Mitali Sonowal Vs the State of Assam and 4 Ors.

REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION DEPARTMENT), ASSAM CIVIL SECRETARIAT, BLOCK-C, DISPUR, GUWAHATI-6.

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2:STATE SELECTION BOARD FOR SELECTION OF PRINCIPAL IN PROVINCIALISED HIGHER SECONDARY SCHOOLS REPRESENTED BY ITS CHAIRMAN-CUM-JOINT SECRETARY TO THE GOVT. OF ASSAM SECONDARY EDUCATION DEPARTMENT DISPUR GUWAHATI-6.

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3:THE DIRECTOR OF SECONDARY EDUCATION ASSAM CUM MEMBER SECRETARY STATE SELECTION BOARD ASSAM KAHLIPARA GUWAHATI-19.

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4:THE INSPECTOR OF SCHOOL JORHAT DISTRICT CIRCLE JORHAT K.K. JANDIQUE PATH JORHAT ASSAM-785001.

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5:DIBRUGARH UNIVERSITY REPRESENTED BY THE VICE CHANCELLOR DIBRUGARH ASSAM PIN- 786004

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Advocate for the Petitioner : MR. S K DAS, MR D BARMAN Advocate for the Respondent : SC, SEC. EDU.,

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Page No.# 2/10

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BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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Date of hearing : 03.01.2025

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Date of Judgment : 03.01.2025

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JUDGMENT & ORDER(ORAL)

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Heard Mr. S. K. Das, learned counsel for the petitioner. Also heard Mr. Nayanjyoti Khataniar, learned standing counsel, Secondary Education Department, appearing on behalf of respondents No. 1 to 4; and Mr. A. R. Mazumdar, learned counsel, appearing on behalf of respondent No. 5.

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2. The challenge in the present proceeding is to an order, dated 20.03.2024, passed by the Director, Secondary Education Department, Assam, rejecting the claim of the petitioner to hold the charge of the post of Principal of Padma Ram Sarmah Higher Secondary School, Jorhat, on the ground that the petitioner, herein, had acquired her MA Degree without obtaining prior permission to pursue the said course from the departmental authorities.

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3. The petitioner, herein, was initially appointed as an Assistant Teacher(Science) vide order, dated 27.10.1998, in Padma Ram Sarmah Higher Secondary School, Jorhat. The petitioner while working as such in the said school, had pursued her MA Degree in Assamese in Distance Mode from Dibrugarh University in the year 2019. It is contended by the petitioner that she had, for the said purpose, obtained a “No Objection Certificate(NOC)” from the Office of the Inspector of Schools, Jorhat. The petitioner, had, during the period 2017-2019, also pursued her B.Ed. Degree from the District Institute of Education & Training(DIET), Titabor, Jorhat, on being deputed for pursuing the said course by the departmental authorities. The petitioner, accordingly, acquired her MA Degree as well as her B.Ed. Degree from recognized Institutions.

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4. A vacancy arising in the post of Principal of Padma Ram Sarmah Higher Secondary School, Jorhat, on the incumbent, therein, proceeding on retirement, on attaining the age of superannuation, w.e.f. 28.02.2022, and there being a move to allow one of the colleagues of the petitioner, viz. Bornali Saikia Kakoti, to hold the charge of the post of Principal of the said school; the petitioner, herein, submitted a complaint before the departmental authorities, assailing the eligibility of said Bornali Saikia Kakoti on the ground that she while being in service, had pursued her B.Ed. Degree without obtaining prior permission from the departmental authorities. The said complaint of the petitioner led the Director, Secondary Education Department, Assam, in allowing the Inspector of Schools, Jorhat, to be the in-charge Principal of the said school. Being aggrieved, said Bornali Saikia Kakoti had instituted a writ petition being WP(c)5258/2022 before this Court, inter alia, claiming for her appointment as the in-charge Principal of the said school.

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5. The present petitioner had instituted an interlocutory application being IA(c)3486/2022 in the said matter and she was also heard by this Court. This Court, on consideration of the issues arising before it, had proceeded vide order, dated 16.02.2023, to dispose of the said writ petition i.e. WP(c)5258/2022 and the connected interlocutory application so filed by the present petitioner; by directing the Director, Secondary Education Department, Assam, to give an opportunity of hearing to said Bornali Saikia Kakoti as well as the present petitioner and other eligible teachers of the school, in question, to hold the charge of the post of Principal of Padma Ram Sarmah Higher Secondary School and pass a reasoned order thereon.

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6. In pursuance of the said directions passed by this Court; the Director, Secondary Education Department, Assam, after hearing said Bornali Saikia Kakoti and the present petitioner, herein, proceeded to pass an order, dated 04.10.2023,

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Page No.# 4/10

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rejecting the claims so made by both of them, to hold the charge of the post of Principal of the said school on the ground that the petitioner, herein, as well as said Bornali Saikia Kakoti had pursued their respective academic courses without obtaining prior permission from the departmental authorities. Accordingly, the Inspector of Schools, Jorhat, was allowed to continue to hold the charge of the post of Principal of the said school till regular Principal was appointed in the school, in question.

