1
THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
1.
2.
3.
4.
1.
WP(C)
WP(C)
WP(C)
WP(C)
No.71 of 2012
No.73 of 2012
No.765 of 2011 and
No.5566 of 2011.
In WP(C) No.71 of 2012
Petitioner :
Sri Kanak Chandra Nath,
Son of Late Nagendra Chandra Nath,
Village Kalitapara,
P.O. Bhulukadaba,
District – Barpeta, Assam.
By Advocates :
Mr. S. K. Talukdar, Advocate,
Mr. A. VErma, Advocate.
-versus-
Respondents:
1.
The State of Assam,
Represented by the Secretary to the
Government of Assam,
Department of Education (Secondary),
Dispur, Guwahati-6.
2.
The Director of Secondary Education, Assam
Kahilipara, Guwahati-19.
3.
The Director of Education,
Bodoland Territorial Council (BTC),
Kokrajhar, Assam.
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
Page 1 of 13
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4.
The Inspector of Schools,
Chirang District Circle, Kashikotra,
BTC, Kokrajhar, Assam.
5.
The National Council for Teachers Education,
IGI Stadium, IP Estate,
New Delhi-110002.
6.
The Union of India,
Represented by the Secretary to the
Government of India, Ministry of
Human Resource Development,
New Delhi.
By Advocates:
Mr. A. Deka, SC, Education.
Mr. K. Das, SC, BTC.
2.
In WP(C) No.73 of 2012
Ram Bahadur Chetry
…
….
….
Petitioner
The State of Assam and others.
…. ….
….
Respondents.
- versus -
For the petitioner :
Mr. S. K. Talukdar, Advocate,
Mr. A. VErma, Advocate.
For the Respondents : Mr. A. Deka, SC, Education.
Mr. K. Das, SC, BTC.
3.
In WP(C) No.765 of 2011
The Asom Madhyamik Sikshak Aru
Karmachari Santha & another.
…
…. ….
Petitioners
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
Page 2 of 13
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- versus The State of Assam and others.
…. ….
For the petitioners :
….
Respondents.
Mr. B. C. Das, Sr. Advocate,
Mr. R. De, Advocate.
For the Respondents : Mr. A. Deka, SC, Education.
Mr. K. Das, SC, BTC.
Mr. P. K. Tiwari, Advocate.
4.
In WP(C) No.5566 of 2011
Abdul Basith Laskar
…
….
….
Petitioner
The State of Assam and others.
…. ….
….
Respondents.
- versus -
For the petitioner :
Md. Giash Uddin, Advocate,
Mr. M. J. Quadir, Advocate.
For the Respondents : Mr. A. Deka, SC, Education.
BEFORE
HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL
THE HON’BLE MR. JUSTICE A. C. UPADHYAY
Date of hearing :
31.01.2012
Date of judgment :
31.01.2012.
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
Page 3 of 13
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JUDGMENT AND ORDER (Oral)
(A. K. Goel, CJ.)
1.
This order will dispose of WP(C) Nos.71 of 2012, 73 of 2012,
765 of 2011 and 5566 of 2011 as it is stated by learned counsel for
the parties that all the petitions involve common question of law.
2.
WP(C) No.765 of 2011 has been filed by the Association of
Teachers in Secondary Schools and High Schools in the State of
Assam raising a grievance about the requirement of possession of
BT/Bed degree for promotion to the post of Headmaster, under
Rule 14(4)(i) of the Assam Secondary Education (Provincialised)
Service Rules, 2003 (2003 Rules).
3.
By the advertisement dated 2.11.2010 (Annexure-C to the
writ petition) applications were invited from eligible candidates
for
posts
of
Superintendents
Principals,
Vice
and
Assistant
Principals,
Headmasters/
Headmasters/Assistant
Superintendents as per qualifications laid down therein and the
2003 Rules. Issue raised in the writ petitions is limited only to the
promotion to the post of Headmasters governed by Rule 14.
4.
The Assam Secondary Education (Provincialisation) Act,
1977, regulates conditions for recruitment for appointment of
teachers in High and Higher Secondary Schools read with 2003
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
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Rules. Rule 14(2) deals with promotion to the post of Headmaster
is based on school-wise seniority list. Eligibility is laid down in subRule (4) as follows :
“Rule 14(4): Eligibility
of
the
Headmistress/Superintendent
post
of
/Assistant
Headmaster/
Headmaster/
Assistant Superintendent of High/High Madrassa Schools as
the case may be :
(i)
The
minimum
qualification
Headmaster/
for
the
post
of
Headmistress/Superintendent
/Assistant Headmaster/ Assistant Superintendent
shall be Graduate in Arts, Science or Commerce
with BT or B.Ed degree.
