Dismissed

Sanjit Chakraborty and 4 Ors. v. the State of Assam and 5 Ors.

Gauhati HC16 Sept 2022WP(C)/4871/2019

Case brief

AI extract

What is this about?

Petitioners challenged the promotion of respondent no. 6 as Headmaster due to alleged violation of seniority and rules. The court held the petition was not maintainable for ineligible petitioners and found no illegality or procedural fault regarding the promotion for the eligible petitioner, dismissing the writ.

What did the court decide?

Writ petition stands dismissed. Promotion order of respondent no. 6 is upheld.

Sanjit Chakraborty and 4 Ors. Vs the State of Assam… — Education and Admissions | Gauhati HC (2022)

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Page No.# 1/7

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GAHC010152472019

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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)/4871/2019

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SANJIT CHAKRABORTY AND 4 ORS. S/O- LT RANJIT CHAKRABORTY, R/O- BIJNI, WARD NO. 3, PIN- 783390

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2: GAURANGA CHANDRA NAYAK S/O- LT NALINI CHANDRA NAYAK R/O- VILL- MONESWARI

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BIJNI P.O. BIJNI PIN- 783390

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3: SATYENDRA SARKAR S/O- LT SASADHAR SARKAR R/O- BONGAIGAON WARD NO. 10 PIN- 783380 DIST- BONGAIGAON ASSAM

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4: NIRMAL CHANDRA DAS S/O- INDRA MOHAN DAS R/O- VILL- NO. 2 CHAITANGURI P.O. BIJNI P.S. BIJNI DIST- CHIRANG ASSAM

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5: JURAN MANDAL S/O- SHRI NIBARAN MANDAL R/O- VILL NO. 2 CHAITANGURI

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P.O. BIJNI P.S. BIJNI DIST- CHIRANG ASSA

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VERSUS

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THE STATE OF ASSAM AND 5 ORS.

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REP. BY THE COMM. AND SECY., GOVT. OF ASSAM, SECONDARY EDUCATION DEPTT., DISPUR, GHY-6

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GHY-19 3:THE BODOLAND TERRITORIAL COUNCIL REP. BY ITS SECY. BTC KOKRAJHAR ASSAM

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4:THE DIRECTOR OF EDUCATION B.T.C. KOKRAJHAR ASSAM

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5:THE INSPECTOR OF SCHOOLS CHIRANG DISTRICT CIRCLE KAJALGAON BTC ASSAM

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6:PARPATI MANDAL HEAD MASTER BIJNI SHISHU KALYAN HIGH SCHOOL P.O. AND P.S. BIJNI DIST- CHIRANG BTAD ASSAM

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Page No.# 3/7

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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JUDGMENT & ORDER

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Advocates for the petitioners : Shri S.P. Choudhury, Advocate.

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Advocates for respondents : Shri Kaushik, Advocate.

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Ms. R.B. Bora, SC, BTC

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MS. S.G. Baruah, Advocate.

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Date of hearing : 16.09.2022 Date of judgment : 16.09.2022

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1. Heard Shri S.P. Choudhury, learned counsel for the petitioners. Also heard Shri Kaushik, learned counsel for the respondent nos. 1 & 2, Ms. R.B. Bora, learned Standing Counsel, BTC for respondent nos. 3, 4 & 5 and Ms. S.G. Baruah, learned counsel for respondent no. 6.

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2. Considering the subject matter in dispute and also the fact that the writ petition is of the year 2019 where pleadings have been exchanged, the same is taken up for disposal at the admission stage.

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3. Five numbers of petitioners have joined together in challenging the appointment of the respondent no. 6 to the post of Headmaster of the Bijni Sishu Kalyan High School in the district of Chirang.

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4. It is the case of the petitioners that they are all senior to the respondent no. 6 and are working as Assistant Teacher in the said School. However, by ignoring their seniority and in violation of the Rules governing the field namely the Assam Secondary Education (Provincialistion) Service Rules, 2003, (herein after Rules) the respondent no. 6 has been favoured with the promotion. It is the said order of promotion dated 05.03.2019 which is the subject matter of challenge in the present petition.

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5. Shri Choudhury, the learned counsel for the petitioners by referring to the Rules has drawn the attention of this Court to the definition of Graduate Teacher as would appear in Section 2(n). Further, reference has been made to Section 14 (2) and 14 (4) of the said Rules. The learned counsel contends that the respondent no. 6 do not fall within a meaning of Graduate Teacher as per the definition as the past services were in M.E. School and not in the schools enumerated in the said definition. So far as Section 14 is concerned pertaining to recruitment to, inter alia the post of Headmaster, the learned counsel has submitted that there is a requirement of possessing 10 years of teaching experience as a Graduate Teacher and since the respondent no. 6 fails in the first requirement as a Graduate teacher, the promotion has been made in violation of the Rules. The learned counsel accordingly submits that impugned order be interfered with and the post be filled up strictly in accordance with law.

