduate teacher cannot be discriminated on the ground that the Post Graduate teacher is a higher cadre.

8. The above aspect of the matter has been dealt with by the Govt. of Assam in the Education (Secondary) Department by passing a speaking order dated 28.02 .2012. Mr. U.K. Goswami, learned SC, Education Department submits that in view o f the said order dated 28.02.2012, the issue raised in all the writ petitions ha s now been settled. For a ready reference, the said order dated 28.02.2012 is qu oted below: (cid:28)GOVERNMENT OF ASSAM EDUCATION (SECONDARY) DEPARTMENT, DISPUR, GUWAHATI-06 No. ASE 157/2011/85 Dated Dispur the 28th February, 2012 ORDERS Read : Order passed by the then Commissioner and Secretary, Education (Sec) D epartment, vide No. ASE. 157/2011/49 dated 29th March, 2011 and No. ASE 481/2009 /58 dated 27th September, 2011. Read also: Report submitted by the Director of Secondary Education, Assam vide letter No. DSE/Court Cell/2/2011/26 dated 2nd Fe bruary, 2012 Findings: It appears that in the order passed by the then Commissioner and Secretary, Education (Sec) Department vide No. ASE 157/201 1/49 dated 29th March, 2011 it has been held that a Post Graduate Teacher who be longs to Grade-II is senior to a Graduate Teacher who belongs to Grade-II as per provision of the Assam Secondary Education (Provincialised) Service Rules, 2003 and accordingly, a Post Graduate Teacher deserves preferential treatment for ho lding a higher post of Principal of the Igher Secondary School either on in-char ge or regular basis. The aforesaid speaking order goes against the provisions of Rule 12 (d) of the Assam Secondary Education (Provincialised) Service Rules, 20 03 wherein it has been provided the provision of selection Principal from amongs t the Post Graduate Teacher having teaching experience for 15 years and the Grad uate Teachers having teaching experience for 17 years. Consequently, this order has deprived the deserving Graduate Teachers from their legitimate due. Order: After careful examination of all other aspects, the Governor of Assam is pleased to decide that the existing provisions under ru le 12(d) of the Assam Secondary Education (Provincialised) Service Rules, 2003 f or selection of Principal of the Higher Secondary School either on in-charge or regular basis shall continue to be in force and orders accordingly. This shall come into force with immediate effect. Secretary to the Govt. of Assam Education (Secondary) Department Sd/- Dated Dispur the 28th February, 2012 (cid:29) By the aforesaid order it has been held that as per the provision of Rul 9. e 12(d) of the Assam Secondary Education (Provincialised) Services Rules, 2003, for selection of Principal of Higher Secondary Schools either on in-charge or re gular basis, the teachers belonging to both the cadres shall be eligible. Thus t he earlier distinction made between the teachers belonging to said two cadres, i .e. the Post Graduate teacher and Graduate teacher, has been done away with. In other words, the teachers belonging to both the cadres have been treated at per for the purpose of promotion to the post of Principal either temporary or regula r basis. 10. Since by the said order dated 28.02.2012 the grievance raised by the pet itioners involved in this batch of writ petitions has been redressed, all the wr it petitions stand disposed of in terms of the said order. Consequently, the im pugned orders by which irrespective of seniority, the Post Graduate teacher have been given the charge of Principal, stand set aside and quashed. The respondent s shall take necessary follow up action in terms of the their own order dated 28 .02.2012 as quoted above.

11. At this stage, learned counsel for the parties submit that the process f or regular selection of Principal/Headmaster may now be initiated by the respond ents in accordance with law. Needless to say that it is always advisable to appo int Principal/Headmaster on regular basis instead of managing the affairs on adh ocism. The respondents may do the needful in this regard.

12. All the writ petitions are disposed of.