(ii)
He/she must possess at least 10 years of teaching
experience as Graduate Teacher.
(iii)
He/she must possess at least 7 years of teaching
experience as Graduate Teachers to be an
Assistant
Headmaster/Headmistress/Assistant
Superintendent.”
Grievance of the petitioners is that BT/B.Ed degree could not be
made essential qualification for the post of Headmaster for the
following reasons :
(i)
The feeder cadre for the post of Headmaster is the
graduate teacher and their qualification as per Schedule-I to the
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2003 Rules is graduation with weightage for having B.Ed./M.Ed.
degree. Thus, even without B.Ed/M.Ed degree a person can be
appointed graduate teacher.
(ii)
Rule 12(d) prescribes qualification for appointment to
the post of Principal of Higher Secondary Schools which is a
higher post and under the said Rule there is no requirement to
have BT/B.Ed degree.
(iii)
There are schools where there is no B.Ed/BT degree
holders, still the requirement is made applicable, making it
impossible to fill up the post of Headmaster.
5.
No reply has been filed on merits even though the writ
petition was admitted on 11.02.2011 and time was again granted
for filing reply on 26.08.2011. However, an affidavit has been filed
by the Director of Secondary Education of the State of Assam
stating that State Selection Board was constituted on 25.10.2010
and
thereafter
the
impugned
advertisement
was
issued.
Thereafter select lists were submitted and on that basis the
appointing
authority
published
the
list
of
792
Headmasters/Superintendent on 02.08.2011 and appointment
letters dated 05.08.2011 were issued. Thereafter, on 27.09.2011
appointment letters were issued to 88 more candidates.
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
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6.
An application has been filed for intervention by 52
applicants (MC 3559/2011) who are B.Ed/BT degree holders
stating that they could not be appointed on account of stay
order granted in different proceedings and thus they were
entitled to be heard. The application was ordered to be heard
with the main case. No stay was granted though appointments
were made subject to the decision of the writ petitions.
7.
We have heard learned counsel for the parties.
8.
Mr. B. C. Das, learned Senior Counsel, appearing for the
petitioners
in
WP(C)
No.765/2011,
submitted
that
though
educational qualification may be a basis for classification but the
same must be rational having nexus with the object for which the
qualification was laid down. If the qualification laid down was
arbitrary, the same will be violative of Article 14 of the
Constitution. He placed reliance on the following judgments :
1.
(1975)3 SCC 76, Md. Sujat Ali & ors vs. Union of India
and others.
2.
(1998)7 SCC 676, Food Corporation of India vs. Om
Prakash Sharma and others [paras 4,19, 32 and 33].
3.
(1995)1 SCC 519, State of T.N. vs. Ananthi Ammal and
others [paras 7, 17 and 20].
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
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He submitted that B.Ed/BT qualification had no rational as the
said qualification was not laid down for the post of teachers
which was the feeder cadre and the said qualification was also
not required for the post of Principal which was a higher post. He
submitted that for want of the said qualification, in certain
schools no Headmaster may be appointed and in certain schools
juniormost teachers have become Headmaster which may not
be a desirable situation.
9.
Mr. Giash Uddin, learned counsel, appearing in WP(C)
No.5566 of 2011, adopted the submissions of Mr. Das, learned
Senior Counsel, and further submitted that when at the time of
appointment as teacher, the qualification for promotion to the
post of Headmaster did not include B.Ed/BT degree, the said
qualification could not be introduced later as it will amount to
withdrawing the benefit already acquired by the candidate in
violation of principle laid down in the following judgments :
1.
(1986) Supple SCC 584, T.R.Kapur & others vs. State of
Haryana and others.
2.
(1990)1 SCC 411, P. Mahendran & others vs. State of
Karnataka and others.
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3.
(1984)3 SCC 281, Ex-Capt. K.C.Arora & another vs.
State of Haryana and others.
4.
(1997)3 SCC 641, R.S. Ajara & others vs. State of Gujrat
and others.
10.
