PROTIVA DEVI Vs. STATE OF ASSAM

JUDGEMENT

(1.) The vires of the Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 (hereinafter referred as " the Rules of 2003 ") has been questioned by the petitioner in the present writ petition. The petitioner was initially appointed as a Graduate Teacher in C.S. Rawanapur Higher Secondary School, Majuli by an order dtd. 12/10/1988 issued by the Inspector of Schools, Jorhat District Circle. By order dtd. 16/6/1994 issued by the Director of Secondary Education, Assam, she was transferred from C.S. Rawanapur Higher Secondary School, Majuli to Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. She was also appointed as In-charge, Headmistress of the Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat vide the order dtd. 26/4/2016 issued by the Director of Secondary Education, Assam upon the post falling vacant due to the retirement of the previous incumbent. During the relevant period of time in response to an advertisement issued by the concerned authorities in the year 2015, she applied for and was selected as the Assistant Headmistress of the School. In terms of the said selection by order dtd. 5/8/2017, the petitioner was promoted to the post of Assistant Headmistress of Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. Although she was appointed as the Assistant Headmistress and had joined in a substantive post, she continued to also discharge her services as the In-charge, Headmistress of the said school since 1/5/2016.

(2.) The Department of Secondary Education, Government of Assam advertised the post of Headmaster along with other posts lying vacant including those which are likely to fall vacant by 31/12/2017. In response to the said advertisement, the petitioner as well as respondent No. 5 applied for the post of Headmistress of Sarojini Devi Ucchal Balika Bidyalaya, Chengeligaon, Jorhat. In the selection pursuant to the said advertisement, respondent No. 5 was selected for the post of Headmistress in Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat. Being aggrieved, the present writ petition has been filed challenging the validity of Rule 14(2) of the Assam Secondary Education (Provinci-alisation) Service Rules, 2003 as well as praying for consequential order for setting aside the impugned selection of the respondent No. 5 and also for setting aside the order dtd. 9/12/2019 issued by the Department of Secondary Education, Assam promoting the respondent No. 5 as the Headmistress of Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat in place of the writ petitioner.

(3.) The learned counsel for the petitioner submits that under the Rules of 2003, the post of Headmaster is included in the cadre of Class-II (Senior) and the post of Assistant Headmaster is included in the cadre Class-II (Junior) under the Rules. The post of Graduate Teacher is also included in the cadre of Class-II (Junior). The learned counsel for the petitioner submits that the provisions for recruitment to the post of Headmaster/ Assistant Headmaster interalia is prescribed under Rule 14 of the Rules of 2003. He strenuously submits that although under Rule 14(2), it is prescribed that the post of Headmaster shall be filled upon by promotion from school wise seniority list on the recommendation of the State Selection Board, Assam and the selection of the incumbent shall be based upon seniority and satisfactory ACR for the three (3) consecutive years, but it is also provided that the seniority shall be determined from the date of receiving the Graduate Scale as per Rule 24(2). The learned counsel for the petitioner submits that it is this provision for deciding the seniority on the basis of receiving Graduate Scale which is opposed to the scheme of the Rules and more particularly the class and cadre specified under the Rules. As such to the extent the Rule provides for deciding the seniority on the basis of receipt of Graduate Scale of Pay as per Rule 24(2), the instant Rule i.e. Rule 14(2) is violative of Article 14 of the Constitution of India as it has the effect of treating two different posts in the cadre to be equal for the purposes of being feeder posts for promotion to the post of Head Master of the School. According to the learned counsel for the petitioner, the respondent No. 5 was not eligible for the selection to the post of Head Master for the years 2014, 2015 and 2016 as she did not fulfill the eligibility criteria because she did not acquire the requisite qualification of B.Ed Degree. On the contrary, the petitioner had all the requisite qualifications. She was a Master Degree Holder as well as B.Ed Degree holder and consequently she was selected for promotion to the post of Assistant Headmistress in the year 2017. The petitioner having been promoted to the post of Assistant Headmistress with effect from 05/8/2017, her seniority and the seniority of respondent No. 5 cannot be equated. The learned counsel for the petitioner urged that the seniority in terms of receipt of the Graduate Scale can only be used as a yardstick to decide the seniority, provided the incumbents are holding the similar posts. The post of Assistant Headmistress is a higher post drawing a higher salary and the incumbent is also required to perform the higher responsibilities. Therefore, the determination of seniority from the date of receipt of Graduate Scale as prescribed under Rule 14(2) has the effect of treating two unequal persons as equal and therefore it offends the scheme of Article 14 of the Constitution of India. The learned counsel also submits that as the petitioner was transferred from C.S. Rawanapur Higher Secondary School, Majuli to Sarojini Devi Uccha Balika Bidyalaya, Chengeligaon, Jorhat, her seniority in respect of the earlier school has not been counted as well. The learned counsel for the petitioner therefore submits that the Rule 14(2) in so far as it decides the seniority between the incumbent from the date of receipt of Graduate Scale should be suitably interfered with and set aside. The learned counsel for the petitioner submits that the provision of Rule 14(2) in so far as it provides for seniority to be decided on the basis of receipt of Graduate Scale is arbitrary as it seeks to equate the seniority of two posts which are not equal in hierarchy. The learned counsel submits that the feeder post to the post of Assistant Head Master is a graduate teacher, therefore, the seniority to be counted from the date of receipt of Graduate Scale cannot be the yardstick for determining the seniority for a person who in the meantime had been promoted to the post of Assistant Head Master.