High Court · 2012

As could be gathered from the pleadings raised in the writ petition, acc 2. ording to the petitioners there is need and justification to increase the promot ional quota upto 50% from the existing 25% as provided for under Rule 5(3) of th e Assam Education Service Rules, 1982. It has been contend that the members of t he Assam Education Service (Class-I) Officers Association has been praying for n ecessary amendment of the said Rules of 1982 for enhancement of promotional quot a in the cadre of Deputy Director of Public Instruction/Inspector of Schools. It has further been contended that since there is proposal to amend the Rules towa rds increasing of quota, pending consideration of finalization of such proposal, the respondents ought not to have and could not have issue the impugned adverti sement No. 10/11 proposing to fill up 16 posts of Deputy Director/Inspector of S chools by way of direct recruitment.

3. I have heard Mr. S.S. Dey, learned Sr. Counsel, assisted by Ms. D. Borgo hain, learned counsel for the petitioners. I have also heard Mr. A.D. Choudhury, learned Standing Counsel, Education Department. Advancing an altogether differe nt argument then the pleaded case of the petitioners, Mr. Dey, learned counsel f or the petitioners submits that when provisions of the aforesaid 1982 Rules do n ot provide for any direct recruitment to the post of Inspector of Schools from t he open market, the respondents could not have issued the advertisement proposin g to fill up the posts of Deputy Director/Inspector of Schools through open comp etition to be conducted by the APSC. Being confronted with the queries made by t he Court as to how the petitioner can take altogether different stand during the course of argument than what has been pleaded in the writ petition, Mr. Dey, le arned counsel for the petitioners submits that since the question raised is esse ntially a legal question, the Court will not non-suit the petitioner on that cou nt.

4. Mr. Choudhury, learned Standing Counsel, Education Department, referring to the pleaded case of the petitioners, which is enhancement of prescribed quot a for promotion (25% to 50%) submits that the petitioner cannot be permitted to argue altogether a different case than what has been pleaded in the writ petitio n.

5. Mr. Dey, learned counsel for the petitioners to bring home his point of argument has referred to certain provisions of the aforesaid Rules of 1982, whic h includes Rule 2(g); Rule 3; Rule 5; Rule 6; Rule 8; Rule 12 and finally Schedu le-I and II to the said Rules. According to him reading together the said provis ions, there is no mandate in the said Rules to fill up the post of Deputy Direct or/Inspector of Schools by way of direct recruitment form open market. According to him, both the quotas i.e. 75% by direct recruitment and 25% by promotion are required to be filled up from amongst the Assistant Inspector of Schools.

6. Rule 5 prescribing the method of recruitment both by direct recruitment and promotion to various cadres, also prescribes recruitment to the cadre of Ins pector of Schools 75% by direct recruitment and 25% by promotion. For a ready re ference, Rule 5(3)(a) is quoted below: (cid:28)5. (3) (a) by direct recruitment upto 75% with qualification prescribed under R .8 in the cadre of Dy. Director and by promotion upto 25% in the cadre of Dy. Di rector from the select list of Assistant Inspector, Assistant Inspectress of Sch ools and Assistant Directors, Vocational Guidance and Assistant Directors, Plann ing and Co-ordination having five years experience in the post of possessing at least Second Class Masters Degree (cid:29) According to Mr. Dey, learned counsel for the petitioner, the aforesaid 7. direct recruitment upto 75% with qualification prescribed under Rule 8 in the ca dre of Deputy Director and promotion upto 25% in the cadre of Inspector of Schoo ls are required to be made from the select list of Assistant Inspector of School s who possess the requisite qualification. According to him had the intention of the legislature being otherwise it would have been made clear in the Rule as ha s been done in the case of appointment to the post of Assistant Inspector of Sch ools. He further submits that if the provisions of Rule 6, 8 and 12 and Schedule I and II are read together, it will be clear that there is no room for direct r ecruitment by inviting application from the open market.

8. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also gone through the entire materials on record. Appreciating the same, my conclusions are as follows:

9. As noted above, the whole basis of the case of the petitioners involved in these two writ petitions is the proposed amendment to the Rule to extend the quota of promotion to the post of Inspector of Schools from 25% to 50%. Accordin g to them, unless and until necessary amendments to the aforesaid Rules of 1982 enhancing the promotion quota are brought to the rules, the respondents cannot t ake recourse to the mode of direct recruitment, as is sought to be done through the impugned advertisement. In addition to the prayer for direction to the respo ndents to bring necessary amendments to the Rules enhancing the quota of promoti on, further prayer made in the writ petition being WP(C) No. 6135/2011 to set as ide and quash the advertisement, by which process of direct recruitment has been initiated.