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7. Being aggrieved by the said order, dated 04.10.2023, the petitioner assailed the same by way of instituting WP(c)6938/2023, before this Court. This Court, upon examining the matter; was pleased vide order, dated 05.12.2023, to dispose of the said writ petition, inter alia, holding that even if a qualifying degree is obtained by a Government employee without obtaining prior/previous permission from the appointing authority; the same at best, may be a misconduct, but, it cannot be a reason that the degree itself will be an invalid degree.

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8. Basing on the said conclusion; the order, dated 04.10.2023, came to be set aside by this Court and the matter was remanded back to the Director, Secondary Education Department, Assam, for a fresh consideration of the claim of the petitioner, herein, to hold the charge of the post of Principal of the said school. This Court had further provided that the Director, Secondary Education Department, Assam, while considering the issue now remanded back to her, shall take note of the proposition of law laid down by this Court in its judgment & order, 28.09.2023, in IA(c)2615/2023, to the effect that a MA Degree even if obtained without prior/previous permission from the appointing authority; the same would not make the degree itself to be an invalid degree. Further, it was provided that the contention of the learned counsel for the petitioner that the petitioner had pursued her MA degree after having obtained prior permission from

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Page No.# 5/10

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the jurisdictional Inspector of Schools, be also taken note of.

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9. In pursuance of the directions passed by this Court vide order, dated 05.12.2023, in WP(c)6938/2023, the Director, Secondary Education Department, Assam, vide order, dated 23.03.2024, proceeded to consider the issue involved and on such consideration, again reiterated the earlier view taken by her in the matter and holding that the petitioner, herein, had pursued her Masters Degree course from the Dibrugarh University in Distance Education Mode during her service tenure, without obtaining prior/previous permission from the departmental authorities; it was held that the petitioner had violated the provisions of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965, which was deemed to be a misconduct. Accordingly, the claim of the petitioner for holding the charge of the post of Principal of the said school, came to be rejected.

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10. Being aggrieved, the petitioner has instituted the present proceeding before this Court.

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11. Mr. Das, learned counsel for the petitioner, by reiterating the facts noticed hereinabove, has submitted that the petitioner, herein, had pursued her Masters Course in Assamese in Distance Mode from Dibrugarh University and on completion of the same, had obtained her MA degree in Assamese, which was contended to be a valid degree obtained from a recognized institution. The learned counsel has further submitted that the respondent authorities by rejecting the claim of the petitioner to hold the charge of the post of Principal of the said school on the ground that she had pursued her MA degree without obtaining prior/previous permission from the departmental authorities, has infact invalidated the MA degree so obtained by the petitioner in the matter.

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12. Mr. Das, learned counsel for the petitioner, has placed reliance on the decision of this Court rendered in the case of Tankeswar Nath v. State of Assam & ors .[WP(c)5419/2023, order, dated 18.12.2023.

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13. In the above premises, Mr. Das, learned counsel, has submitted that the order, dated 20.03.2024, would call for an interference with further direction to the respondent authorities, to consider the case of the petitioner for appointment as Principal of the said school on regular basis and/or for holding the charge of the post of Principal of the school, in question, till the said post is so filled-up on regular basis, by reckoning her MA degree as well as her B.Ed. degree, both acquired from recognized institutions.

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14. Mr. Khataniar, learned standing counsel, Secondary Education Department, has, by referring to the affidavit filed in the matter by the Director of Secondary Education Department, has submitted that the petitioner having acquired her MA degree in violation of the provisions of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965, a misconduct has been committed and accordingly, the MA degree as acquired by the petitioner, would not be reckonable. It was further submitted that the MA degree of the petitioner not being reckonable, it has to be construed that the petitioner does not possess the requisite eligibility criteria for appointment, either, on regular basis, or, on adhoc basis, against the post of Principal of the school, in question. Accordingly, the learned standing counsel has submitted that this writ petition is called upon to be dismissed in limine .

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15. The issue arising in the present proceeding is as to whether the MA degree acquired by the petitioner without obtaining prior/ previous permission from the departmental authorities to pursue the said course, would have the effect of invalidating the MA degree so obtained by her.

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16. The Director, Secondary Education Department, Assam, had vide order, dated 20.03.2024, rejected the claim of the petitioner to hold the charge of the post of Principal of the said school only on the ground that she had obtained her MA degree without obtaining prior/previous permission from the departmental authorities, to pursue the said degree. The petitioner, was therefore, held to have violated the provisions of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965.

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17. The provisions of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965, being of relevance, is extracted hereinbelow:

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“ 13. Prosecution of studies by Government servants in educational institutions. - No Government servant while in Government service shall join or attend any educational institution for the purpose of preparing himself for or shall appear at any examination of a recognized-Board or University without obtaining previous permission from the appointing authority:

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Provided that the appointing authority may refuse such permission in the interest of the public service on consideration that such joining or attending any educational institution or appearing at any examination may create dislocation of work or stand in the way of the efficient discharge of his duties by the Government servant concerned. Permission of study leave or any other kind of leave granted for the purpose of joining or attending any educational institution shall be subject to the condition that the Government servant shall not seek election to or hold any electist office in Students' Union or other Association of Student’s except Association formed for purely literary, academic or athletic pursuits.”

