(THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
W.P.(C) No.4504 OF 2009
1.Sri Sajal Ghosh,
.S/o of Late Bajendra Ghosh,
.Resident of Shillong Road, Lanka,
.P.O. & P.S.- Lanka,
.District Nagaon, Assam
Petitioner.
- Vs -
1.The State of Assam,
.Represented by the Commissioner & Secretary . to the Govt. of Assam, Education (Elementary) Department, .Dispur, Guwahati - 6.
2.The Director of Elementary Education,
.Assam, Kahilipara, Guwahati-19.
3.The District Elementary Education Officer, .Nagaon.
4.The Deputy Inspector of Schools,
.Hojai, Sankardev Nagar.
5.The Block Elementary Education Officer,
.Lanka, Nagaon.
6.President of School Managing Committee of
.Sister Nivedita Girls ME School,
.Lanka, Nagaon.
7.Shri Haripada Sarma,
.Assistant Teacher of Sister Nivedita Girls ME School, .Lanka, Nagaon.
Respondents.
!Mr. D.K. Sarmah,
Mr. P.S. Lahkar,
Mr. N Pathak
Ms. A Talukdar
Mr. S.C. Biswas,
Mr. S. Dey,
Mr. M. Biswas,
Md. A. Hussain
Petitioner's Advocates.
^Mrs. M. Gogoi
Mr. S.C. Biswas
Respondent's Advocates
CORAM:
THE HON'BLE MR. JUSTICE HRISHIKESH ROY
Date of Judgment:11/01/2011
:JUDGMENT
ORDER (ORAL)
Heard Mr. D.K. Sarmah, learned counsel appearing for the writ petitioner in WP(C) 4504/2009 and WP(C) 6147/2010. Also heard Mr. S.C. Biswas, learned counsel appearing for the private respondent No.7, Haripada Sarma who has also filed WP(C) 2044/2010 and WP(C) 5019/2009. Mrs. M. Gogoi Medhi, learned Standing Counsel for the Education Department represents the official respondents.
2.The core issue in these cases pertain to the rival claim for the post of Headmaster of the Sister Nivedita Girls ME School, Nagaon hereinafter referred to as "the School", where the writ petitioner is functioning as in-charge Headmaster w.e.f. 30.5.2009. He challenges the promotion of respondent No.7 as Headmaster of the School ordered on 24.9.2009 by the Director of Elementary Education, Assam (DEE). Flowing from this main issue, peripheral issues like giving of charge of office, payment of salary etc. have emanated in the related cases.
.As common argument is advanced and the cases are interlinked, they are disposed of by this common order.
3.1. .The Assam Elementary Education (Provincialization) Service and Conduct Rules, 1981 (hereinafter referred to as "the Rules") lays down the service conditions for teachers of elementary schools. Promotion to the post of Head Pandit is required to be made under Rule 5 on the basis of seniority-cum- efficiency, on recommendation of a Sub-Divisional Selection Committee to be constituted by the DEE.
3.2.The specific procedure for promotion in ME Schools is prescribed through Govt. Notification dated 30.8.1986. According to this Notification, the post of Headmaster is to be filled up on the basis of seniority-cum-efficiency, on the recommendation of the District Level Selection Committee to be constituted by the DEE. The Committee is required to prepare a panel of selected teachers and enlisted penal remains valid for a period of one year, from the date of selection.
4.On retirement of the regular incumbent in the School, when the regular vacancy of Headmaster became available on 30.5.2009, on the basis of a No Objection Letter dated 26.4.2009 given by the teachers including the respondent No.7 (Haripada Sarma) of the school, the writ petitioner was permitted to hold charge of Headmaster in addition to his own duty as an Assistant Teacher, by order dated 7.5.2009 issued by the District Elementary Education Officer (DEEO), Nagaon. Subsequently the in-charge arrangement was extended on 7.10.2009.
5.1.By referring to the Gradation List of teachers of Hojai Sub- Division notified on 26.12.2008 by the DEEO, Nagaon, it is pointed out by Mr. D.K. Sarmah that the name of the respondent No.7 nowhere figures in the said list and accordingly it is contended that the private respondent could not have been promoted as per the provision of the Rules and the Notification dated 30.8.1986, to the post of Headmaster.
