WP(C) 798/2005 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) Challenge in this writ petition is made against the order dated 25.09.20 03 issued by the Inspector of Schools, Dhubri District Circle, (’DDC’ for short) , Dhubri whereby and whereunder the name of the petitioner has been dropped from the provisionally approved list of teaching staff of the school though her name appeared at Sl. No. 5 in the resolution No. 2 dated 12.03.2002 of the Managing Committee of the school sent to the Inspector of Schools, DDC, Dhubri for approv al of the appointments of the teachers/employees. 2. Before going into the controversy it would be appropriate to narrate the facts of the case in a nutshell- Helagari Bholanath High School was established for imparting co-education meant for both boys and girls. The necessity of teaching staffs being fall short in co mparison to student strength, the Managing Committee vide resolution No. 1 of th e Executive Meeting dated 24.11.1997 appointed the petitioner as assistant teach er of the school being found eligible and qualified for the said post and accord ingly she joined in the school on 25.11.1997 and continuing as such uninterrupte dly till date. The said school was recognised by the Board of Secondary Educatio n Assam (’SEBA’ for short) for class IX and X on 28.10.1997 and 27.11.1998 respe ctively. Under the Regulation for recognition of High School it is mandatory tha t for the purpose of recognition of a co-educational school, the school should h ave at least one lady teacher and the petitioner being a female teacher, the com petent authority recognised the school. Thereafter the Managing Committee vide r esolution No. 2 dated 12.03.2002 proposed the name of 10 (ten) teachers for bein g provisionally approved by the Inspector of Schools for the purpose of Provinci alisation of the school and in the said list, petitioner’s name appeared at seri al No.5. But the Inspector of Schools while provisionally approving the list of the teachers vide order dated 25.09.2003 dropped the name of the petitioner from the approved list thereby causing an apprehension in the mind of the petitioner that her service would not be provincialised as and when the school is provinci alised and hence the writ petition. 3. Heard Mr. A.M. Buzarbarua, learned counsel appearing for the petitioner. Also heard Mr. M.K. Mishra, learned Standing Counsel, Education Department appe aring for the respondents. 4. Referring the resolution No. 2 dated 12.03.2002 (Annexure 4 to the writ petition), Mr Buzarbarua, learned counsel appearing for the petitioner would con tend that her name appeared at Sl. No. 5 in the said resolution for approval of her appointment which was sent to the Inspector of Schools, DDC alongwith the na me of other teachers and employees serving in the school but the Inspector of Sc hools, DDC dropped her name from the list at the time of approval of the appoint ments of the existing staffs thereby deprived her in getting her service provinc ialised as and when the school is provincialised. The order dated 25.09.2003 impugned in the writ petition thus required interference in order to enable the petitioner to get her service provincialised. 5. The counsel would further contend that the Regulations for Recognition o f High Schools and High Madrasas, 1988 (Regulation 1988) provides that in co-edu cational school/madrasa at least one teacher shall be female. The list of teache rs sent to the Inspector of Schools, DDC, Dhubri, would demonstrate that the pet itioner is the only female teacher serving in the school which is mandatory in o rder to get the recognition. The recognition of the school was accorded by the B oard Of Secondary Education Assam considering the existence of a female teacher and therefore the Inspector of Schools has committed illegality in dropping her name from the list of appointments approved vide order dated 25.09.2003 which re quire interference being arbitrary, discriminatory and illegal. 6. An affidavit-in-opposition has been filed by the respondent No. 2, Direc tor of Secondary Education Assam supporting the case of the petitioner contendin g that as per provision of Assam Secondary Education (Provincialisation) Rules, 1979 it is mandatory to appoint at least one lady teacher for the co-educational school. The name of the petitioner appeared in the inspection report submitted to the SEBA by the Inspector of Schools, DDC, Dhubri wherein in the particulars of the teaching staff, her name appeared at SL. No. 7 whereas the names of the t eaching and non-teaching staff of the school appearing in the approval order doe s not tally with the inspection report which reflected some irregularity and the reby overruled the mandatory requirement of one lady teacher in a co-educational school, inasmuch as, one lady teacher must exist in the staff pattern of the sc hool without which requirement, provincialisation of the schools would not be ac corded. It has further been admitted that in the impugned order dated 25.09.2003 the name of the petitioner has been dropped and some new names are included and that there are discrepancies in the inspection report and the approved order da ted 25.09.2003. 7. Another affidavit has been filed by the respondent No.4, Inspector of Sc hools, DDC, Dhubri supporting the action of the earlier Inspector of Schools, DD C, Dhubri dropping the name of the petitioner from the approved list of appointm ent of teachers/ employees contending that the staff pattern of the schools and the requirement of recognition of the schools requires two numbers of Science Gr aduate Teachers and two numbers of Arts Graduate Teachers apart from the Headmas ter in a school of three classes and the School in the present case in hand is a three classes school but there are three Arts Graduate Teachers and thereby one Arts Graduate teacher is in excess and the incumbents appeared at Sl. No. 2 and Sl. No. 3, Balendra Chandra Nath and Md. Mansab Ali Sk respectively who had joi ned the school on 07.01.1987 and 17.11.1993 whereas the petitioner had joined in the school on 25.11.1997 who is junior to the abovementioned two teachers whose name appeared at Sl. No. 2 and 3 and thus the name of the petitioner has right ly been dropped from the list of appointment of approved teachers thereby contro verting the requirement of one female teacher where education is imparted in a c o-education school since it is the Board of Secondary Education Assam who is emp owered to recognise the school and not by the Director of Secondary Education, A ssam and/or by the Inspector of Schools. It has further been contended that th e school having not been provincialised, the writ petition is premature and thu s prayed for dismissal of the writ petition. 