Jayanta Neog and 13 Ors. Vs the State of Assam and 4 Ors.

THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION (SECONDARY) DEPARTMENT, SACHIVALAYA, DISPUR, GUWAHATI-6.

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2:THE DIRECTOR OF SECONDARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19.

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3:THE INSPECTOR OF SCHOOL TINSUKIA DISTRICT CIRCLE TINSUKIA DISTRICT DIST.- TINSUKIA ASSAM.

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4:THE INSPECTOR OF SCHOOL MARGHERITA CIRCLE MARGHERITA DIST.- TINSUKIA ASSAM.

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5:THE INSPECTOR OF SCHOOL DOOMDOOMA CIRCLE DOOMDOOMA DIST.- TINSUKIA ASSAM

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Advocate for the Petitioner : MR S BORTHAKUR, MR. D GOGOI

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

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Linked Case : WP(C)/1683/2024

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KALYAN BORUAH AND 10 ORS S/O- LATE DHARMA KANTA BORUAH R/O- JOYSAGAR CHIPAHI GAON P.O. JOYSAGAR P.S. JOYSAGAR DISTRICT - SIVASAGAR PIN - 785665

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2: SUPRABHA DAS WIFE OF RAJESWARI DAS P.O. MILONPUR 37 NOS. BYPASS SIVASAGAR P.S. SIVASAGAR DISTRICT - SIVASAGAR ASSAM PIN - 785640

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3: MRS. ANJALI CHUTIA W/O- MR. DIPENDRA LEKHARU R/O- MOHCHAL VILLAGE P.O.- HAFLUTING P.S. GAURISAGAR DISTRICT - SIVASAGAR

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PIN - 785633

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4: PROBIN DUTTA SON OF LATE NARAM DUTTA R/O -NAZIRA TOWN WARD NO. 2 P.O. NAZIRA P.S. NAZIRA DISTRICT - SIVASAGAR PIN - 785685

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5: PRANATI DEVI WIFE OF DILIP CHANDRA KALITA R/O -T.P. CHALIHA ROAD P.O. SIVASAGAR P.S. SIVASAGAR DISTRICT - SIVASAGAR

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PIN - 785640

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6: HARI KANTA GOGOI S/O- LATE CHANDRA KANTA GOGOI R/O NAZIRA TOWN WARD NO. 2 P.O. NAZIRA P.S. NAZIRA DISTRICT - SIVASAGAR

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PIN - 785685

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7: MALABIKA GOGOI WIFE OF MR. HOREN DUARAH R/O VILL. LALIMCHIGA P.O. LALIMCHIGA P.S. AMGURI DISTRICT - SIVASAGAR

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PIN - 785680

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8: NABAKANTA SAIKIA SON OF SONARAM SAIKIA R/O VILL. NAKATANI P.O. NAKATANI P.S. SIVASAGAR DISTRICT - SIVASAGAR

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PIN - 785667

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9: RIJUTI DEVI

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WIFE OF SRI JITENDRA NATH SARMAH R/O SALAGURI NO. 2 P.O. SALAGURI P.S. JOYSAGAR DISTRICT - SIVASAGAR

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PIN - 785666

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10: MALOBIKA DUTTA W/O SRI MUKUL KUMAR BORGOHAIN R/O GODADHAR NAGAR P.O. JOYSAGAR P.S. JOYSAGAR DISTRICT - SIVASAGAR

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PIN - 785665

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11: JITENDRA NATH SARMAH SON OF LATE SIVA NATH SARMAH R/O SALAGURI NO. 2 P.O. SALAGURI P.S. JOYSAGAR DISTRICT - SIVASAGAR

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PIN - 785666 VERSUS

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THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM

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EDUCATION (SECONDARY) DEPARTMENT SACHIVALAYA DISPUR GUWAHATI-6. 2:THE DIRECTOR OF SECONDARY EDUCATION ASSAMKAHILIPARA GUWAHATI-19.

