Tankeswar Nath Vs the State of Assam and 2 Ors.

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GAHC010077922024

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2025:GAU-AS:4620

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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)/2136/2024

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TANKESWAR NATH S/O- LATE UMESH CHANDRA NATH, B.SC., B.ED, MA, SENIOR MOST ASSISTANT TEACHER, SARTHEBARI HIGHER SECONDARY SCHOOL, SARTHEBARI, R/O- VILL. AND P.O.- GAHIYA, DIST.- BARPETA, ASSAM, PIN- 781311.

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VERSUS THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION DEPARTMENT), ASSAM (CIVIL) SECRETARIAT, BLOCK-C, DISPUR, GUWAHATI, ASSAM, PIN- 781006.

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI ASSAM PIN- 781019. 3:THE INSPECTOR OF SCHOOLS BARPETA DISTRICT CIRCLE BARPETA ASSAM.

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4:JITEN CHANDRA BARMAN ASSISTANT TEACHER CUM I/C PRINCIPAL

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SARTHEBARI HIGHER SECONDARY SCHOOL SARTHEBARI DIST.- BARPETA ASSAM PIN- 781307

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Advocate for the Petitioner : MR. A K DUTTA, MR. B PURKAYASTHA

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Advocate for the Respondent : SC, SEC. EDU.,

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Linked Case : WP(C)/2653/2024

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TANKESWAR NATH S/O- LATE UMESH CHANDRA NATH B.SC. B.ED MA SENIOR MOST ASSISTANT TEACHER SARTHEBARI HIGHER SECONDARY SCHOOL SARTHEBARI R/O- VILL. AND P.O. GAHIYA DIST. BARPETA ASSAM PIN- 781311 VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION DEPARTMENT) ASSAM (CIVIL) SECRETARIAT BLOCK-C DISPUR GUWAHATI ASSAM PIN- 781006 2:THE DIRECTOR OF SECONDARY EDUCATION

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ASSAM KAHILIPARA GUWAHATI ASSAM PIN- 781019 3:THE INSPECTOR OF SCHOOLS BARPETA DISTRICT CIRCLE BARPETA ASSAM -----------Advocate for : MR. B PURKAYASTHA Advocate for : SC SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS

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Linked Case : WP(C)/3917/2024 TANKESWAR NATH S/O LATE UMESH CHANDRA NATH B.SC B.ED MA SENIOR MOST ASSISTANT TEACHER SARTHEBARI HIGHER SECONDARY SCHOOL SARTHEBARI R/O VILL AND P.O.-GAHIYA DIST- BARPETA ASSAM PIN-781311 VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION DEPARTMENT) ASSAM (CIVIL) SECRETARIAT BLOCK-C DISPUR GUWAHATI ASSAM PIN-781006 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM

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KAHILIPARA GUWAHATI ASSAM PIN-781019

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3:THE INSPECTOR OF SCHOOLS BARPETA DISTRICT CIRCLE BARPETA ASSAM

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-----------Advocate for : MR. B PURKAYASTHA Advocate for : SC

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SEC. EDU. appearing for THE STATE OF ASSAM AND 2 ORS

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BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

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JUDGMENT & ORDER (CAV)

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11.04.2025

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1. Heard Mr. B. Purkayastha , learned counsel for the petitioner and Mr. N.J.Khataniar, learned Standing counsel, School Education for the respondents.

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These three writ petitions are taken up together for final determination as the dispute is between the same parties and the issues involved in these petitions are also same.

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3. The petitioner initially preferred a writ petition being WP(C) No. 5419/2023, challenging an order dated 30.03.2023 by which the respondent No. 4 therein, one Jiten Chandra Barman, was allowed to hold the charge of the post of Principal, Sarthebari Higher Secondary School, Barpeta.

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4. The petitioner was not given such benefit primarily on the ground that the petitioner had acquired his M.A. degree in Assamese from Krishna Kanta Handique State Open University (hereinafter referred to as KKHSOU). The ground of refusing such benefit was in terms of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965 (hereinafter referred to as the Rules, 1965).

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5. This Court after elaborate discussion, under its order dated 18.12.2023, held that the provision of Rule 13 of the Rules, 1965, cannot 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. Accordingly, the matter was relegated to the Director of Secondary Education, Assam to pass an appropriate order allowing the petitioner to hold the charge of the post of Principal, Sarthebari H.S. School, Sarthebari, after due verification of the particulars of all candidates in the fray.

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6. Inspite of such clear findings by the Court, the Director of Secondary Education, Assam passed an order in the shape of order dated 07.04.2024, which is to the effect that the petitioner had committed a misconduct by not obtaining previous permission from the appointing authority for the purpose of studying MA degree in KKHSOU and therefore, he is liable to be proceeded departmentally by disciplinary authority.

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7. Such order dated 07.04.2024 issued by the Director of Secondary Education, Assam, is put under challenge in WP(C) No. 2136/2024. This Court by an order dated 22.04.2024, stayed the impugned order dated 07.04.2024.