8. Considered the arguments advanced. Perused the pleadings of the contesti ng parties alongwith its annexure. The reason and decisions thereof. Admittedly the school was a venture school and it is a co-educational school. Th e managing committee considering the ratio of the strength of the students and k eeping in mind the school being co-educational school appointed the petitioner a s Assistant teacher on 24.11.1997 as a lone female teacher in the school which i s a mandatory requirement in order to get the recognition of the school from the SEBA and subsequent thereto provincialisation of the school. Therefore it would be appropriate to refer the relevant rules in order to determine the case in ha nd. 9. Regulation for Recognition of High Schools, High Madrasa, 1988 has been framed in exercise of powers conferred under Section 24(1) and (2)(f) of the Ass am Secondary Education Act 1961 and it has statutory force under the Regulations 1988 (in short Regulations 1988). In the said Regulations certain requirement i s provided in order to get the recognition of High Schools and High Madrassas wh erein there is a column named and styled as Qualifications Of Teaching Staff. In the said column there is a note. Note (2) being relevant is quoted hereunder: (2) In a Girls school/madrasa with a single section in each class at le ast two teachers shall be female and in a co-educational school/madrasa at least one teacher shall be female. For schools/madrasas with more than one section, m inimum ratio of female teachers for Girls and co-educational schools/madrasa sha ll be 1/3 and 1/6 respectively 10. Similarly the Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules 1979 has been framed in exercise of powers c onferred by Section 7 of the Assam Secondary Education (Provincialisation) Act 1 977 and the same has also a statutory force. Rule 3 of the Rule 1979 provides fo r eligibility of High Schools for Provincialisation, wherein Rule 3(c) provides: (c) Graduate teachers, excluding the Headmaster and the Assistant Headm aster equal to the number of sections in the upper three classes and at least on e of them must be a graduate in science. In case of a school where there is co-e ducation, there should be at least one graduate lady teacher. 11. Now the question that requires for consideration as to whether the Note appended in the Regulation 1988 can be acted upon. The question of foot-note cam e up for consideration before this Court in the case of Priyadhar Nath-Vs- State of Assam and others reported in 1995 (1) GLR 291 (DB). In Priyadhar (supra), at para 5 this Court has held thus: 5. In respect of the foot-note, a Bench of five Judges of the Supre me Court has, in Channabasavaih -vs- State of Mysrore, AIR 1965 SC 1293, held th at the foot-note is not intended to by-pass while considering the rule to which it is appended. In Tara Singh -vs- State of Rajasthan, AIR 1975 SC 1487, a Bench of three Judges of the Supreme Court had held that the notes are part of the ru les because they are for the guidance of the authorities. They are not inconsist ent with the rules but are intended to fill up gaps where the rules are silent. The notes to the rule make explicit what is implicit in the rules. In Smt. Mary Oommen -vs- the Manager, MGM High School, AIR 1987 SC 1163, it has been held by a two Judges Bench that, although a note to a rule does not have any binding eff ect, it does indeed have a persuasive force. It cannot be ignored that the note has come as an appendage to a rule for clarificatory purpose though it does not form part of the rule. 12. Considering the note appended in the Regulation 1988 and as decided by t he Court in Priyadhar (Supra), the note has a binding effect which is indeed man datory that in co-education school at least one teacher should be female in orde r to get the recognition. In the case in hand, the school get the recognition sh owing the petitioner as a lady teacher and therefore it is mandatory duty of the Inspector of Schools, DDC, Dhubri to include the name of the petitioner while p rovisionally approving the appointment of the teaching staffs of the school whic h has not been adhered to thereby dropping her name from the appointment of teac hing staff provisionally approved and as such the affidavit-in-opposition filed by the Inspector of Schools, DDC, Dhubri cannot be accepted and hence turned dow n. 13. Similar is the Rule 1979, wherein, Rule 3(c) provides that where there i s co-education there should be at least one graduate lady teacher. It is mandato ry rule framed in exercise of power under Section 7 of the Assam Secondary Educa tion (Provincialisation) Act, 1977 and has a statutory force in order to get the school provincialised, meaning thereby that the services of the existing teache rs shall be provincialised. Therefore the Provisions in the aforesaid Regulation s 1988 and the Rule 1979 should be adhered to in order to get the recognition an d provincialisation of the school. This Court is thus inclined to accept the wri t petition. The Inspector of Schools, DDC, Dhubri is directed to issue an addend um incorporating the name of the writ petitioner in the list of provisionally ap proved staff/teacher as was ordered vide impugned order dated 25.09.2003. The af oresaid direction shall be carried out within a period of 1 (one) month from the date of receipt of a certified copy of this judgment and the SEBA would do the needful with a further direction to the respondent Nos. 1 and 2 to adhere to Rul e 3(c) of the Rules 1979 while provincialising the school in question. 14. In the result, the writ petition is allowed with the above direction. Th e parties are left to bear their own costs.