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IN THE HIGH COURT OF GAUHATI
Achintya Malla Bujor Barua, J.
Gajen Ch Swargiary - Appellant
Versus
State Of Assam - Respondent
W.P. (C) No. 1343 of 2021
Decided On : 03-03-2021
Seniority - Promotion - Assam Secondary Education (Provincialised Schools) Service Rules, 2018 - Rule 14(2)(b)
Fact of the Case:
The case involved a dispute over the promotion of the Headmaster of a school after the amalgamation of two schools. The petitioner and the respondent both claimed to be the Headmaster of the amalgamated school.
Finding of the Court:
The court found that the respondent, who was an Assistant Headmaster in the amalgamated school, would be eligible for promotion as the Headmaster based on Rule 14(2)(b) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018.
Issues: The main issue was whether the respondent, who became eligible for promotion after the school amalgamation, could participate in the selection process initiated before his eligibility.
Ratio Decidendi: The court held that eligibility for participation in a selection process is determined at the time of initiation of the process, and allowing the respondent to participate would violate established principles of law.
Final Decision: The court set aside the order cancelling the petitioner's promotion and remanded the matter to the Commissioner and Secretary for an appropriate decision, considering the legal provisions and the need for a fresh selection process.
JUDGMENT
Achintya Malla Bujor Barua, J. - Heard Mr. BJ Ghosh, learned counsel for the petitioner, Mr. R Mazumdar, learned counsel for the Secondary Education Department of the Government of Assam, Mr. B Choudhury, learned counsel for the authorities under the BTC and Mr. R Islam, learned counsel for the respondent No.7.
2. The facts in brief are that the writ petitioner Sri Gajen Chandra Swargiary was appointed as an Assistant Teacher in the Chinakona High School on a graduate scale of pay on 01.10.1998. The respondent No.7 Sri Jiten Chandra Kalita on the other hand was appointed as an Assistant Teacher in the Chinakona ME School and he received his graduate scale of pay from 04.06.1992. The Chinakona ME School was amalgamated with the Chinakona High School as per the order of amalgamation dated 03.04.2017. We further take note that the respondent No.7 Sri Jiten Chandra Kalita was also the Headmaster of Chinakona ME School at the time when the school was amalgamated. As per the terms of amalgamation, the Headmaster of the ME School becomes Assistant Headmaster of the amalgamated High School after such amalgamation. Admittedly, after the amalgamation of the ME School and the High School on 03.04.2017, the respondent No.7 Sri Jiten Chandra Kalita was the Headmaster of the School.
3. It had been clarified that as per Rule 14(2) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018, the Assistant Headmaster of a High School would also be construed to be a Graduate Teacher of the School and has all the rights that may accrue to a Graduate Teacher.
4. Both the petitioner Sri Gajen Ch Swargiary and the respondent No.7 Sri Jiten Chandra Kalita are claiming to be the Headmaster of Chinakona High School after its amalgamation. A process for a regular promotion to the post of Headmaster of the Chinakona High School was initiated as per the advertisement dated 27.05.2015. The writ petitioner Sri Gajen Chandra Swargiary offered his candidature for the post of Headmaster pursuant to the said advertisement.
5. The selection process for promotion as a regular Headmaster culminated in the order dated 16.08.2017 of the Director of Education, BTC by which the writ petitioner Sri Gajen Chandra Swargiary was promoted to the post of Headmaster. The order dated 16.08.2017 of the Director of Education, BTC promoting the petitioner Sri Gajen Chandra Swargiary as the Headmaster of Chinakona High School was assailed by the respondent No.7 Sri Jiten Chandra Kalita in WP(C) No.4368/2020 and by the order dated 17.11.2020, the Commissioner and Secretary to the Government of Assam in the Secondary Education Department was directed to entertain a representation dated 06.12.2019 submitted by the respondent No.7 Sri Jiten Chandra Kalita and thereafter to pass a reasoned order thereon by giving a personal hearing to both the petitioner as well as the respondent No.7. Consequent thereof, the order dated 10.02.2021 has been passed by the Commissioner and Secretary to the Government of Assam in the Secondary Education Department.
6. In the order of 10.02.2021, the Commissioner and Secretary took note of the provisions of Rule 14(2)(b) of the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (in short Rules of 2018), which came into force from 18.09.2019 and took note that under the said provision, in order to be eligible for promotion to the post of Headmaster in a High School, a candidate must be a graduate with B.Ed degree and should have at least 10 years of teaching experience as a Graduate Teacher, where a Graduate Teacher would also include the cadre of Assistant Headmaster. It further provided that the seniority of the Assistant Headmaster shall be counted from the date of joining as Graduate Teacher with graduate scale of pay. It was also provided that in case of an amalgamated High School where the ME/MV School had been amalgamated, the Assistant Headmaster would be eligible for selection as Headmaster subject to the
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