Mr. S. K. Talukdar, learned counsel appearing in WP(C)
Nos.71/2012 and 73/2012, also adopted the above submissions
and further submitted that laying down of qualification of BT/B.Ed
for teachers under the National Council for Teacher Education
(Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) (Amendment) Regulations, 2003, was ultra
vires the National Council for Teacher Education Act, 1993 (NCTE
Act), as the said Act dealt with the teacher education only and
not with the school education. Reliance was placed on
judgment of the Hon’ble Supreme Court in (2008)3 SCC 432,
Basic Education Board, U.P. vs. Upendra Rai and others [para 19]
11.
Opposing the above submissions learned counsel for the
Education Department, Mr. A. Deka, submitted that the
petitioners did not participate in the selection process as they did
not have the requisite qualification and thus they could not
maintain the writ petitions. He also submitted that qualifications
for the post of Principal were separately laid down and the post
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
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was to be filled up by direct recruitment and not by promotion.
Though B.Ed/BT degree was not prescribed for the post of
Principal, post graduation was required which was not the
qualification for the post of Headmaster. Thus, both the posts are
different and different qualifications are laid down for the said
posts. There was no parity in the said two posts.
12.
Mr. P. K. Tiwari, learned counsel appearing for the
interveners, who were holding B.Ed/BT degree but could not be
appointed
on
account
of
stay
orders
in
various
other
proceedings, submitted that the Rule was a condition of service
and promotion was governed by applicable condition of service
which could be changed from time to time. Higher qualification
could be laid down for promotion and the same could not be
held to be irrational. In schools where there was no B.Ed/BT
degree holder available, the State could be directed to relax the
qualification or prescribe some other mechanism. He placed
reliance on the following judgments :
1.
AIR 1967 SC 1889, Roshal Lal Tandon vs. Union of India
[para 6].
2.
(1999)3 SCC 653, State of Jammu & Kashmir vs. Shiv
Ram Sharma and others [para 6].
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3.
AIR 1974 SC 1, State of J. & K. vs. Shri Triloki Nath Khosa
and others [para 40A).
4.
(1997)3 SCC 103, Rajasthan State Electricity Board
Accountants Association vs. Rajasthan State Electricity
Board and another [para 9].
5.
(1993)2 SCC 340, P. Murugesan & others vs. State of
Tamil Nadu and others.
6.
(1975) Supp(1) SCC 349, D.K.Jain vs. State of Haryana
and others.
13.
Question for determination is whether the Rule prescribing
qualification of B.Ed/BT degree for promotion to the post of
Headmaster was irrational as said qualification was not laid down
for the post of teacher which was a feeder cadre or for the
Principal which was a higher post and was liable to be struck
down on that ground?
14.
In our view, the answer has to be in the negative.
15.
It is well settled that qualification for promotion can be laid
down by the appointing authority and higher qualification can
be the basis for classification. There is no conflict in various
judgments relied upon by learned counsel for the parties on the
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issue. We do not, therefore, consider it necessary to make
detailed references thereto.
16.
Requirement of BT/B.Ed degree in the context of school
education cannot be held to be irrational. No doubt, absence of
such requirement for the post in the feeder cadre may create a
situation in which no eligible candidate may be found or eligible
candidate found may be at the bottom of seniority, but there is
nothing to show that such a situation is arising in number of cases.
Such a case may be an isolated one, which can be taken care
of by a separate mechanism. Absence of the said qualification
for the post of Principal is also no ground for declaring the Rule to
be irrational. Qualifications and method of recruitment for the
posts is different. We, thus, do not find any ground to interfere
with the laying down of qualification for BT/B.Ed degree for
promotion to the post of Headmaster.
Question of validity of
qualifications for the posts of teachers laid down under the NCTE
Act and Rules does not arise for consideration as appointments in
question are not to the posts of teachers. The said question need
not be gone into.
17.
However, it is advisable that the Department works out
appropriate mechanism to deal with situations where there is no
candidate with the qualification of B.Ed/BT or candidate
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available is junior so that the schools do not suffer. Such a
mechanism may be worked out and notified within three months
from today. We will also suggest that the Education Department
may constitute a committee of experts to review the existing
qualification within one month from today which may give its
report in next two months. The State may take such further action
thereafter as may be found appropriate. It is made clear that
such an exercise will be no bar to appointments being made
earlier, if considered necessary.
18.
The writ petitions will stand disposed of accordingly.
JUDGE
CHIEF JUSTICE
TUC
WP(C) Nos.71/2012, 73/2012, 765/2011 & 5566/2011
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