5.2.The respondent No.7 in his counter affidavit justifies his promotion to the post of Headmaster on the basis of the Draft Gradation List notified on 3.10.2006 of teachers eligible for promotion to the post of Headmasters in the M.E. Schools under the Hojai Sub-Division. However the private respondent does not refer to any regular select list, to support his promotion.
6.1.This Court on 16.12.2010 while posting this case for final disposal directed the department's counsel to produce the record(s) pertaining to the selection of respondent No.7 for appointment as regular Headmaster. The records produced for Court's perusal shows that the District Level Select List prepared by the Members of the Selection Committee and notified on 28.1.2009, does not include the name of the respondent No.7. Accordingly this Select List could not have been made the basis for regular promotion of respondent No.7 to the post of Headmaster.
6.2.However a subsequent insertion made on 1.6.2009 by the DEEO is found in the records, whereby the name of the respondent No.7 is purported to be inserted in the District Level Select List notified on 28.1.2009.
7.According to the procedure laid down in the Government Notification dated 30.8.1986, promotion is to be considered on the criterion of seniority-cum-efficiency on the recommendation of the District Level Selection Committee. Therefore the recommendation as per the applicable norms, is required to be made by a Committee and the DEEO acting alone, does not have the authority in my view, to subsequently add any name in the Select List, prepared jointly by the Members of the Committee.
8.In the opinion of this Court the respondent No.7 couldn't be promoted as regular Headmaster on the basis of the Draft Select List notified by the Sub-Divisional Committee on 30.8.1986 since no right accrues out of a Draft List. Similarly since the name of the respondent No.7 does not figure in the District Level List notified on 28.1.2009, the same cannot also be the basis for promotion of the respondent No.7 by subsequent unilateral insertion in the list by DEEO. In such circumstances, it is declared that the promotion given to the respondent No.7 on 24.9.2009 is not authorized in law.
9.The writ petitioner claims that he is functioning as in-charge Headmaster of the school since 30.5.2009 whereas the respondent No.7 is also claiming to be functioning as the Headmaster, after he unilaterally took charge on 19.10.2009. But both the parties contest the claim of the other on this aspect of the matter. It further appears that the respondent No.7 is maintaining a separate attendance register in order to justify his claim of functioning as Headmaster of the school. Be that as it may, the net result of the controversy is that the respondent No.7 has not received his salary, either as a Headmaster or even as an Assistant Teacher and the entire blame for non- disbursal of salary is laid at the door of the writ petitioner.
10.Mr. D.K. Sarmah, learned counsel for the writ petitioner concedes that no additional amount is payable to an in-charge Headmaster and as such the petitioner is drawing salary only as an Assistant Teacher, even though he is functioning as in-charge Headmaster.
11.Having held that the promotion of the respondent No.7 was erroneously ordered as his name did not figure in the District Level Select List notified on 28.1.2009 and considering that the appointment to the post of Headmaster is required to be made on the basis of seniority-cum-efficiency, it would be appropriate in my view, to direct the State Authorities to initiate the process for filling up the post of Headmaster in the Sister Nivedita Girls ME School, Nagaon as per the provisions of the Rules and the Notification dated 30.8.1986. Mrs. M. Gogoi Medhi, learned Standing Counsel for the Education Department submits that 2 months time would be needed for the purpose.
12.In view of above, direction is issued for taking necessary steps for appointment of a regular Headmaster to the Sister Nivedita Girls ME School, Nagaon by considering the serving teachers of the school as per the applicable norms. The exercise in this regard be completed on or before 14.3.2011.
13.In view of the controversy about the person functioning as the in- charge Headmaster of the school, I feel that neither the petitioner nor the respondent No.7 should be considered for salary for the post of Headmaster for the intervening period. However if the respondent No.7 has not been paid the salary, steps are directed to be taken for payment of current and arrear salary to the respondent No.7 as Assistant Teacher only.
14.The present arrangement in the school shall continue until 14.3.2011 or till regular promotion is made, whichever is earlier and the writ petitioner shall be permitted to continue as in-charge Headmaster of the school.
15.A copy of this order be furnished to Mrs. M. Gogoi Medhi, learned Standing Counsel for the Education Department to enable her to intimate the Court's order to the Commissioner and Secretary to the Department of Elementary Education, Assam so that the consequential exercise can be carried out under the supervision of the senior officer, in view of the unfairness noticed in the conduct of the junior officers of the department, while dealing with the issues raised in these cases
16.This order will dispose of all the writ petitions.
. JUDGE