Kanak Chandra Nath v. State of Assam and others). By the said judgement while upholding the particular
Case Details
WP(C) 2196/2012 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. B.K. Bhattacherjee, learned counsel for the petitioner. Also heard Mr. J. Abedin, learned Standing Counsel, Education Department. I have also heard Mr
Legal Reasoning
. P.K. Tiwari, learned counsel representing the respondent No. 4. By means of this writ petition, the petitioner has prayed for a directio n to the respondents to restore the position as was prevalent prior to passing o f the impugned order dated 15/3/2012, by which the respondent No 4 has been prom oted to the post of Head Master of Haribhanga High School in the district of Nal bari. Prior to passing of the impugned order dated 15/3/2012, the petitioner was holding the charge of the Head Master of the said School. However, on the basis of the selection of the respondent No. 4 for promotion to the post of Head Mast er, he had been promoted by the impugned order dated 15/3/2012. According to the petitioner, he being senior to the respondent No. 4, that should have been a re levant consideration towards granting him regular promotion instead of promoting the respondent No.4. In this connection, the petitioner has placed reliance on the Division Bench judgement dated 31/01/2012 passed in a batch of writ petition s, the first one being WP(C) No. 71/2012 (Kanak Chandra Nath Vs. State of Assam and others). By the said judgement while upholding the particular provision in t he Assam Secondary Education (Provincialisation) Service Rules 2003, requiring B T/B.Ed degree for being promoted to the post of Head Master, the following obser vations have been made :- (cid:28)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 m ay be found or eligible candidate found may be at the bottom of seniority, but t here is nothing to show that such a situation is arising in number of cases. Suc h a case may be an isolated one, which can be taken care of by a separate mechan ism. Absence of the said qualification for the post of Principal is also no grou nd for declaring the Rule to be irrational. Qualifications and method of recruit ment for the posts is different. We, thus, do not find any ground to interfere w ith the laying down of qualification for BT/B.Ed degree for promotion to the pos t of Headmaster. Question of validity of qualifications for the posts of teache rs laid down under the NCTE Act and Rules does not arise for consideration as ap pointments in question are not to the posts of teachers. The said question need not be gone into. 17. However, it is advisable that the Department works out appropria te mechanism to deal with situations where there is no candidate with the qualif ication of B.Ed/BT or candidate available is junior so that the schools do not s uffer. Such a mechanism may be worked out and notified within three months from today. We will also suggest that the Education Department may constitute a commi ttee of experts to review the existing qualification within one month from today which may give its report in next two months. The State may take such further a ction thereafter as may be found appropriate. It is made clear that such an exer cise will be no bar to appointments being made earlier, if considered necessary. (cid:29) The petitioner referring to the aforesaid observations of the Division B ench judgement has contended that the respondent No.4 could not have been promot ed before working out the particular exercise as was directed by the Division Be nch in the aforesaid judgement. However, the fact of the matter is that as per t he aforesaid rules, the respondent No.4 is eligible for promotion to the post of Head Master while the petitioner is not. The respondent No. 4 being B.Ed degree holder, he was considered for promotion by the selection committee and in the s election he was selected and recommended for promotion to the post of Head Maste r. It was pursuant to such selection, he was appointed as Head Master of the Sch ool on 15/3/2012. It will be pertinent to mention here that the recommendation m ade by the selection committee was approved by the Govt. of Assam in the Educati on Department on 7/7/2011. The writ petition was filed thereafter on 26/4/2012. The petitioner being not eligible for consideration for promotion being not qualified, his case was not considered by the selection committee. Now, only on the ground of seniority, he has filed the instant writ petition to consider his promotion in terms of the aforesaid observations made by the Division Bench in its judgement dated 31/01/2012. In the counter affidavit filed by the respondents, both official and pri vate, the aforesaid plea of the petitioner has been denied. It has been stated t hat since the petitioner was not eligible for consideration as per the prevalent rules of 2003, his case could not be considered by the selection committee but on the other hand, the respondent No. 4 was recommended for promotion. The afore said observations made in the Division Bench judgement will have to be read and understood in the context of the challenge to the requirement of BT/B.Ed degree which was negated by the said judgement. While upholding the requirement of BT/B . Ed degree as per the aforesaid Rules of 2003, the Division Bench made the abov e quoted observation to deal with the particular situation, which is not the sit uation in the present case. Once the Division Bench has upheld the requirement of BT/B.Ed degree as per the prevalent Rules of 2003, the petitioner cannot challenge the appointment / promotion of the respondent No. 4 falling back on the particular observation made in the aforesaid judgement, which was in the context of dealing with the pa rticular situation where there is no candidate with the qualification of BT/B. E d degree or the candidates were much junior to the petitioner. Same being not th e situation in the instant case, the aforesaid observation made by the Division Bench cannot render any help to the case of the petitioner.
Decision
For all the aforesaid reason, I not find any merit in the writ petition and accordingly it is dismissed, without however, any order as to costs.