WP(C) 4801/2007 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. The challenge made in these writ petitions is the promotion of t he respondent No. 5 as Headmaster of the school in question. The writ petitions have been heard analogously and are being disposed of by this common judgment an d order. 2. The petitioners are the Assistant Teachers of Gauripur Girls’ M.E. Madra ssa. While the petitioner in the first writ petition was appointed as such in 19 72 before provincialisation of the school in 1977, the petitioner in the second writ petition was appointed in the year 1993. One Mrs. Renuka Chakravorty was th e regular Headmistress of the school. She expired on 01.04.04 while in service. After that one Smt. Minati Guha Ray was allowed to hold the charge of Headmistr ess w.e.f. 02.04.04. By the impugned Annexure-1 B order dated 22.11.04 , the res pondent No. 5 was promoted as Headmaster of the school on regular basis. 3. The petitioners being senior to the said respondent No. 5 their respecti ve years of joining the school being 1972, 1993 and 1997 respectively, the petit ioners alongwith some other Assistant Teachers of the school made Annexure-2 rep resentation dated 29.11.04 making a grievance against the same. In the represent ation it was stated that the respondent No. 5 being junior to the representation ists, they had objection to his promotion and that the consent for his promotion purportedly given by the teachers of the school was not for his promotion. It w as stated that the signatures of the teachers were obtained by the respondent No . 5 for the purpose of his enrollment in the gradation list. 4. By yet another representation dated 03.12.04, the said teachers of the s chool including the petitioners made grievance against the promotion of the resp ondent No. 5. However, in the said representation, the represtationists did not make any mention of obtaining their signatures by the respondent No. 5. It was s tated that the teachers did not make any recommendation for promotion of the res pondent No. 5. 6. Above representation was followed by Annexure-4 representation dated 04. 12.04. It was stated in the representation that the respondent No. 5 being junio rmost teacher of the school, could not have promoted as Headmaster. In that repr esentation, the representationists stated a bout obtaining their signatures by t he respondent No. 5 for the purpose of inclusion of names in the gradation list. 7. After the aforesaid representations, the District Elementary Education O fficer, Dhubri (respondent No. 3) by his Annexure-5 order dated 09.12.04 kept th e order of promotion of the respondent No. 5 in abeyance until further orders. Annexure-6 is the seniority list of the teachers of the school indicating the da tes of joining of the respondent No. 5 and the petitioners as 01.01.97, 05.07.72 and 24.06.93 respectively. 8. By Annexure-7 letter dated 28.02.05, the Executive Magistrate, Dhubri di rected the petitioner in the first writ petition and the respondent No. 5 to app ear before him on 04.03.05 in respect of an enquiry to be conducted on the basis of the complaint lodged regarding promotion of the respondent No. 5. The partie s were also directed to produce the relevant documents. Annexure-7 letter was fo llowed by Annexure-7 (A) letter of the same date refixing the date of hearing as 03.03.05. According to the petitioners, the parties appeared before the Execut ive Magistrate and the enquiry was conducted. 9. The teachers of the school were called by the District Elementary Educat ion Officer to attend his office on 10.05.06 alongwith all relevant documents. S ame was done by Annexure -8 letter dated 08.05.06. Be it stated here that in vie w of the stalemate created because of keeping the order of promotion in abeyance , the affairs of the school were being managed by the Block Elementary Education Officer as was entrusted by the District Elementary Education Officer. 10. After the aforesaid enquiry etc. the District Elementary Education Offic er passed Annexure-10 order dated 17.05.07 withdrawing the order dated 09.12.04 by which the order of promotion of the respondent No. 5 was kept in abeyance. Be ing aggrieved, the petitioners have filed the instant writ petitions. 11. The grounds urged in the writ petition to interfere with the promotion o f the respondent No. 5 as the Headmaster of the school are that the outcome of t he enquiry conducted has not been notified and the respondent No. 5 being the ju niormost teacher in the school, he could not have been promoted without consider ing the case of the senior teachers. According to the petitioners, the selection conducted by the District Selection Committee is illegal. 