WP(C) 2617/2008 BEFORE THE HON’BLE MR. JUSTICE BK SHARMA JUDGMENT AND ORDER (ORAL) Heard Mr. K Sarma, learned counsel for the petitioner as well as Mr. N Borah, learned counsel for the respondent No.4. I have also heard Mr. MK Misra, learned Standing Counsel, Education Department, Assam. I have also care fully examined the materials on record. 2. The petitioner, who is serving as Hindi Teacher in Biswanath Cha riali Practicing M.V. School is aggrieved by the Annexure-5 order dated 22.05.20 08 by which the respondent No.4 has been promoted purely on temporary basis to t he post of Headmistress. According to the petitioner, the said order dated 22.0 5.2008 has been passed in gross-violation of the rules holding the field. It i s the case of the petitioner that she being the senior most teacher in the schoo l and the recruitment to the post, as per rule being selection from amongst the eligible candidates, the authority could not have promoted the respondent No.4 w ithout considering the case of the petitioner. 3. The official respondents have not filed any counter affidavit bu t Mr. Misra, learned Standing Counsel, Education Department has produced the let ter dated 17.07.2008 addressed to the Sr. Standing Counsel, Education Department by the Director of Elementary Education, Assam. As per the said instruction, t he respondent No.4 had been holding the charge of Headmistress since 31.12.2002. Her case was forwarded by the Deputy Inspector of Schools, Biswanath vide the letter dated 19.12.2007 and it was only thereafter, the impugned order was passe d promoting her to the post of Headmistress. In the counter affidavit filed by the respondent No.4, it has been stated that the petitioner is not qualified to hold the post of Headmistress. In this connection, the respondent No.4 has refe rred to the procedure laid down vide notification dated 30.08.1986. The said pr ocedure and for that matter the notification dated 30.08.1986 has been issued ex ercising the power under Section 27(1) of the Assam Elementary Education (Provin cialisation) Act, 1974. Section 27 of the Act empowers the authority to make ru les for carrying out the purposes of the Act. 4. If we go all the respective dates of appointment, undoubtedly th e petitioner is senior to the respondent No.4. While the petitioner was appoint ed as Hindi Teacher in the year 1979 (25.08.1979), the respondent No.4 was appoi nted as Assistant Teacher in another school on 01.12.1982. Later on, in the mon th of June, 1984, she was transferred to the present school. Although it is the contention of the petitioner that the seniority of the respondent No.4 in the p resent school is to be counted from 1984 but the alternative stand is that even if her seniority is counted from 1982, the petitioner will rank senior to her in view of her year of appointment, i.e. 1979. 5. The petitioner is an intermediate with Praveen in Hindi, which i s claimed to be equivalent to MA Degree in Hindi. On the other hand, the respon dent No.4 is BA with ’Normal’. 6. As per the aforesaid notification dated 30.08.1986, the post of Headmaster of ME/MEM/MV/Senior basic Schools shall be a promotional post and app ointment to the post shall be made on the basis of seniority-cum-efficiency on t he recommendation of the District Level Selection Committee to be constituted by the Director of Elementary Education. Further requirement is that the Committe e shall prepare a Sub-Division-Wise gradation list of teachers in order of senio rity showing the date of appointment, educational qualification, year of passing of training, age on the date of appointment, date of retirement etc., which sho uld be communicated to all incumbents with copies to all the concerned authoriti es for information. Selection for the post of Headmaster/ Headmistress in such Middle Schools shall be made strictly on the basis of seniority-cum-efficiency. The teachers having less than 10 (ten) years of continuous service shall not be considered for promotion. 7. The whole controversy centres around Clause-5 of the said notifi cation dated 30.08.1986. The respondent No.4 has also raised the issue of ineli gibility of the petitioner because of lack of qualification as prescribed under Rule 7 of the aforesaid notification. Thus for convenience Rules 5, 6 and 7 are quoted below:- (5) The teachers who have passed at least Matric/H.S.L.C., Normal or have at least Intermediate or its equivalent qualification or above and have successful ly undergone necessary training as may be prescribed by the Department shall onl y be considered for promotion. However, the teachers who have completed minimum of 15 (fifteen) years of continuous service but no facilities have been provide d to him/her for the prescribed training may also be considered for promotion pr ovided there is nothing adverse against them. Note Para 5 of the Notification was substituted vide Notification No.EPG.1000/89/11, Dated 20th September, 1990 but before substitution para 5 read as follows: ’5. The teachers who have successfully undergone nece4ssary training as may be prescribed by the Department shall only be considered for promotion. However , the teachers who have completed minimum of 15 (fifteen) years of continuous se rvice, but not facilities have to him/her for the prescribed training may also b e considered provided there is nothing adverse against them.’ (6) The Committee shall prepare a panel of selected teachers which shall rem ain valid for one year from the date of selection. (7) In case of Hindi/Classical/Language teachers having required minimum edu cational qualification and training may also be considered for promotion. 8. While it is the submission of Mr. K Sarma, learned counsel for t he petitioner that she duly conforms to the requirement of Rules 5 and 7, Mr. Bo ruah, learned counsel for the respondent No.4 submits that on a correct interpre tation of the said provisions, it will be apparent that the petitioner is not qu alified to hold the post of Headmistress. 