THE GAUHATI HIGH COURT AT GUWAHATI (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)

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1 1 THE GAUHATI HIGH COURT AT GUWAHATI (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH) 1. WP(C) No.71 of WP(C) No.73 of WP(C) No.765 of 2011 and 4. WP(C) No.5566 of 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 The Director of Secondary Education, Assam Kahilipara, Guwahati The Director of Education, Bodoland Territorial Council (BTC), Kokrajhar, Assam. Page 1 of 13

2 2 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 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 - versus -.. Petitioner The State of Assam and others.... Respondents. 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 Page 2 of 13

3 3 - versus - The State of Assam and others.... Respondents. For the petitioners : 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 - versus -.. Petitioner The State of Assam and others.... Respondents. For the petitioner : Md. Giash Uddin, Advocate, Mr. M. J. Quadir, Advocate. For the Respondents : Mr. A. Deka, SC, Education. B E F O R E HON BLE THE CHIEF JUSTICE MR. A. K. GOEL THE HON BLE MR. JUSTICE A. C. UPADHYAY Date of hearing : Date of judgment : Page 3 of 13

4 4 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 (Annexure-C to the writ petition) applications were invited from eligible candidates for posts of Principals, Vice Principals, Headmasters/ Superintendents and Assistant 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 The Assam Secondary Education (Provincialisation) Act, 1977, regulates conditions for recruitment for appointment of teachers in High and Higher Secondary Schools read with 2003 Page 4 of 13

5 5 Rules. Rule 14(2) deals with promotion to the post of Headmaster is based on school-wise seniority list. Eligibility is laid down in sub- Rule (4) as follows : Rule 14(4): Eligibility of the post of Headmaster/ Headmistress/Superintendent /Assistant Headmaster/ Assistant Superintendent of High/High Madrassa Schools as the case may be : (i) The minimum qualification for the post of Headmaster/ 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 Page 5 of 13

6 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 and time was again granted for filing reply on 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 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 and appointment letters dated were issued. Thereafter, on appointment letters were issued to 88 more candidates. Page 6 of 13

7 7 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]. Page 7 of 13

8 8 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. Page 8 of 13

9 9 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 Page 9 of 13

10 10 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]. Page 10 of 13

11 11 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 Page 11 of 13

12 12 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 Page 12 of 13

13 13 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 Page 13 of 13