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3:THE INSPECTOR OF SCHOOL SIVASAGAR DISTRICT CIRCLE SIVASAGAR DISTRICT SIVASAGAR ASSAM. -----------Advocate for : MR S BORTHAKUR Advocate for : SC 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. S. Borthakur, learned counsel for the petitioners and Mr. N.J.Khataniar, learned School Education Department, Assam for the respondents.

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2. These two writ petitions are taken up together. The challenge made in

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these two petitions is the same, i.e., a challenge to the communication bearing No. E-417782/18 dated 19.12.2023.

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3. The petitioners in these two petitions are working as Subject Teachers/Assistant Teachers and In-Charge Headmasters in different provincialised Secondary Schools under the jurisdiction of the Inspector of Schools, Sivasagar District Circle, Sivasagar and under the jurisdiction of the Inspector of Schools, Tinsukia District Circle, Tinsukia. They had acquired B.Ed.degree, MA degree through distance mode offered by three universities, i.e., IDOL Gauhati University, Dibrugarh University and Assam University.

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4. By the impugned communication dated 19.12.2023, the Director of Secondary Education, Assam, Kahilipara instructed all the Inspectors of Schools, Assam asking them to immediately start Departmental Proceedings against those teaching and non-teaching staff of the Provincialised Secondary Schools, who have acquired any academic or professional qualification during their service period without obtaining previous permission from the appointing authority in violation of the provision of Rule 13 of the Assam Civil Services (Conduct) Rules, 1965 (hereinafter referred to as the Rules, 1965) inasmuch as according to the Director of Secondary Education, Assam pursuing any Educational/ Professional qualification by the teaching and non-teaching staff of a Provincialised Secondary School, without permission from the employer violates Rule 13 of the Rules, 1965 and therefore, liable to be punished as per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the Rules, 1964).

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5. It was further instructed by the Director of Secondary Education, Assam under its communication dated 19.12.2023 that prima facie, if it is found that the incumbent has violated Rule 13 of the Rules, 1965, then the penalties

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prescribed under Rule 7 of the Rules, 1964 may be imposed upon such Government Servant following due procedure as prescribed in the aforesaid Rule.

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6. Mr. Borthakur, learned counsel for the petitioners assailing the aforesaid communication argues that it is an admitted position that by the Office Memorandum (OM) dated 28.07.2014, those teachers who acquire qualification through distance mode from the recognised State universities under the State are excluded from the purview of Rule 13 of the Rules, 1965 and therefore, in the backdrop of OM dated 28.07.2014, the impugned communication is not sustainable under law without there being any clarification as regards the applicability of said OM dated 28.07.2014.

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7. Referring to the affidavit-in-opposition filed by the respondents, more particularly, the stand of the respondent that the impugned communication was issued in terms of the determination made by this Court in its order dated 28.09.2023 in I.A.(Civil) No. 2615/2023 ( Smt. Mouchumi Saharia Vs. Smriti Rekha Kalita and 3 others) , Mr. Borthakur, learned counsel for the petitioners, contends that the observation made by this Court in Smt. Mouchumi Saharia (supra), more particularly, at paragraph 4, cannot be said to be a ratio decidendi and/or writ of mandamus to initiate departmental proceedings against all the teachers like that of the petitioners; rather, it is an obiter. According to Mr. Borthakur, learned counsel for the petitioners, if such a paragraph is removed from the judgment, the same will not affect the outcome of the judgment passed in Smt. Mouchumi Saharia (supra). In this context, Mr. Borthakur, learned counsel for the petitioners, places reliance on the decision of the Hon’ble Apex Court passed in the case of the State of Gujarat and others Vs. Utility Users Welfare Association reported in 2018 (6) SCC 21 .

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8. Regarding the contention raised by the State that the present writ petitions are premature for the reason that show cause notices have not yet been issued and the Department will proceed against the erring official after following due procedure of law, Mr. Borthakur, learned counsel for the petitioners contends that the impugned communication has adversely prejudiced the right of the petitioners, more particularly, the right accrued upon them in terms of OM dated 28.07.2014, therefore, they need not wait for actual prejudice and adverse effect as well as consequences. According to him, in apprehension of such harm, the petitioners are within their rights to assail such action. In support, Mr. Borthakur, learned counsel for the petitioners, places reliance on the judgment of Adi Saiva Sivachariyargal Nala Sangam and others Vs. Government of Tamil Nadu and another reported in 2016 (2) SCC 725 .