9. As per requirement of Clause-5 of the said notification, the tea chers, who have passed at least Matric/HSLC/Normal OR have at least Intermediate OR its equivalent qualification or above and have successfully undergone necess ary training as may be prescribed by the Department shall only be considered for promotion. However, an exception has been made for those teachers, who have co mpleted minimum of 15 (fifteen) years of continuous service but no facilities ha ve been provided to him/her to undergo the prescribed training. In the instant case, the petitioner has contended by filing an additional affidavit that during her long tenure of service as teacher of the ME School, she has not been provid ed with any facility to undergo the training. Thus while it is the case of the respondent No.4 that she being BA with Normal, she is eligible and qualified to hold the post of Headmistress. It is the case of the petitioner that she is Int ermediate and having completed 15 (fifteen) years of continuous service but no f acilities having been provided to undergo the training, she is also eligible and qualified for the post of Headmistress. 10. Neither the State respondents nor the respondent No.4 has contro verted the plea of the petitioner that during her long tenure of service, she ha s not been provided with the facility to undergo training by the respondent auth orities. If that be so, under Clause-5 of the aforesaid notification, in my con sidered view, the petitioner is eligible for appointment as Headmistress. 11. This now leads the interpretation of Clause-7 of the said notifi cation. Mr. Borah, learned counsel appearing for the respondent No.4 submits th at since the petitioner is a Hindi Teacher, for her the training is a must. Nee dless to say that Rule 7 will have to be read alongwith Rule 5. When the rigour of requirement as envisaged under Rule 5 is relaxed for those teachers, who have completed 15 (fifteen) years of service but have not been provided any facility to undergo training, it cannot be said that the rigour of Rule 7 will be applic able without taking recourse to the proviso to Clause 5. Clause 7 has been quot ed above, which provides that in case of Hindi/Classical/Language teachers havin g required minimum educational qualification and training may also be considered for promotion. Admittedly, the petitioner was not provided with any facility t o undergo the training. If that be so, the petitioner will be covered the provi so to Clause 5. It is an admitted position that the petitioner has completed m ore than 15 (fifteen) years of continuous service as Hindi Teacher. Be it state d here that there is no distinction of Assistant Teacher and Hindi Teacher of ME School in the said notification. In case of secondary school, the discriminat ion sought to be made between the General Graduate Teachers and Classical Teache rs having graduate degree, has been held to be illegal and not maintainable by t he full bench decision of this Court vide judgment and order dated 25.06.2009 in WA No.144/2002 (Rukmini Borah -Vs- State of Assam & Ors.). 12. Mr. Sarma, the learned counsel for the petitioner has submitted that the authority has passed the order dated 22.05.2008 in gross-violation of t he provisions holding the field for promotion. It has already been seen that un der the notification dated 30.08.1986 the post of Headmaster/ Headmistress of ME /MEM/MV/Senior Basic Schools is a promotional post and appointment is to be made on the basis of seniority-cum-efficiency on the recommendation of the District Level Selection Committee. It is not the case of the respondents that the petit ioner was not found suitable for promotion. On a bare perusal of the impugned or der dated 22.05.2008, it will be seen that the respondent No.4 has been promoted on temporary basis and there is no indication about the recommendation of her c ase by the Selection Committee. From the materials on record and also from the written instruction furnished to the learned Sr. Counsel by the Director of Elem entary Education vide his aforementioned letter dated 17.07.2008, it appears tha t the case of the respondent No.4 had been forwarded by the Deputy Inspector of Schools, Biswanath vide his letter dated 19.12.2007 and after that the impugned order was passed promoting her to the post of Headmistress without considering t he case of the petitioner. 13. It is not the case of the respondents that the respondent No.4 h as been promoted following the due procedure of selection and taking into accoun t the candidatures of all other eligible candidates. In the written instruction furnished to the learned Sr. Standing Counsel, Education Department, the Direct or has enclosed the letter dated 30.11.2007, which was addressed to him by the D eputy Inspector of Schools. Along with the said letter, the statement of showin g sub-division wise gradation list was also furnished. On a bare reading of the said statement, it is revealed that the petitioner was placed at Serial No.1 of the said gradation list and the respondent No.4 was placed at Serial No.4. If that be so, it is not understood as to why the case of the petitioner has not be en considered. 14. For all the aforesaid reasons this writ petition is disposed of directing the Secretary to the Government of Assam in the Education, Elementary Department to take the grievance of the petitioner on record and pass appropriat e order after hearing both the parties involved. Entire exercise shall be carrie d out as expeditiously as possible, but at any rate, not later than 30th Septemb er, 2009. The Secretary shall decide the matter and pass a speaking order consi stently with the observations made above.