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IN THE HIGH COURT OF GAUHATI
ARUP KUMAR GOSWAMI, MANISH CHOUDHURY, JJ.
Kripa Sindhu Das - Appellant
Versus
State of Assam and Others - Respondents
Writ Petition (Civil) No. 1580 of 2017
Decided On : 16-08-2019
Secondary Education (Provincialised) Service Rules, 2003 – Rule 24, Rule 25, Rule 2(n), Rule 3, Rule 14(2), rule 7(7), rule 8(9), rule 19 – Constitution of India – Article 309, Article 14, Articles 16 – Assam Services (Revision of Pay) Rules, 2017 – Private Schools (Conditions of Service) Regulation Act, 1977 – Violation – Legitimate rights – Legislature – Fundamental rights – Date of eligibility – Statutory provision – By this writ petition, preferred under Article 226 of Constitution of India, petitioner has assailed legality and validity of provisions of Rule 3, Rule 14(2), Rule 14(3), Rule 24 and Rule 25 of Assam Secondary Education Service Rules, 2003 on grounds that same are unconstitutional, null and void and ultra vires – In alternative, petitioner has sought for a direction to State respondents to take steps to modify/amend aforesaid impugned provisions – A prayer has also been made for a direction to State respondents to insert an appropriate provision in Assam Secondary Education Service Rules, 2003 for promotion to post of Headmaster in a High School only from feeder post of Assistant Headmaster in such High School, to exclusion of the Graduate Teachers in High School, with further prayers for directions to State respondents to prepare and finalise gradation list of Teachers in Latu High School, District - Karimganj by placing petitioner at top of list showing him as seniormost Graduate Teacher in cadre of Assistant Headmaster and to promote him to post of regular Headmaster in said High School – Held, it is held that where a statute vests a discretionary power in an administrative authority, Court would not interfere with exercise of such discretion unless it is made with oblique end or extraneous purposes or upon extraneous considerations, or arbitrarily, without applying its mind to relevant considerations, or where it is not guided by any norms which are relevant to object to be achieved – Question that has been raised in instant case is not with regard to exercise of discretionary power vested in an administrative authority but on issue of violation of Article 14 of Constitution of India in that unequals have been sought to be treated as equals – Therefore, proposition of law observed in Mangalam Organics Ltd appears to be not relevant – Decision in Jagdish Mandal pertains to scope of judicial review of administrative action in order to prevent arbitrariness, irrationality, unreasonableness, bias and malafides, more particularly, with regard to matters relating to tenders or award of contracts – In Basic Education Board, U.P, power of judicial review to be exercised by Court was discussed wherein it was held that a policy decision cannot be interfered by Court unless it violates Constitutional or statutory provision – Writ Petition is Dismissed
JUDGMENT :
Manish Choudhury, J.
Heard Mr. B. Purkayastha, learned counsel for the petitioner and Mr. S.K. Ghosh, learned Standing Counsel, Education (Secondary) Department, Government of Assam for the respondent nos.1 to 4. Also heard Ms. N. Saikia, learned counsel appearing for respondent no.5.
2. By this writ petition, preferred under Article 226 of the Constitution of India, the petitioner has assailed the legality and validity of the provisions of Rule 3, Rule 14(2), Rule 14(3), Rule 24 and Rule 25 of the Assam Secondary Education (Provincialised) Service Rules, 2003 on the grounds that same are unconstitutional, null and void and ultra vires. In the alternative, the petitioner has sought for a direction to the State respondents to take steps to modify/amend the aforesaid impugned provisions. A prayer has also been made for a direction to the State respondents to insert an appropriate provision in the Assam Secondary Education (Provincialised) Service Rules, 2003 for promotion to the post of Headmaster in a High School only from the feeder post of Assistant Headmaster in such High School, to the exclusion of the Graduate Teachers in the High School, with further prayers for directions to the State respondents to prepare and finalise the gradation list of the Teachers in Latu High School, District - Karimganj by placing the petitioner at the top of the list showing him as the seniormost Graduate Teacher in the cadre of Assistant Headmaster and to promote him to the post of regular Headmaster in the said High School.
3. Before we proceed to the issue of legality and validity of the above legal provisions, mentioned above, of Assam Secondary Education (Provincialised) Service Rules, 2003, put to challenge in the instant writ petition, we deem it apposite to take note of the relevant and pertinent background facts, as the said factual background would make it clearer to understand the implication of the issue that has arisen for determination.
4. The petitioner came to be appointed as an Assistant Teacher, also interchangeably known as Graduate Teacher, at Latu High School, District - Karimganj on ad-hoc basis in the then scale of pay of Rs. 1375-3375/- per month plus other allowances, by an order dated 03.01.1996 passed by the respondent no. 4 i.e. the Inspector of Schools, Karimganj District Circle (KDC), Karimganj for a period of 3 (three) months from the date of joining in his service or till the post was filled up on regular basis through Selection Board, whichever was earlier. It is stated that his service was, later on, regularized in the same School with effect from his date of joining by an order dated 29.06.1999 passed by the respondent no. 4. The service of the petitioner was confirmed vide an order dated 29.03.2004 passed by the respondent no. 4. The petitioner, thereafter, obtained B.Ed. Degree on 18.12.2007 from the Assam University, Silchar after being sent on deputation. He was also granted one advance increment for acquiring the B.Ed. qualification with effect from 01.02.2008 by an order dated 15.03.2008.
5. The respondent no. 5 is also a Graduate Teacher in the same School i.e. Latu High School. The respondent no. 5 joined as such Graduate Teacher in the School at a prior point of time than the petitioner.
6. In the year 2010, the Director of Secondary Education, Assam (i.e. the respondent no.3)-cum-Member Secretary, State Selection Board, Assam published an advertisement inviting applications from intending and eligible candidates for a number of posts of Principal/Vice-Principal/Headmaster/ Assistant Headmaster in Provincialised Higher Secondary/Higher Secondary and Multipurpose/High/High Madrassa Schools of the State, to be filled up as per the provisions of the Assam Secondary Education (Provincialised) Service Rules, 2003. In so far as the post of Assistant Headmaster in High School was concerned, it was
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