Judgment · High Court · 2012

Judgment and Order (Oral) Amitava Roy, J In challenge is the judgment and order dated 01.02.2012, passed in MC No. 2562/2 011 arising out of WP(C) No. 4079/2011, thereby, vacating the interim order date d 12.08.2011, thus dislodging the writ appellant’s incumbency as In-charge Headm aster of the Lakshmi Union High School, Jorhat (hereinafter referred to as the S chool).

#02. We have heard Mr. AS Choudhury, Senior Advocate assisted by Mr. IH Saikia, Advocate for the petitioner and Mr. A Deka, learned Standing Counsel, Education Department, Assam for the respondent Nos.1 to 4. Also heard Mr. SK Me dhi, learned counsel for the respondent No. 5. The facts in bare essential are that in response to the advertis 03. ement dated 02.11.2010 issued by the Director of Secondary Education, Assam-cum- Member Secretary, State Selection Board, Assam for filling up, amongst others, o f the post of Headmaster of the School, the parties in the fray offered their ca ndidature. Admittedly, as on date, the appellant/writ petitioner was not possess ed of BT/B.Ed. degree as prescribed to be a condition of eligibility by Rule 14 of the Assam Secondary Education (Provincialised) Service Rules, 2003 (for short hereafter referred to as the 2003 Rules) for the said post. In that view of the matter, the appellant/writ petitioner was not allowed to participate in the sel ection process, on the culmination whereof, the respondent No. 5 herein along wi th others were recommended for appointment to the corresponding posts. She was, accordingly, appointed as Headmistress of the School by order dated 19.07.2011 o f the Director of Secondary Education, Assam. Meanwhile, however, as a stop gap arrangement, the appellant/writ petitioner had been allowed to hold the charge o f the said office pending regular appointment thereto. As, inspite of her select ion, the respondent No. 5 was not allowed to join or assume charge of the office , she submitted her joining report in the office of the Inspector of Schools. Situated thus, the appellant/writ petitioner approached this Court with WP(C) No .4079/2011, questioning, inter alia the validity of the advertisement dated 02.1 1.2010 and also the appointment of the respondent No. 5 as regular Headmaster of the School. His chief contention was that having regard to the date of occurren ce of the vacancy in the said office i.e. 31.03.2002, the 2003 Rules was not app licable and instead the process of filling up the same ought to have governed by the Assam Secondary Education (Provincialised) Service Rules, 1982 (hereinafter referred to as the 1982 Rules). According to him, as BT/B.Ed. was not an essent ial condition of eligibility under the 1982 Rules, the decision to exclude him f rom the selection process was apparently illegal and arbitrary vitiating the sam e. He, therefore, consequently pleaded invalidity of the selection process initi ated by the advertisement prescribing the aforementioned norm of eligibility as well as the selection and appointment of the respondent No. 5.

#04. As mentioned hereinabove, this Court while, by order dated 12.08 .2011, in the interim, directed that the functioning of the appellant/writ petit ioner as Headmaster of the School would not be discontinued without its leave, t he respondent No. 5 after entering appearance in the writ proceedings, she filed an interim application (registered as MC No. 2562/2011), seeking vacation and/o r modification of this order. After hearing the learned counsel for the parties, by the order impugned herein, the interim protection has been recalled.

#05. Reiterating the pleaded stand of the appellant/writ petitioner v is-a-vis the process and appointment of the respondent No. 5, Mr. Choudhury, has urged that as the appellant has been arbitrarily disqualified by resorting to R ules, 2003, which has no application to the selection process, in the interest o f justice, he ought to be allowed to hold the charge of the office of the Headma ster of the School pending final adjudication of the writ proceedings. As on rec ord, the appellant is senior in service to the respondent No. 5 by a margin of a bout 20 years in the facts and circumstances of the case, his deposition from th e office of the Headmaster of the School in the manner done is obviously illegal and discriminatory.

#06. Mr. Deka, has argued, in reply that not only the provision of th e 2003 Rules are applicable to the selection process, even assuming that it is n ot so, as the appellant/writ petitioner is sans BT/B.Ed. degree, the respondent No. 5 is entitled to a weightage of preference as contemplated under the 1982 Ru les and in that view of the matter as well, the latter’s selection is unassailab le in law and on facts.

#07. Endorsing the above stand, Mr. Medhi, has argued that meanwhile the respondent No. 5 has taken over the charge of the office of the Headmaster o f the School even before the interim order of status quo had been passed in the instant appeal on 04.02.2002. In support of his plea, Mr. Medhi has produced a c opy of the order dated 03.02.2012 of the Director of Secondary Education, Assam allowing the respondent No.5 to hold the charge of the office involved with imme diate effect. A communication dated 04.02.2012 of the respondent No. 5 in the ca pacity of the Headmistress of the School and addressed to the Inspector of Schoo ls (I/C), JDC, Jorhat affirming the above, has also been laid before this Court. A hand note of one Jeena etc., Assistant Teacher of the School indicating the h anding the office materials including the keys to the respondent No. 5 in endors ement of the above change over, has also been produced.

#08. We have taken note of the pleaded facts to the extent necessary and have also extended our consideration to the arguments advanced. The learned Single Judge, while vacating the interim order had taken note of the judgment an d order dated 31.01.2012, passed by a Division Bench of this Court in WP(C) No. 765/2011, sustaining the prescription of BT/B.Ed. as one of the essential condit ions of eligibility vide the 2003 Rules. It was held as well that even under the 1982 Rules preference was available to candidates possessing BT/B.Ed. degree an d in that view of the matter, the appellant/writ petitioner could not have score d a march over the respondent No. 5 in such a selection as well. Observing that the appointment of the respondent No. 5 has been in a selection regularly conduc ted under the 2003 Rules and that therefore, she should be allowed to hold the p ost of Headmistress of the School, the interim restraint was vacated.

#09. On a totality of the facts recited hereinabove and bearing in mi nd, in particular, the assumption of the office involved by the respondent No. 5 meanwhile, we are of the view that no interference with the impugned judgment a nd order is warranted. This is more so as the adjudication of the writ petition on merit is pending. It has been submitted at the Bar that the issue pertaining to the applicability or otherwise of the 2003 Rules qua the vacancies arising be fore the enforcement thereof is subjudice in a batch of writ petitions listed fo r final hearing on 20.02.2012. The contention to this effect as raised by the ap pellant/writ petitioner can thus be very well analysed in details if the WP(C) N o. 4079/2011 is analogously heard therewith.

#10. Having regard to the limited challenge in the appeal, in the abo ve factual premise, we are disinclined to interfere. The appeal lacks in substan ce and is dismissed. The learned Single Judge is requested to decide the writ pe tition on merit without being in any way influenced by the present determination . No costs.