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8. During pendency of the aforesaid writ petition, the petitioner was compelled to file an another writ petition being WP(C) No. 2653/2024 inasmuch as pursuant to the order dated 07.04.2024, a show cause notice was issued on 19.04.2024 by the Inspector of Schools, Barpeta against the present petitioner.

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9. Pursuant to such show cause notice, the petitioner filed reply to the same. Thereafter, the Inspector of School, I/c namely, Ratul Kumar Das, AES-I, passed an order on 10.07.2024, by which the petitioner was warned not to claim his seniority as he has violated Rule 13 of the Rules, 1965 by pursuing MA degree from KKHSOU. Subsequently, by another order dated 11.07.2024, the said I/c Inspector of Schools, Barpeta District Circle, Barpeta, imposed the punishment of censure as prescribed in Rule 7(i) of the Assam Services (Discipline & Appeal) Rules, 1964. Such decision is under challenge in

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WP(C) No. 3917/2024.

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10. It is important to note that the petitioner has also challenged the communication dated 19.12.2023 in WP(C) No. 2653/2024. The communication dated 19.12.2023 is the basis of initiation of such proceeding and such communication is also challenged in a separate batch of writ petitions, i.e. WP(C) No. 4205/2024 and WP(C) No. 1683/2024. In the aforesaid writ petitions, a stand has been taken that such proceeding has been initiated by virtue of the determination made by a Co-ordinate Bench in I.A.(Civil) No.2615/2023 (Smti. Mouchumi Saharia Vs. Smriti Rekha Kalita and 3 others).

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11. This Court in a separate judgment passed in Jayanta Neog & 13 others Vs. the State of Assam & 4 others (WP(C) No. 4205/2024) and another connected matter, i.e., Kalyan Boruah & 10 others Vs. the State of Assam & 2 others (WP(C) No. 1683/2024), has already made certain determinations, which can be summarized as follows:-

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(i) Permission to prosecute studies by a government servant in an educational institution is a sine qua non in terms of Rule 13 of the Rules, 1965.

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(ii) Such permission can be refused in terms of the proviso to Rule 13 of the Rules 1965, when such prosecution creates dislocation of the work or stands in the way of efficient discharge of duties by the government servant and leaves a big gap in the working strength.

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(iii)The object of recognition of Scheduled institutions (Schedule-III) for pursuing higher studies through distance mode is to facilitate the serving teachers to acquire the required professional and educational qualifications, so that the standard of imparting education is maintained without hampering regular classes of schools and/or without disturbing the day-to-day

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work.

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(iv) A conjoint reading of both the rules (Rule 13 of the Rules, 1965 as well as Schedule-III of the Rules, 2018) and the determination as recorded hereinabove, leave no room of doubt in the mind of this Court that prosecuting higher studies by serving teachers without permission from the scheduled institutions as enumerated under Schedule-III of the Rules, 2018, cannot be termed as a misconduct in terms of Rule 13 of the Rules, 1965.

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(v) Permission mandated under Rule 13 of the Rules 1965 cannot be made applicable in prosecuting studies by Teachers (whose service conditions are controlled by the Rules, 2018) through distance mode from the scheduledUniversities/institutions enumerated under ScheduleIII of the Rules, 2018.

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(vi) Determination made in Mouchumi Saharia (supra) cannot be termed as any direction to the authorities in Education Department to initiate departmental proceeding against all the teachers, who prosecuted studies through distance mode from the scheduled institutions incorporated in Schedule-III of the Rules, 2018.

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(vii) When there is no dispute that the petitioners had obtained their degrees through distance mode from KKHSOU, IDOL, Gauhati University, Dibrugarh University and Assam University in terms of prescriptions made under OM dated 28.07.2014 and OM dated 22.11.2019, therefore, Rule 13 of the Rules, 1965, cannot be made applicable to these teachers taking clue from

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observation made in paragraph 4 of Mouchumi Saharia (Supra).

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(viii) Accordingly, if any proceeding has already been initiated against the petitioners during the pendency of these three petitions, the same shall fail.

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12. In the considered opinion of this Court, the determination made in (WP(C) No. 4205/2024) & (WP(C) No. 1683/2024), squarely covers the case of the petitioner inasmuch as the issue is relatable to prosecute higher studies through distance mode, accordingly, in view of the determination made in WP(C) No. 4205/2024 and another connected writ petition, the impugned order dated 07.04.2024 in WP(C) No. 2136/2024, the communications dated 10.07.2024 & 11.07.2024 in WP(C) No. 3917/2024 and the show cause notice dated 19.04.2024 in WP(C) No.2653/2024, being not sustainable, are set aside and quashed.

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13. With the aforesaid observations and directions, these writ petitions stand closed without interfering with the impugned communication bearing No. E-417782/18 dated 19.12.2023.

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JUDGE

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Tankeswar Nath v. the State of Assam and 2 Ors.

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Tankeswar Nath v. the State of Assam and 2 Ors.

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