Allowed

Paresh Chandra Mazumdar and 2 Ors. v. the State of Assam and 7 Ors.

Gauhati HC4 Feb 2020WP(C)/2172/2018

Case brief

AI extract

What is this about?

The High Court examined a challenge to promotion orders where respondents were preferred over petitioners due to a new graduation requirement. The Court held that the requirement violated service rules as it lacked State Government approval and Gazette publication. The impugned orders were set aside, and a fresh selection process was directed.

What did the court decide?

Impugned promotion order dated 22.03.2018 set aside. Promotions of respondents 5, 6, 7 & 8 set aside. Order directed to hold fresh DPC considering non-graduate petitioners within two months.

Paresh Chandra Mazumdar and 2 Ors. Vs the… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010069422018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2172/2018

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1:PARESH CHANDRA MAZUMDAR AND 2 ORS.

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PIYALI PHUKAN NAGAR, PO-BAMUNIMAIDAN, GUWAHATI, DISTKAMRUP(M), ASSAM, PIN-781021

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2: DEBABRATA KALITA HOUSE NO.42 SANTIPUR PROFESSORPARA PO/PS-BHARALUMUKH GUWAHATI DIST-KAMRUP(M) ASSAM PIN-781009

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3: SADHI RAM CHETIA VILL-BARHAITING CHAPARI GAON PO-BARHAITING DIST-SIVASAGAR ASSAM PIN-78564

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VERSUS

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1:THE STATE OF ASSAM AND 7 ORS.

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NOTICE THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF SECONDARY EDUCATION, DISPUR, GUWAHATI-781006

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2:BOARD OF SECONDARY EDUCATION ASSAM REPRESENTED BY THE SECRETARY TO THE BOARD OF SECONDARY EDUCATION BAMUNIMAIDAN GUWAHATI-21

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3:THE CHAIRMAN BOARD OF SECONDARY EDUCATION ASSAM BAMUNIMAIDAN GUWAHATI-21

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4:THE SECRETARY BOARD OF SECONDARY EDUCATION ASSAM BAMUNIMAIDAN GUWAHATI-21

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5:HEM KANTA DAS SUPERINTENDENT CERTIFICATE BRANCH THE BOARD OF SECONDARY EDUCATION ASSAM BAMUNIMAIDAN GUWAHATI-21

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6:JATIN CHANDRA DAS SUPERINTENDENT EXAMINATION BRANCH THE BOARD OF SECONDARY EDUCATION ASSAM BAMUNIMAIDAN GUWAHATI-21

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7:KRISHNA KANTA MEDHI SUPERINTENDENT REGISTRATION BRANCH THE BOARD OF SECONDARY EDUCATION ASSAM BAMUNIMAIDAN GUWAHATI-21

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8:LABANYA PROVA RABHA SUPERINTENDENT RECOGNITION BRANCH THE BOARD OF SECONDARY EDUCATION ASSAM

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BAMUNIMAIDAN GUWAHATI-2

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Advocate for the Petitioner : MR. U K DAS

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Advocate for the Respondent : SC, SEC. EDU.

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BEFORE

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HON’BLE MR.JUSTICE N. KOTISWAR SINGH order

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04-02-2020

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Heard Mr. U.K. Das, learned counsel for the petitioners. Also heard Mr. T.C. Chutia, learned Standing Counsel, Board of Secondary Education, Assam, (SEBA) for the respondent nos. 2, 3 & 4, Mr. M. Deka, learned counsel for the respondent nos. 5, 6 & 8, Mr. D.K. Roy, learned counsel for the respondent no.7 and Ms. N.M. Sarma, learned Government Advocate, Assam, for the respondent no.1.

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In this petition the petitioners have challenged the promotion order issued by the respondent no.4 on 22.03.2018 in favour of the respondent no.5, 6, 7 & 8 from the post of Assistant Superintendent to the next higher post of Superintendent.

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The grievance of the petitioners is that the cases of the petitioners were never considered by the authorities on the alleged ground that the petitioners are not graduates. Purportedly, a resolution was taken by the Board of Secondary Education, Assam, (SEBA) on 08.01.2018 stipulating the qualification required for promotion to the post of Superintendent to be a graduate in Arts/Science/Commerce.

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The petitioners admittedly are under graduates but claim to be senior to the

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respondent nos.5, 6, 7 & 8. There is no such mention under the relevant service rules that the post of Superintendent has to be filled up from amongst the graduate Assistant Superintendents and such insistence by the authorities to consider only graduate Assistant Superintendents for promotion to the post of Superintendent which qualification has not yet been incorporated in the rules is impermissible, contend the petitioners.

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As per Section 24 of the Assam Secondary Education Act, 1961, which governs the affairs of the Board of Secondary Education Assam constituted under the aforesaid Act, the Board has been empowered to make regulations for the purpose of carrying out the provisions under the aforesaid Act. Section 24(2)(d) provides for making Regulation by the Board in the matters relating to qualification, appointment and remuneration of examiners and papers-setters and others. It is under the aforesaid provision of Section 24 of the Act that the SEBA has made the service regulation, namely, Service Regulation of the Board, 2016. As per the aforesaid “Service Regulation of 2016”, the post of Superintendent is to be filed up by way of promotion on the basis of seniority-cum-merit from the rank of Assistant Superintendent of the Board, provided that a candidate for such post possess at least 3 (three) years experience as an Assistant Superintendent of the Board. The aforesaid provision is accordingly quoted as below:

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“(i) Superintendents:

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Recruitment to the post of Superintendent shall ordinarily be made by promotion on the basis of seniority-cum-merit from the rank of Asstt. Superintendent of the Board, provided that a candidate for such posts must possess at least 3 (three) years experience as Asstt. Superintendent in the Board.”

