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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM
UJJAL BHUYAN, J.
All Assam Middle English Teacher’s Association (ME School) and Ors. – Petitioner
Versus
State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Elementary Education Department, Dispur, Guwahati and Ors. – Respondents
WRIT PETITION (C) NO. 6685 of 2014 & 6194, 6930, 6934, 6935, 6946, 6949, 6981, 7513, 7524 of 2016
Decided On : 21-04-2017
Constitution of India , 1950 – Article 14, 21 A and 226 – Right of Children to Free and Compulsory Education Act, 2009 - Right of Children to Free and Compulsory Education Rules, 2010 - Assam Right of Children to Free and Compulsory Education Rules, 2011 - Assam Secondary Education (Provincialisation) Service Rules, 2003 - Rule 14(3) - Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 - Rules 3 (ii) and 4 (ii) – Education Department - Scheme of amalgamation - Challenged - Office memorandum (OM) dated was issued by State Government in Education Department instructing all Inspectors of Schools to finalize amalgamation proposals of ME Schools with High Schools situated within same campus - This came to be challenged before this Court - Writ petition was disposed of on submission of State Counsel that such decision was not imposed from top but based on consensus between two schools. - OM dated was passed by Principal Secretary to Government of Assam, Secondary Education Department providing for a scheme called Siksha Khetra for amalgamation and merger of different categories of schools located within same campus or in nearby areas - This came to be challenged in by the petitioners of WP (C) wherein notice was issued by this Court on with a limited stay to effect that OM dated should not be enforced on unwilling schools – Held, Supreme Court has held that a decision to merge different cadres is essentially a matter of policy - It is possible that by reason of such merger chance of promotion of some of the employees may be adversely affected - But this cannot be a ground for setting aside merger which is essentially a policy decision - Mere chance of promotion is not a condition of service and the fact that there would be reduction in the chances of promotion would not amount to a change in conditions of service - Position that Courts are not to plunge into policy making - While interference with policy is permissible in law when there is violation of law and infraction of fundamental rights, yet policy has to be scrutinized with ample circumspection - Executive authority of State is within its competence to frame a policy and unless such a policy is absolutely capricious and arbitrary thereby offending Article 14 of Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, Court should not tinker with policy decision of the State - Consistent judicial thinking on this point is clearly discernible - There is extremely limited scope for judicial foray into a policy decision of State - Having regard to grounds of challenge made to policy decision as highlighted above, Court is of unhesitant view that no case for interference is made out, save and except the observations made above - Court finds no merit in writ petitions, which are accordingly dismissed
This ten petitions have been filed under Article 226 of the Constitution of India challenging the legality and validity of the decision of the State Government in the Education Department for amalgamation of different categories of schools located in the same campus and merger of similarly situated schools in nearby areas.
2. Since the subject matter of all the writ petitions are inter-related, those were heard together and are being disposed of by this common order.
3. Heard Mr. R C Saikia, Mr. P K Deka and Mr. R Islam, learned Counsel for the petitioners and Mr. D Saikia, learned Senior Additional Advocate General, Assam assisted by Mr. A Deka and Mr. N. Sarma, learned Standing Counsel, Education Department for the respondents.
4. A brief narration of facts and events would be in order to place the lis involved in the present litigation in the correct perspective for its proper adjudication.
5. An office memorandum (OM) dated 12-01-2005 was issued by the State Government in the Education Department instructing all Inspectors of Schools to finalize amalgamation proposals of ME Schools with High Schools situated within the same campus. This came to be challenged before this Court in WP (C) No.677/2005 (Krishna Kanta Talukdar Vs- State of Assam). The said writ petition was disposed of on 31-05-2011 on submission of State Counsel that such decision was not imposed from the top but based on consensus between the two schools. Therefore, this Court directed that the scheme of amalgamation should be confined to consenting schools only and not forced upon unwilling schools.
6. Thereafter, Government of Assam in the Elementary Education Department issued OM dated 07-07-2014 providing for amalgamation of schools. WP (C) No.6685/2014 came to be filed by All Assam Middle English Teachers Association (ME School) and its secretary challenging the legality and validity of the aforesaid OM dated 07-07-2014. An interim order was passed on 19-12-2014 to the effect that there should be no further amalgamation of schools.
7. Almost two years thereafter, OM dated 22-09-2016 was passed by the Principal Secretary to the Government of Assam, Secondary Education Department providing for a scheme called Siksha Khetra for amalgamation and merger of different categories of schools located within the same campus or in nearby areas. This came to be challenged in WP (C) No.6194/2016 by the petitioners of WP (C) No.6685/2014 wherein notice was issued by this Court on 06-10-2016 with a limited stay to the effect that OM dated 22-09-2016 should not be enforced on unwilling schools.
8. Following the same, WP (C) Nos. 6930, 6934, 6935, 6946, 6949, 6981, 7513 and 7524 of 2016 came to be filed.
9. Before adverting to the pleadings and the rival submissions, it would be apposite to briefly refer to the legal provisions and the key features of the two OMs dated 07-07-2014 and 22-09-2016, respectively.
10. Article 21 A was inserted in the Constitution of India by the Constitution (Eighty sixth Amendment) Act, 2002 w.e.f. 01-04-2010. By the said Article, right to education was expressly declared a fundamental right. It says that State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.
11. Consequently, the Right of Children to Free and Compulsory Education Act, 2009 (briefly “the 2009 Act” hereinafter) was enacted as envisaged in Article 21 A of the Constitution to provide for free and compulsory education to all children of the age of 6 to 14 years. The substance of the 2009 Act is that every child in the age group of 6 to 14 years shall have the right to free and compulsory education in a neighbourhood school till completion of elementary education. The 2009 Act lays down norms and standards for schools to be established or recognized and also provides for qualification for appointment and terms and conditions of service of teachers. The 2009 Act also requires the appro
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