12. The respondent No. 5 has denied the contentions raised in the writ petit ion. It is the stand of the said respondent that he was promoted as Headmaster o f the school when the other teachers including the petitioners made it known by their Annexure-A representation dated 25.10.04 addressed to District Elementary Education Officer (DEEO) that they would have no objection in the event of promo ting the respondent No. 5 as the Headmaster of the school. According to the resp ondent No. 5 he had joined the post of Headmaster on 03.12.04 and the same was a ccepted by the authorities. His further stand is that the In-Charge Headmaster o f the school refused to hand over the charge to the petitioner. In the meantime, the order keeping in abeyance the promotion of the respondent No. 5 came into b eing. 13. It is also the stand of the respondent No. 5 that since he was regularly promoted as Headmaster of the school upon due selection, the authorities upon s crutiny of the matter and on conclusion of the enquiry, passed the impugned orde r withdrawing the earlier order staying his promotion. It has been urged by the respondent No. 5 that complaints lodged by the teachers of the school including the petitioners were only with a view to allow the In-Charge Headmaster of the school to continue as such. It is the stand of the respondent No. 5 that except him none of the senior teachers of the school is in possession of the requisite qualification for appointment/promotion as Headmaster. He has categorically stat ed that the petitioner in the first writ petition is not qualified to hold the p ost of Headmaster, he being only Assam High Madrassa passed contrary to the requ irement of Matric/HSLC with Normal training or at least Intermediate or its equi valent qualification or above and completion of necessary training as may be pre scribed by the Department. Thus, the stand of the respondent No. 5 is that he be ing qualified to hold the post of Headmaster and his case having been recommende d by the Selection Committee, the petitioners can not have any grievance against the same. 14. The petitioner in the first writ petition has filed an affidavit in repl y reiterating the stand in the writ petition. According to the reply affidavit, the respondent No. 5 obtained signatures of the petitioners and two other teache rs on a blank paper and the purpose was stated to be for enrollment of the teach ers in the gradation list. It is the stand of the petitioner that the respondent No. 5 made use of the said blank paper as the no-objection from the four teac hers. It has been denied by the petitioner that he does not possess the requisit e qualification. Further stand taken in the affidavit in reply is that the respo ndent No. 5 does not have to its credit the requisite length of service, i.e. 10 years at the time of his promotion. 15. The respondent No. 5 has also filed a reply affidavit clarifying the pos ition relating to allegation made by the petitioners that at the time of selecti on he did not have requisite length of service, i.e. 10 years. The respondent No . 5 was first appointed in another school called Sonahat M.E. Madrassa by order dated 13.05.85. He joined as such on the same date and his appointment was appro ved by the District Elementary Education Officer by his order dated 17.09.01. T hereafter by order dated 07.05.97 the service of the petitioner was regularized. Thus, according to the respondent No. 5, counting his service from 1985 (13.05. 85), he had the requisite length of service, i.e. 10 years at the time of the se lection for the post of Headmaster. 16. I have heard Mr. M.A. Sheikh, learned counsel for the petitioners as wel l as Mr. U.K. Goswami, learned Standing counsel, Education Department. I have al so heard Mr. U.K. Nair, learned counsel appearing for the respondent No. 5. I ha ve also gone through the materials available on record including the documents p roduced by the learned State counsel. 17. The documents produced by the learned Standing counsel, Education Depart ment include the purported no-objection submitted by the teachers of the school including the petitioners and the enquiry report dated 10.05.06 prepared by the District Elementary Education Officer. 18. Purported no-objection submitted by the petitioners and two other teache rs is dated 25.10.04 and the same is a hand written one (photo copy). The signa ture of Smt. Minati Guha Ray, the then In-Charge Headmistress and the petitione r in the first writ petition appear at two places. Prima facie there is also var iations in both the signatures. The hand written no-objection letter is also a haphazardly written one. 19. On perusal of the enquiry report dated 10.05.06 prepared by the District Elementary Education Officer, Dhubri, it appears that the petitioner in the fir st writ petition disputed his signature in the no-objection letter dated 25.10.0 4. Likewise, the petitioner in the second writ petition also stated before the e nquiry officer that she never signed any paper in connection with promotion of t he respondent No. 5. Another teacher namely Shri. Anwar Hussain Saikia also deni ed his signature in the no-objection letter. The enquiry officer upon reference to Annexure-2 representation dated 29.11.04 in which the petitioners and other t wo teachers stated that they had not given assent to the promotion of the respon dent No. 5 and that their signatures were obtained indicating that the same were required for the purpose of gradation list, found fault with the case of the re presentationists. According to him the complainants, i.e. the representationists which include the petitioners made self contradictory statements and by doing s o they tried to mislead the authorities. It is with this finding, the complaints lodged by the representationists have been rejected with the recommendation to clear the way for the respondent No. 5 to get his promotion as Headmaster of the school. 