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From a reading of the aforesaid Service Regulations, it is clear that there is no

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requirement of possession of graduation for the purpose of promotion to the post of Superintendent. In other words, any Assistant Superintendent, having 3 (three) years of experience in the said grade, whether graduate or not, would be eligible for promotion to the post of Superintendent on the basis of seniority-cum-merit. The requirement of possession of graduation, however, has been applied by the authorities in terms of a Resolution taken by the SEBA in their meeting held on 08.01.2018 vide Resolution No.B16/10/27. The said resolution reads as follows:

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“.......

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Agenda Item No.24: Any other item with the prior permission from the Chair:

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(i) Qualification for promotion to the Post of Superintendent : The Board members discussed about the qualification required for promotion to the post of Supdt. After detail discussion the Board meeting decided that the minimum qualification for promotion to the post of Supdt. be Graduate in Art/Science or Commerce.”

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It may be mentioned, however, that though the Board was competent to take such Resolution, before such a change is brought in the service rules as mentioned in Section 24 of the Assam Secondary Education Act, 1961, such alteration in the Regulation shall be subject to approval by the State Government and must be published in the Official Gazette as mentioned in the proviso to Section 24 of the Act referred to above. In other words, if any amendment or alteration to the Service Regulations is sought to be made, such amendment must be approved by the State Government and also be published in the Official Gazette. Unless the aforesaid 2 (two) conditions are complied with, such change sought to be made by the Board cannot be incorporated in the service regulations and also

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cannot be given effect to.

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Mr. T.C. Chutia, learned Standing Counsel, SEBA, however, submits that the said resolution of the Board, taken on 08.01.2018 mandating the requirement of graduation, has been already approved by the State Government on 11.11.2019. However, learned Standing Counsel is not able to say as to whether the same has been published in the Official Gazette or not. In absence of any such Gazette, which is not yet published incorporating the said amendment, one of the conditions required under Section 24 is not fulfilled. Further, it may be mentioned that the impugned promotion order was made on 22.03.2018, whereas the approval was given by the State Government on 11.11.2019 i.e. after the promotions were effected. In other words, the said resolution was given effect to, even before it was approved by the State Government, which is not permissible.

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Thus, in the opinion of this Court the aforesaid change made in the service rules for promotion to the post of Superintendent by insisting upon the possession of graduate degree in Arts/Science/Commerce cannot be made applicable till the same is approved by the State Government and published in the Official Gazette and hence cannot form a part of the recruitment rules. In such an event, it can be said that the omission of the petitioners for considering them for promotion to the post of Superintendent is vitiated as at that time when the promotion of the private respondents were considered in terms of Board Resolution, and appointments were made in the year 2018, the aforesaid change in the service rules sought to be made by the Board has not become part of binding Regulations. At best, it could be considered to be mere a proposal when the selection process was conducted and promotions made. The requirement of possession of Bachelors Degree in Arts/ Science/Commerce can become a part of the Regulation only after it is

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approved by the State Government and published in the official gazette as mandated under Section 24 of the Assam Secondary Education Act, 1961.

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From the above what can be concluded is that the Board had applied certain criteria which did not form part of the Regulation when consideration was made for promotion to the post of Superintendent from the lower post of Assistant Superintendent and the petitioners’ cases were ignored on the ground that the petitioners were not graduates, which cannot be said to be in conformity with the mandatory requirements of the Regulation.

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Accordingly, this Court is of the view that aforesaid consideration and promotion of the private respondents by ignoring the petitioners is vitiated and accordingly, the impugned order dated 22.03.2018 is liable to be set aside.

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Since the aforesaid resolution of the SEBA has been merely approved and not yet published in the Official Gazette, which are the requirements of law for effectuating any such amendment in the service rules as mentioned in the Service Regulation of the Board, 2016, the respondent authorities i.e. SEBA are directed to hold a fresh selection process for considering the case of the petitioners along with other similarly situated persons as these vacancies to the promotional posts arose prior to effectuation of the Regulation as mentioned above. It is further made clear that the case of the petitioners shall not be rejected merely on the ground that they are not graduates, as there is no such binding stipulation in the Service Regulations at this stage as referred to above. Such stipulation can become a part of the Regulation only when the same is approved and published in the Official Gazette, which has not been done as mentioned above.

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Accordingly, for the reasons discussed above, the present petition is allowed. Impugned order dated 22.03.2018 is set aside. As a consequence, the promotion of the respondent nos. 5, 6 7 & 8 are also set aside. The respondent authorities are directed to hold a fresh DPC for promotion to the posts of Superintendent and to consider the case of the petitioners also along with others eligible candidates as per rules as directed above.

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As the promotions of the respondent nos. 5, 6 7 & 8 are set aside, they will not be allowed to continue in the post of Superintendents on regular basis. However, they can continue to work merely on In-charge basis till regular promotions are made by the SEBA authorities as directed above, so as to not to disturb the work of the SEBA. The aforesaid exercise shall be completed within a period of 2 (two) months from the date of receipt of a certified copy of this order.

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JUDGE

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Comparing Assistant

Paresh Chandra Mazumdar and 2 Ors. v. the State of Assam and 7 Ors.

Case brief

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Paresh Chandra Mazumdar and 2 Ors. v. the State of Assam and 7 Ors.

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