10. Needless to say that a process for recruitment cannot be allowed to be s talled on the ground that there is proposal for amendment of the Rules. As to wh ether the proposed amendment would come to reality or not is not known at this s tage. Even assuming that proposed amendment of the Rule would be materialized en hancing the prescribed quota of promotion to 50% from 25%, same will have only p rospective application. The Writ Court exercising its power of judicial review u nder Article 226 of the Constitution of India cannot act on presumption, more pa rticularly when the rules as it stands today, prescribes only 25% quota for prom otion.

11. The second ground that has been raised by Mr. Dey, learned counsel for t he petitioner is that irrespective of the pleaded case of the petitioners, since the question of law has been raised in reference to the aforesaid provisions of 1982 Rules, this Court is required to answer the said question of law. As per the own understanding of the petitioners the provisions of 1982 R 12. ules provide for direct recruitment (75%) and promotion (25%) to the cadre of In spector of Schools. Mr. Dey, learned counsel for the petitioners has argued in r eference to Rule 5(3) of the Rules that although the quota of direct recruitment (75%) and promotion (25%) are mentioned in the rules, but they are meant only f or Assistant Inspector of Schools and the quota of 75% (direct recruitment) cann ot be filled up by open competition.

13. Rule 5 (1) of the said Rules, prescribes the method of recruitment to th e post of DPI etc. which is by way of direct recruitment. On the other hand the post of Additional Director etc. is to be filled up by way of promotion in the m anner prescribed in the Rule 11. Rule 5 (3) makes the provision for recruitment to all other posts inclusive of the post of Inspector of Schools. As per Rule 5( 2) (a) 75% of the said post is required to be filled up by direct recruitment an d 25% by promotion. What Mr. Dey, learned counsel for the petitioner has contend ed is that the expression (cid:28)by direct recruitment upto 75% with qualification pre scribed under Rule 8 in the cadre of Deputy Director and by promotion upto 25% i n the cadre of Deputy Director from the select list of Assistant Inspector (cid:29) is t o be read conjointly and reading in that manner, it will appear that both the qu otas i.e. 75% and 25% are meant only for the Assistant Inspector of Schools and thus in any selection involving direct recruitment and promotion, the selection must confine only to the Assistant Inspector of Schools. I am afraid such an arg ument cannot be accepted for the simple reason that Rule 5(3) clearly prescribes that 75% of the posts of Inspector of Schools shall be filled up by direct recr uitment and remaining 25% by promotion. The whole fallacy is in the manner in wh ich the aforesaid expression has been read. The said expression has been read to gether so as to club both direct recruitment and promotion together towards conf ining only the Assistant Inspector of Schools for consideration against both the quotas.

14. Merely because the post of Assistant Inspector of Schools for which Rule 3 (b) specifically provides for examination to be conducted by the Commission, but in the case of Inspector of Schools, no such expression finds mention in Rul e 3(a), it can be said that 75% quota prescribed for direct recruitment is to be confined only to Assistant Inspector of Schools. This position will be clear on a reading of Schedule II of the Rules, prescribed under Rule 8, 5 (1). Clause-3 to Schedule II prescribes the qualification for recruitment to the post of Insp ector of Schools, which reads as follows: (cid:28)3. Inspector/Inspectress of Schools and Deputy D.P.I. Second Class Master Degre e having uniformly brilliant career and possessing teaching experience in school s and colleges for ten years or administrative experience for at least 10 years of which 5 years must be in teaching. (cid:29)

15. The aforesaid Clause 3 of Schedule II does not indicate that the post of Inspector of Schools is to be filled up only from amongst the Assistant Inspect or of Schools. Had it been the intention, the minimum requirement of service in the cadre of Assistant Inspector of Schools etc. would have prescribed in the sa id clause. Not to speak of any such prescription, there is not even any whisper of the post of Assistant Inspector of Schools in Clause 3 of Schedule II.

16. On being queried, the learned counsel for the Education Department has s ubmitted that since the inception of the 1982 Rules, the posts of Inspector of S chool have all along been filled up 75% by direct recruitment and 25% by promoti on. This settled position cannot be altered at the instance of the petitioners a nd that too on the basis of the pleadings raised in the writ petition about whic h discussions have been made above.

17. ions and accordingly both the writ petitions are dismissed. For all the aforesaid reasons, I do not find any merit in the writ petit