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9. Referring to Rule 13 of the Rules, 1965, Mr. Borthakur, learned counsel for the petitioners contends that Rule 13 is controlled by its proviso inasmuch as the Departmental Proceeding, cannot be initiated by way of a communication, like the impugned communication, rather the employer first must have a satisfaction that such joining or attending educational institution had created distraction of work and obstructed efficient discharge of duties of the Government authorities. According to Mr. Borthakur, learned counsel for the petitioners, without having such satisfaction, it cannot be directed to apply Rule 13 of the Rules, 1965, in the manner it is sought for by the impugned communication. According to him, the language of Rule 13 is very clear that the prosecution of study is relatable to regular mode by attending regular studies by attending, regular classes and not relatable to distance learning inasmuch as the expression “Studies In” is used by legislature

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10. Par contra, Mr. N.J.Khataniar, learned Standing counsel, Schools Education Department submits that from the impugned communication, it is very clear

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that this is an instruction from the Director of Secondary Education, Assam to all the Inspectors of Schools to identify those teachers, who have acquired degrees without permission of the employers and to initiate the Departmental Proceeding in terms of the Rules, 1965. Therefore, such impugned order has not prejudiced the petitioners. According to him, as of this date, there is no cause of action to challenge such intra-departmental communication until and unless a definite action is taken based on such impugned communication.

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11. Mr. Khataniar, learned Standing counsel, further contends that the writ petitions are not maintainable on such apprehension inasmuch as the State is under a bounden duty to proceed as per law, more particularly, under the proviso to Rule 13 of the Rules, 1965 and Rule 9 of the Rules, 1964.

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12. Heard the learned counsels for the parties. Perused the OMs and the provisions of law cited at the Bar.

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13. Rule 13 of the Rules, 1965 deals with the prosecution of studies by government servants in educational institutions. The aforesaid provision being the bone of contention, is quoted herein below:

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“(13) Prosecution of studies by Government servants in Educational institutions .-

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No Government Servant while in Government servant 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: Provided that the appointing authority may refuse such permission in the interest of 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

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duties by the Government Servant concerned. Permission or 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 elective office in Students Unions or other Associations of Students except Associations formed for purely literary academic or athletic pursuits.

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Explanation.-

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Normally no one should be allowed to continue studies beyond the Degree Course. Persons doing executive work should not normally be given permission to prosecute studies. Moreover, where giving permission means leaving a big gap in the working strength of the office, permission may be refused by the Appointing Authority at his discretion.”

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14. A bare reading of the aforesaid Rule, it is clear that there is a bar for the government servant to join or attend any educational institution to prepare himself/herself for or to appear at any examination without obtaining previous permission from the appointing authority.

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15. In the considered opinion of this Court, the proviso clarifies the object of enactment of Rule 13 of the Rules, 1965, inasmuch as it deals with the grounds when such permission can be refused. Therefore, though there is a bar for a government servant to prosecute studies in educational institutions without obtaining permission from the appointing authority, however, the appointing authority is empowered to grant such permission and the grounds for which it can refuse, has also been enumerated in the proviso to Rule 13 of the Rules, 1965. Further proviso to Rule 13 of the Rules 1965 clarifies that such prosecution of studies shall be refused 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. Thus, the object of enactment of Rule 13 of the Rules, 1965 and creation of the bar is to protect the proper and smooth functioning of the work and efficient

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discharge of duties by a government servant. Such permission can be granted when such study shall not hamper the work and efficient discharge of duties.

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16. Such Rule dates back to the year 1965 and therefore, enactment of NCTE Act, 1993 (hereinafter referred to as the Act, 1993), Right of Children to Education Act, 2009 (hereinafter referred to as the Act’2009), Indira Gandhi National Open University Act, 1985 (hereinafter referred to as the Act, 1985) and other Acts and Rules recognising qualifications obtained through distance learning and the Assam Secondary Education (Provincialised Schools) Service Rules, 2018 (hereinafter referred to as the Rules, 2018), which controls the service conditions of the petitioners, shall have relevance and bearing on implementation and interpretation of Rule 13 of the Rules 1965 as well as the Impugned Communication. Therefore, let this Court first consider the relevant provisions of the NCTE Act, 1993, the RTE Act, 2009 and the Rules, 2018.