20. Two things emerged for consideration of this court. They are, whether th e senior teachers of the school numbering 4, in fact submitted their no-objecti on towards promotion of the respondent No. 5 and secondly, whether the responden t No. 5 has been promoted to the post of Headmaster on the basis of any selectio n. 21. Both the issues will have to judged on the basis of the fact that at le ast two of the teachers have approached this Court making a challenge to the pro motion of the respondent No. 5. It is their categorical stand that they never ga ve any consent to the promotion of the respondent No. 5 and there was some foul play towards obtaining their signatures by the respondent No. 5. They stuck to t heir plea before the enquiry officer who conducted the enquiry. The Executive Ma gistrate who also conducted the enquiry has not furnished any report. The enquir y report referred to above also reveals that the representationist all along con tended that they never gave any consent for the promotion of the respondent No.5 and that their signatures were obtained for some other purpose. 22. As against the aforesaid contention of the petitioners and other two tea chers, the enquiry officer in his report has held that the said contention is se lf contradictory. As noticed above, such a finding has been arrived at in view of the stand of the representationists that their signatures were obtained for t he purpose of preparation of gradation list. Upon a reference to the no-objectio n letter, the petitioner in the first writ petition and Shri Anwar Hussain Saiki a stated that the signatures appearing in the no-objection letter were not their signatures. The enquiry officer instead of making further verification of the m atter, simply returned the finding that there being self contradiction, the comp laint was liable to be rejected. Such a finding has been given on the basis of A nnexure-2 representation dated 29.11.04 in which the representationists stated t hat their signatures were obtained for the purpose of enrollment in the gradatio n list. Obtaining of signatures in blank papers does not necessarily mean that i n the NOC letter dated 25.10.04 the signatures of the said two teachers would be genuine. That aspect of the matter required further verification upon a referen ce of the signatures of the said two teachers. However, the DEEO, Dhubri did not do so and rejected the complaint. 23. The next question comes up for consideration is that as to whether after the purported no-objection furnished by the teachers of the school, the respond ent No. 5 was promoted on the basis of any selection as contemplated under the r ecruitment rules. It is true that the order of promotion dated 22.11.04 makes a mention of selection of the respondent No. 5 by the District Selection Committe e, but it is the case of the petitioners that no such selection was held. In fac t, learned counsel for the petitioners insisted for production of the records pe rtaining to such selection. Learned Standing counsel, Education Department did n ot produce the records. Thus, it is not known as to whether in fact, there was a ny selection for promotion of the respondent No. 5. In the order of promotion th ere is also reference to the Govt. letters dated 26.07.04 and 21.07.04. Said two letters have also not been produced. 24. As per the requirement of the procedure for promotion to the post of Hea dmaster of ME/ME Madrassa/MV and other Senior Basic Schools, the post of Headmas ter is a promotional post and shall be filled up on the basis of the seniority-c um-efficiency on the recommendation of the District Level Selection Committee. T he committee is to prepare a Sub-Division wise Gradation list of teachers in or der of seniority showing the date of appointment, educational qualification, yea r of passing of training, age on the date of appointment, date of retirement etc . The teacher having less than 10 years of continuous service shall not be consi dered for promotion. Educational qualification and training prescribed are Matri c/HSLC, Normal or at least Intermediate or its equivalent qualification or above . The teachers also must have training to their credit as may be prescribed by t he department. However, the teachers who have completed minimum 15 years of cont inuous service, but no facilities have been provided to him/her for prescribed t raining, may also be considered for promotion provided there is nothing adverse against them. 25. Nothing has been placed on record about initiation and completion of the aforesaid process towards promotion of the respondent No. 5 as Headmaster. This is not to say that no such process was initiated and completed. However, in abs ence of the records pertaining to the same, it is not discernible as to whether the process contemplated in the rules was been complied with towards promotion of the respondent No. 5. 