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6. Shri Kaushik, the learned counsel for the Department submits that since this Court is within the territorial limits of the Bodoland Autonomous Council, the same would be defended by the said Council.

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7. Ms. Bora, the learned Standing Counsel, BTC however defends the order of promotion of the respondent no. 6. Countering the argument of the petitioners regarding the definition of Graduate Teacher as would appear from Section 2 (n) of the Rules, the learned Standing Counsel has submitted that Science Graduate Teacher

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are given the graduate scale of pay and treated to be Graduate Teacher and since the respondent no. 6 was a Science Graduate Teacher, her promotion has been done in accordance with law.

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8. Ms. Baruah, the learned counsel for the respondent no. 6 before defending the promotion raises an objection towards the maintainability of the writ petition. The learned counsel contends that out of five numbers of petitioners, four numbers do not even possess the minimum B. Ed degree and therefore, are ineligible to hold the post of Headmaster and accordingly they do not have any locus to challenge the present promotion. So far as the respondent no. 5 is concerned, attention of this Court has been drawn to the prayer in the writ petition as per which, a prayer has been made to appoint the petitioner no. 1 as the In-charge Headmaster in terms of the seniority.

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9. As regards the merit of the challenge, the learned counsel for the respondent no. 6 has submitted that the said respondent duly fulfills all the requirements for being promoted to the post of headmaster. By referring to the affidavit-in-opposition of the respondent no. 6 filed on 26.10.2021, the learned counsel has submitted that the initial appointment of the respondent no. 6 was 23.03.1992 as a Science Graduate Teacher and by the time the consideration was made, the respondent no. 6 already had the requisite experience. As regards, the contention concerning Rule 2 (n) of the Rules, the learned counsel has submitted that the same has already been clarified by the BTC that Science Graduate Teacher are given graduate scales and are treated as Graduate Teacher for all purposes.

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10. After hearing the parties and on perusal of the materials on records, this Court finds force in the contention made by the respondents that the writ petition is not maintainable so far as four petitioners are concerned. However, so far as the eligible petitioner no. 5 is concerned, the contention is that the respondent no. 6 does not

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meet the requirement of being a Graduate Teacher in terms of Rule 2 (n) and further that even if the respondent no. 6 is deemed to be a Graduate teacher, he does not have the minimum requisite experience.

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11. Both the aforesaid contentions do not appear to be correct in view of the fact that Science Graduate Teacher though serving in M.E. Schools are given graduate scales of pay and treated as Graduate Teacher which has been clarified by the BTC in its affidavit. As regards the minimum requirement of experience, the appointment letter itself has been made a part of the records as per which, the initial date of appointment of the respondent no. 6 is 23.03.1992 and therefore, there is no shortcoming on that part.

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12. A writ court in exercise of an extra ordinary jurisdiction is required to examine the decision making process and in the instant case, it appears that the relevant factors were taken into consideration before appointing the respondent no. 6 as the Headmaster of the school. This Court does not find any apparent fault or irregularity or illegality in the said process.

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13. The Hon’ble Supreme Court in the landmark case of Tata Cellular Vs. Union of India reported in (1994) 6 SCC 651 has laid down as follows:

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"74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of judicial review is made, but the decision making process itself.

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In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 at 154 Lord Brightman said :

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"Judicial review, as the words imply, is not an appeal from a decision, but review of the manner in which the decision was made. Judicial Review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be

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itself guilty of usurping power."

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In the same case Lord Hailsham Commented on the purpose of the remedy by way of judicial review under RSC Ord 53 in the following terms :

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This remedy, vastly increased in the extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law to substitute the Courts as the bodies making the decisions. It is intended to see that the relevant authorities are their powers in a proper manner. (p. 1160)

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R v. Panel on Take-overs and mergers, ex p Datafin plc. Sir John Donladson MR commented :

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'an application for judicial review is not an appeal'.

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In Lonrho plc v. Secretary of State for Trade and Industry. Lord Keith said : 'Judicial review is a protection and not a weapon'. It is thus different from an appeal. When hearing an appeal the Court concerned with the merits of the decision under appeal. In Re Amin Lord Fraser observed that :

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"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made ..... Judicial review is entirely different from an ordinary appeal. It is made effective by the Court quashing an administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."

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14. Accordingly the writ petition stands dismissed.

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JUDGE

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Comparing Assistant

Sanjit Chakraborty and 4 Ors. v. the State of Assam and 5 Ors.

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Sanjit Chakraborty and 4 Ors. v. the State of Assam and 5 Ors.

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