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17. The parliament enacted the RTE Act, 2009 on 04.08.2009. The object of the said Act, 2009, is to fix the procedure and modalities for the implementation of free and compulsory education for children aged between 6 to 16 years as mandated under Article 21A of the Constitution of India. This Act came into effect on 1^st April, 2010.

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18. Section 23(1) of the RTE Act, 2009 provides that any person possessing any such minimum qualification, as laid down by an academic authority, authorised by the Central Government, by Notification, shall be eligible for appointment as teachers.

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19. The NCTE Act, 1993, was enacted to provide for the establishment of NCTE with a view to achieving planned and coordinated development of the teachers’ education system throughout the country. The further object was to regulate and maintain the norms and standards in the teachers’ education system and for matters connected therewith.

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20. Pursuant to the enactment of the RTE Act, 2009, the NCTE Act, 1993,

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was amended and Section 12A was inserted, empowering NCTE to determine minimum standards of education of school teachers. Thus, NCTE is recognised as the authority under Section 23 (1) of the RTE Act, 2009.

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21. Accordingly, NCTE issued a Notification dated 23.08.2010, prescribing the minimum qualification for being appointed as Teachers, including teachers to which category the petitioners belong.

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22. The Govt. of Assam, thereafter, issued a Notification under No. ASE/324/2009/138 dated 13.09.2012, whereby the State Government relaxed certain required educational and professional qualifications for the post of teacher in provincialised H.S.Schools and High Schools/High Madrassas during the period up to 01.01.2015 on the condition that these teachers will acquire BT/B.Ed degree from a recognised university within 5 years from the date of joining in service. Thus, such an OM is nothing but a permission to prosecute studies, subject to conditions laid down in such an OM.

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23. Yet another Notification under No. ASE.82/2014/Pt/43 dated 07.07.2014, was issued so far, the same relates to the acquisition of required degrees in terms of the Assam Secondary Education (Provincialised) Service Rules, 2003, permitting acquisition of BT/B.Ed degree from recognised university within 3 years of the date of joining the service in the post of Principal. Thus same is also a permission to prosecute studies

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24. Thereafter, in supersession of all earlier orders, the Government of Assam issued the OM dated 28.07.2014. A bare reading of the OM dated 28.07.2014 clarifies the background and the reason for issuance of such OM. It is clear from the said OM that the State in the Education Department took note of the prescribed qualification under such Central legislation, i.e., the RTE Act, 2009 as well as the guidelines issued under NCTE Act, 1993 and corresponding amendments in the Assam Secondary Education (Provincialised) Service Rules, 2012, incorporating educational qualification for being

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appointed as a teacher. The State took note of the prescribed qualifications mandated under Service Rules for being appointed as a Post-graduate teacher, that the minimum requirement will be a Master's degree in the subject and as well as a B.Ed degree, and that a large number of teachers lack such qualifications.

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25. The OM dated 28.07.2014, consists of 7 Clauses. For consideration of the present cases, Clauses 6 & 7 of the OM dated 28.07.2014 are relevant.

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26. Clause 6 prescribes that the persons appointed as Post-graduate teachers, Graduate teachers in provincialized Higher Secondary Schools and High Schools/High Madrassas with relaxation of professional qualification of B.Ed degree in terms of the Notification, may pursue B.Ed degree in the State which have affiliation by Gauhati University, Dibrugarh University and Assam University in the evening shift classes, where normal classes of schools are not hampered.

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It was further provided that no prior permission shall be required so far as relating to the teachers, who desire to obtain a B.Ed degree from such colleges and may get admission with intimation to the respective Heads of the institutions and the Inspectors of Schools concerned. It was also mandated that the competent authority shall grant leave to enable the teachers to appear in examinations, practical classes etc.