26. As regards the educational qualification and length of service, same has been raised in respect of eligibility of the petitioner in the first writ petit ion and the respondent No. 5. While it is the case of the respondent No. 5 that the said petitioner is not qualified, he being only Assam High Madrassa examinat ion passed without the qualification of Normal, the petitioner contents that he respondent No. 5 having had less than 10 years of continuous service, was not el igible for promotion as Headmaster. 27. As regards the length of service to the credit of the respondent No. 5 t here is no dispute that he has got the same he having been appointed way back in 1985. The requirement as envisaged in the guidelines, is 10 years of continuo us service. There is no dispute that the said respondent is in continuous servic e ever since his appointment in 1985 and by the time he was promoted in 2004, he had 19 years of service. 28. As regards the educational qualification pertaining to the petitioner in the first writ petition, the dispute is relating to Normal qualification. Whi le it is the stand of the petitioner that Normal is a training as indicated in para-5 of the guidelines which can be dispensed with in respect of a teacher ha ving 15 years of continuous service and the petitioner having had more than 15 y ears of service, he is entitled to be considered for promotion as Headmaster, it is the stand of the respondent No. 5 that the qualification of Normal is a di stinct and separate training than the one envisaged under para-5 of the guidelin es in lieu of which 15 years of continuous service is prescribed. 29. During the course of hearing, learned counsel for the parties did not s eriously dispute that the petitioner being Assam High Madrassa examination passe d possesses equivalent qualification to that of Matric/HSLC. However, the whole dispute is relating to the qualification of Normal . Although the official resp ondents have furnished instruction to the learned Standing counsel, Education De partment to the effect that Normal is a requisite qualification for considera tion for promotion to the post of Headmaster, but no instruction has been furnis hed as to what Normal constitutes. It is not discernible as to whether Normal is a kind of training equivalent to one indicated in paragraph-5 of the guidel ines in lieu of which 15 years of continuous service has also been prescribed or the same is a separate kind of training and/or diploma/degree one is to obtain like that of Matric/HSLC. 30. Admittedly, the petitioner in the first writ petition is not Normal pa ss. If it is held to be a qualification like that of Matric/HSLC, then in that case he is not qualified for the post of Headmaster. However, if the contention of the petitioner as noticed above, is to be accepted, then the petitioner is d efinitely qualified for the post of Headmaster he having had more than 15 years of service. 31. In view of the above, the writ petitions stand disposed of with the foll owing directions: i) The Director of Elementary Education, Assam shall cause an enquiry relat ing to furnishing of no-objection letter dated 25.10.04 by the teachers of the school. If it is found that such no-objection was furnished by the teachers volu ntarily, the consequence thereof will follow. ii) The Director shall also find out as to whether in fact, the respondent N o. 5 was selected by the Selection Board following the due procedure of law. If it is found that in fact, he was selected, necessary consequence will follow sub ject to the aforesaid enquiry. iii) Depending upon the findings in respect of the above, if it becomes neces sary to hold another selection same shall be done by providing opportunities to all eligible teachers. In such an event, the said Director shall also deal with the question relating to educational qualification of the petitioner and as to whether he is eligible to sit in the selection for Headmaster. 32. The aforesaid exercise shall be carried out by the Director of Elementar y Education, Assam taking into account all the relevant materials and upon heari ng the teachers involved. The exercise shall be carried out and completed as exp editiously as possible keeping in mind that interest of the school, not later th an 30.04.08. 33. Till the above exercise is carried out, the respondent No. 5 be allowed to hold the charge of the Headmaster in view of fact that, he in the meantime took over the charge of the post of Headmaster on 19.05.07, i.e. before passing the interim order dated 04.06.07. However, it is made clear that the same will h ave no bearing in future claim of the respondent No. 5. 34. Both the writ petitions are disposed of leaving the parties to bear thei r own costs.