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18. The provisions of Rule 13 of the Rules of 1965 mandates that no government employee while in service, shall join or shall attend any educational institution for preparing himself or shall appear at an examination of a recognized Board or University without obtaining previous permission from the appointing authority.

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The provisions of Rule 13 only mandates that prior permission shall be obtained by a government employee for prosecuting any course of study. The violation of Section 13 would amount to a misconduct for which the employer

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may draw a disciplinary proceeding against the government employee. The provisions of Rule 13 of the Rules of 1965 cannot, however, be invoked to invalidate any degree acquired by a government employee, the course of study for which the government employee had prosecuted without previous permission from the authorities.

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19. This Court in the case of Tankeswar Nath (supra), on considering the issue similar to the one arising to the present proceeding, has drawn the following conclusions:

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“ 6. The said issue is no longer res-integra and this Court, vide order, dated 28.09.2023, passed in IA(c)2615/2023 [Smt. Mouchumi Saharia v. Smriti Rekha Kalita & 3 ors.] had held that if a Degree had been obtained without prior permission of the appointing authority, the same would be a misconduct under Rule 13 of the Rules of 1965 and it being a misconduct, the relevant proceedings of law applicable against the candidate, would be a proceeding against such candidate under the Assam Services(Discipline and Appeal) Rules, 1964, but the same by itself cannot invalidate the otherwise valid degree obtained from the respective Universities and further, that the Degree obtained from a University is governed by Section 22 of the University Grants Commission Act, 1956.

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7. On application of the decision of this Court in the case of Mouchumi Saharia(supra); to the issues arising in the present case, it is clear that the petitioner having been validly granted a Masters Degree in Assamese and the said Degree having been obtained from an institution recognized by the University Grants Commission, the respondent authorities do not have the jurisdiction and authority to invalidate the said Degree obtained by the petitioner and such invalidation cannot be done even impliedly.

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The effect of the denial of the benefits of holding the charge of in-charge Principal of the said school to the petitioner inspite of being the senior-most Teacher of the school, amounts to an invalidation of the Degree obtained by the petitioner in Krishna Kanta Handique State Open University, which is impermissible.

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8. Accordingly, the order, dated 30.03.2023, having been issued only on the ground that the petitioner was not eligible to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Sarthebari, on account of he having obtained his M.A. Degree without prior permission from the competent authorities for undergoing such a course; stands interfered with.”

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20. The M.A. Degree acquired by the petitioner having been so acquired from a recognized University; the said Degree is otherwise valid and acceptable in law and accordingly, the petitioner also having acquired her B.Ed. degree, she must be held to have fulfilled the eligibility criteria as mandated for recruitment to the post of principal of the school in question, under the provisions of Rule 12(3) of the Assam Secondary Education(Provincialized Schools) Rules, 2018. Accordingly, a legal right has accrued to the petitioner to hold the charge of the post of Principal, Padma Ram Sarmah Higher Secondary School, Jorhat.

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21. In view of the above discussion and applying the decision of this Court rendered in the case of Tankeswar Nath (supra) to the facts of the present case; the order, dated 20.03.2024, passed by the Director, Secondary Education Department, Assam, stands set aside.

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22. The matter is now remanded back to the Director, Secondary Education Department, Assam, to pass appropriate orders after considering the cases of all eligible teachers of the Padma Ram Sarmah Higher Secondary School, Jorhat, for holding the charge of the post of the Principal of the school, in question, including the case of the petitioner, herein.

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23. It is needless to mention that while considering the qualifications of eligible persons; the Director, Secondary Education Department, Assam, shall be at liberty to examine as to whether the said qualifications were so obtained from recognized institutions. However, the Masters degree as obtained by the petitioner, herein, shall not be treated to be an invalid one only on the ground that the same was so pursued without obtaining prior permission from the departmental authorities.

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24. On a consideration so made, the Director, Secondary Education Department, Assam, shall pass further appropriate orders by allowing the suitable candidate so found to hold the charge of the post of Principal of the school, in question.

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25. The entire exercise as now required to be carried-out by the Director, Secondary Education Department, Assam, in terms of the directions passed by this Court hereinabove, shall be so initiated and concluded within a period of 1(one) month from the date of receipt of a certified copy of this order.

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26. At this stage, it is to be noted that in the event, the appointing authority is of the considered view that the petitioner, herein, has committed a misconduct in the matter in pursuing her MA course without obtaining prior permission from the departmental authorities; appropriate proceeding in the matter may be initiated against her in accordance with law.

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27. with the above directions and observations, this writ petition accordingly stands disposed of.

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JUDGE

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Mitali Sonowal v. the State of Assam and 4 Ors.

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Mitali Sonowal v. the State of Assam and 4 Ors.

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