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In Clause 7, it was provided that the teachers of any other cadre in H.S.School and High School/High Madrassa may also pursue B.Ed degree through distance mode from private institutions/university, duly recognised by UGC and NCTE.

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27. Thus, from the aforesaid, it is clear that the government intended to facilitate the teachers to obtain the required educational and professional qualifications through the regular mode by attending classes without disturbing the normal classes of the school and by attending evening classes.

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For teachers of any other cadre, the acquisition of a B.Ed degree was permitted through distance mode from institutions recognised by UGC and NCTE. Thus, the distance mode of acquiring an essential qualification is also recognised by the State.

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28. Thus, it is clear that while issuing such OM dated 28.07.2014, the State was conscious of the bar of acquisition of higher education under Rule 13 by a public servant and took note of the proviso to Rule 13 of the Rules, 1965, i.e. that there should not be any dislocation of work or such study prosecuted by the Government Servant, should not stand in the way of efficient discharge of the duties of the government servant concerned. Therefore, the interest of the public servant as well as the interest of the teachers, who want to acquire higher studies, were balanced by way of the OM dated 28.07.2014.

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29. Subsequently, the State in Education Department issued another OM bearing No.ASE.238/2014/213 dated 22.11.2019. Subject matter of the same was relaxation of Rules under the Rules, 2018, whereby the degrees, diplomas and certificates under Distance Education Mode conferred by Krishna Kanta Handique State Open University (KKHSOU), IGNOU, IDOL under Gauhati University and Distance Education under Dibrugarh University shall be considered at par and valid with the degrees, diplomas and certificates awarded by the State, Central and Private Universities duly established as per law passed by the Parliament and the State Legislature and duly recognized by the UGC. Thus, under such relaxation, the other degrees, like post graduate degree acquired through distance learning mode, were recognised.

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30. Such relaxation was subsequently given the status of law by way of amending Schedule-III of the Rules, 2018, through the Assam Secondary Education (Provincialised Schools) (Amendment) Service Rules, 2021. Such a position also clarifies the stand of the State in the Education Department that they want to facilitate the teachers to acquire professional and educational qualifications through the distance learning mode inasmuch as the distance

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learning mode shall not hamper the regular classes of schools and/or disturb the day-to-day work, in backdrop of the admitted position that the aforesaid Scheduled Educational institutions, recognized in the amended Schedule-III of the Rules, 2018, hold their examinations on Sundays and there is no requirement of attending classes.

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31. Therefore, this aspect of the matter is also very vital while initiating any departmental proceeding against a teacher alleging violation of Rule 13 of the Rules, 1965 inasmuch as the Bar to prosecute higher studies under Rule 13 of the Rules, 1965, must be read harmoniously with the Service Rules controlling the services of such teachers, which permits persecution of studies from certain institutions through distance mode, whereas Rule 13 of the Rules, 1965 barred the prosecution of studies without permission as such studies create dislocation of the work or stand in the way of efficient discharge of duty by the government servant and leave a big gap in the working strength.

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32. In the considered opinion of this Court, the issuance of OM dated 22.11.2019 and the amendment of Schedule-III of the Rules, 2018 clearly show that the State in the Education Department is conscious of such fact. Yet another aspect, which requires consideration is necessity of acquisition of educational and professional qualification in terms of service rules and such mandate is benefit for improvement of standards of education and therefore, the State should not create a situation to discourage the teachers in acquiring qualifications through distance mode by issuing communication, like the impugned communication, which apparently, is against the spirit of OM dated 22.11.2019 and amendment of Schedule- III of the Rules, 2018.

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33. The authorities cannot remain in oblivion that it is the Service Rules based on which the misconduct can be alleged for prosecuting higher education in violation of Rule 13 of the Rules, 1965. When distance learning mode for prosecution of higher studies is recognized by the State in the Education Department, the same will be one of the most important

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consideration, even before alleging violation of Rule 13 of the Rules, 1965, i.e., prosecuting higher education without obtaining permission from the authority inasmuch as the Rules and the OMs referred hereinabove itself permits prosecution of higher studies through distance learning mode and it is an admitted position that in distance learning mode, there is no regular class to be attended and the examinations are held on Sunday as recorded hereinabove. The fact remains that it was also clarified that for obtaining such a degree through distance mode from IDOL, Gauhati University and Dibrugarh University, there shall be no requirement of prior permission from the authority concerned.

