Distance learning qualifications for teachers do not violate Rule 13 of the Assam Civil Services (Conduct) Rules, 1965, as they do not disrupt work, thus exempting teachers from needing prior permission.

JUDGMENT & ORDER :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Borthakur, learned counsel for the petitioners and Mr. N.J.Khataniar, learned School Education Department, Assam for the respondents.

2. These two writ petitions are taken up together. The challenge made in these two petitions is the same, i.e., a challenge to the communication bearing No. E-417782/18 dated 19.12.2023.

3. The petitioners in these two petitions are working as Subject Teachers/Assistant Teachers and In-Charge Headmasters in different provincialised Secondary Schools under the jurisdiction of the Inspector of Schools, Sivasagar District Circle, Sivasagar and under the jurisdiction of the Inspector of Schools, Tinsukia District Circle, Tinsukia. They had acquired B.Ed.degree, MA degree through distance mode offered by three universities, i.e., IDOL Gauhati University, Dibrugarh University and Assam University.

4. By the impugned communication dated 19.12.2023, the Director of Secondary Education, Assam, Kahilipara instructed all the Inspectors of Schools, Assam asking them to immediately start Departmental Proceedings against those teaching and non-teaching staff of the Provincialised Secondary Schools, who have acquired any academic or professional qualification during their service period without obtaining previous permission from the appointing authority in violation of the provision of Rule 13 of the Assam Civil Services (Conduct) Rules, 1965 (hereinafter referred to as the Rules, 1965) inasmuch as according to the Director of Secondary Education, Assam pursuing any Educational/ Professional qualification by the teaching and non-teaching staff of a Provincialised Secondary School, without permission from the employer violates Rule 13 of the Rules, 1965 and therefore, liable to be punished as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the Rules, 1964).

5. It was further instructed by the Director of Secondary Education, Assam under its communication dated 19.12.2023 that prima facie, if it is found that the incumbent has violated Rule 13 of the Rules, 1965, then the penalties prescribed under Rule 7 of the Rules, 1964 may be imposed upon such Government Servant following due procedure as prescribed in the aforesaid Rule.

6. Mr. Borthakur, learned counsel for the petitioners assailing the aforesaid communication argues that it is an admitted position that by the Office Memorandum (OM) dated 28.07.2014, those teachers who acquire qualification through distance mode from the recognised State universities under the State are excluded from the purview of Rule 13 of the Rules, 1965 and therefore, in the backdrop of OM dated 28.07.2014, the impugned communication is not sustainable under law without there being any clarification as regards the applicability of said OM dated 28.07.2014.

7. Referring to the affidavit-in-opposition filed by the respondents, more particularly, the stand of the respondent that the impugned communication was issued in terms of the determination made by this Court in its order dated 28.09.2023 in I.A.(Civil) No. 2615/2023 (Smt. Mouchumi Saharia Vs. Smriti Rekha Kalita and 3 others), Mr. Borthakur, learned counsel for the petitioners, contends that the observation made by this Court in Smt. Mouchumi Saharia (supra), more particularly, at paragraph 4, cannot be said to be a ratio decidendi and/or writ of mandamus to initiate departmental proceedings against all the teachers like that of the petitioners; rather, it is an obiter. According to Mr. Borthakur, learned counsel for the petitioners, if such a paragraph is removed from the judgment, the same will not affect the outcome of the judgment passed in Smt. Mouchumi Saharia (supra). In this context, Mr. Borthakur, learned counsel for the petitioners, places reliance on the decision of the Hon’ble Apex Court passed in the case of the State of Gujarat and others Vs. Utility Users Welfare Association reported in 2018 (6) SCC 21

8. Regard