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34. Another aspect of the matter is the enactment of Indira Gandhi National Open University (IGNOU) Act, 1985 and the creation of KKHSOU by the State Legislature for facilitating distance learning.

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35. The Lok Sabha debate while placing the IGNOU Bill, clearly shows that such act was introduced in the Lok Sabha with an object to establish and incorporate an open university at the national level for introduction and promotion of open university and distance education system in the educational pattern of the country and for co-ordination and determination of standards in such system. It is also seen that it was considered by the Parliament that there is a vast number of people in our country, who are denied opportunities to pursue higher education and a systematic education to housewives, to workers etc. can be provided by establishing an institution as proposed in the Bill and it would make possible to provide continuing education to workforce, who can avail of learning opportunities during leisure time and contribute to overall modernization of the socio-economic system. Accordingly, the IGNOU was established.

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36. With the same object, KKHSOU was established by a legislation enacted by the State inasmuch as the Gauhati University as well as the Dibrugarh University, which are State universities, had also created their own institutions

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of distance learning like IDOL.

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37. Therefore, neither this Court can remain oblivious to the fact that distance learning is a reality as of the day, nor the employer in the education department. In the considered opinion of this Court, taking note of such object, the State had issued the OMs dated 13.09.2012, 07.07.2014, 28.07.2014 & 22.11.2019 and amended Schedule – III of the Rules, 2018. Infact in the Notification dated 28.07.2014, the State in Education Department has clarified that for prosecution of such studies through distance mode, there shall be no requirement for obtaining permission from the employer, if such studies and degrees are prosecuted through distance mode from IDOL, distance learning from Gauhati University, distance learning from Dibrugarh University.

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38. That being the position, in the totality of the matter and in the considered opinion of this Court, a teacher who obtains B.Ed degree or Post Graduate degree from these institutions, i.e., KKHSOU, IGNOU, IDOL, Gauhati University, Distance Learning Mode Dibrugarh University or any other distance learning institutions, that may, by special or general order, the State in Education Department recognizes, no permission shall be required for prosecuting such studies through distance mode. Even the aforesaid OM mandates the grant of leave for practical examination as well as to attend the examinations.

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39. That being the position, though it is correct to say that impugned communication cannot have any impact on the petitioners, who admittedly had obtained their respective degrees from the aforesaid institutions, however, in the fitness of things and to avoid ambiguity, the Director of Secondary Education, Assam ought to have clarified the aforesaid position and policy decision taken by the State in terms of OMs dated 13.09.2012, 07.07.2014, 28.07.2014 & 22 . 11.2019 and amended Schedule – III of the Service Rules 2018. Therefore, in the opinion of this Court, the impugned communication dated 19.12.2023 shall always be subject to the OMs dated 13.09.2012,

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07.07.2014, 28.07.2014 & 22.11.2019 and amended Schedule – III of the Service Rules 2018, more particularly, when the OM dated 28.07.2014 22.11.2019 were issued by the Government in the Secondary Education Department, and the impugned communication was issued by Director of Secondary Education, Assam. It is needless to say that such applicability of the impugned communication dated 19.12.2023 shall also be subject to the determination made in this judgment.

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40. Another important aspect of the matter is that when Rule 13 of the Rules, 1965 was enacted, there was no concept of any distance learning inasmuch as distance learning, as recorded hereinabove, permits prosecution of studies without leaving any gap in the work strength or dislocation of work, etc. In this context, the text of Rule 13 of the Rules, 1965 is also very relevant. The text of Rule 13 of the Rules, 1965 emphasizes on prosecution of studies in Educational institutions and prohibits joining or attending any educational institution. As per dictionary meaning, ‘in’ expresses a situation of something that is or appears to be enclosed or surrounded by something else. The synonym of ‘in’ is inside, within or in middle of, i.e., a situation of something that is or appears to be enclosed or surrounded by something else. The expression of joining or attending shall necessarily mean joining or attending a regular institution in the context when such rule was enacted, more particularly, in view of prescription made in the proviso to Rule 13.

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41. Thus, in the considered opinion of this Court, the text and context of Rule 13 of the Rules, 1965 is clear and unambiguous and therefore, this Court should apply the plain meaning of Rule and accordingly, studies in educational institutions shall mean in the context of Rule 13 and the proviso thereto, studies in a regular educational institution by government servant, which shall create a gap in the working strength and create dislocation of work or stand in the way of efficient discharge of duties and not inasmuch as distance learning mode, that too when such prosecution of studies is an accepted mode for

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serving teachers under the statutory service rules like the Rules, 2018.

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42. At the cost of repetition, it is recorded that Rule 13, debars studies in an educational institution, which results dislocation of government service and the same can happen, when a government servant prosecutes studies in an institution keeping himself abstained from duties. In case of distance learning mode from the scheduled institutions, such scope is admittedly not there. Thus, a conjoint reading of both the rules and the determination recorded hereinabove, leaves no room of doubt in the mind of this Court that prosecuting higher studies by a serving teacher 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. At the same time, the service rule holding the field, i.e., the Rules, 2018 itself recognizes and permits acquisition of higher studies from certain recognized institutions under Schedule-III of the Rules, 2018 through distance mode by the serving teachers.

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43. In the case in hand, there is no dispute that the petitioners had obtained their degrees through distance mode from KKHSOU, IDOL, Gauhati University, Dibrugarh University and Assam University and therefore, no permission shall be required for them and therefore, Rule 13 of the Rules, 1965, cannot be made applicable to those teachers, who have obtained such degree through distance mode from the aforesaid Scheduled universities/institutions as prescribed under OM dated 28.07.2014 and OM dated 22.11.2019 and therefore, no proceeding can be initiated against them for violation of Rule 13 of the Rules, 1965.

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44. In the aforesaid backdrop, though this Court cannot find fault with the impugned communication, so far it relates to instructing the Inspectors of Schools of all the concerned districts to verify and initiate departmental proceeding for violation of Rule 13 of the Rules, 1965, however, the same shall be subject to the determination made hereinabove.

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45. Now coming to the judgment of this Court passed in Mouchumi Saharia (supra), this Court finds force in the arguments of Mr. Borthakur. In the backdrop of the stand of the Director of Secondary Education, Assam, as recorded hereinabove, the relevant portion of Paragraph 4 of the aforesaid judgment is quoted herein below:-

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“If the fact of the writ petitioner would have to be construed to be a misconduct under the Rules, 1965, the appropriate remedy would be to initiate a disciplinary proceeding against the person for having committed the misconduct under the Assam Services (Discipline and Appeal) Rules, 1964. But, a misconduct of such nature of having obtained a degree from a university without obtaining permission cannot lead to a conclusion that the degree obtained from a university itself is untenable in law.”

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46. In the considered opinion of this Court, such determination cannot be treated as a writ of mandamus since it was a passing comment that when there is a violation of Rule 13 of the Rules 1965, the State shall be at liberty to proceed against such employees though the degree from recognized universities shall be valid. The issue therein was the validity of the degree, not the interpretation of Rule 13. In the aforesaid judgment, the purport of Rule 13 of the Rules, 1965 and its relevance and applicability given OM dated 28.07.2014 & OM dated 22.11.2019 and amendment of Schedule-III of the Rules, 2018, were not dealt with. Such determination is not a writ of mandamus asking the Director to issue the impugned communication or to initiate departmental proceedings.

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47. Accordingly, the determinations made hereinabove are summarised 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

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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.

¶193

(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 work.

¶194

(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.

¶195

(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 Rules, 2018) through distance mode from the scheduled Universities/institutions enumerated under Schedule-III of the Rules, 2018.

¶196

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¶197

(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.

¶198

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

¶199

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

¶200

48 . 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.

¶201

JUDGE

¶202

Comparing Assistant

Jayanta Neog and 13 Ors. v. the State of Assam and 4 Ors.

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Jayanta Neog and 13 Ors. v. the State of Assam and 4 Ors.

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