Tankeswar Nath Vs the State of Assam and 3 Ors.

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Page No.# 1/11

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GAHC010141692025

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2026:GAU-AS:6669

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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)/3658/2025

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TANKESWAR NATH

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SON OF 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

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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

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ASSAM KAHILIPARA GUWAHATI ASSAM PIN-781019

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3:THE INSPECTOR OF SCHOOLS

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BARPETA DISTRICT CIRCLE BARPETA ASSAM

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4:RATUL DAS POST GRADUATE TEACHER SARTHEBARI H.S. SCHOOL

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VILL AN DP.O. SARTHEBARI DIST. BARPETA ASSAM PIN-781307

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BEFORE

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HON’BLE MRS. JUSTICE SHAMIMA JAHAN

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Advocate for the petitioner(s): Mr. B. Purukayastha

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Advocate for the respondent(s): Mr. D. Musahary,

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SC, Secondary Education Mr. N. Sarma, R-4,

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Date on which judgment was reserved : NA

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Date of pronouncement of judgment : 11.05.2026

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Whether the pronouncement is of the : NA

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operative part of the judgment?

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Whether the full judgment has been : Yes

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pronounced?

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. B. Purukayastha, learned counsel for the petitioner. Also heard Mr. D. Musahary, learned Standing Counsel, Secondary Education and Mr. N. Sarma, learned counsel for the respondent No. 4.

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Heard Mr. B. Purukayastha, learned counsel for the petitioner. Also heard Mr. D. Musahary, learned Standing Counsel, Secondary Education and Mr. N. Sarma, learned

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counsel for the respondent No. 4.

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By this application filed under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of the impugned order dated 21.06.2025, issued by respondent No. 2, i.e., the Department of Secondary Education, Assam, by which, the prayer of the petitioner to appoint him as In-charge Principal of Sarthebari Higher Secondary School was rejected. The petitioner has also prayed for allowing him to hold the post of In-charge Principal of the said school as per the order dated 18.12.2023, passed by this Court, by which the Director of Secondary Education Department was directed to allow the petitioner to hold the charge of Principal of Sarthebari Higher Secondary School, after due verification of the particulars of all the candidates in the fray.

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The case of the petitioner is that he was appointed as a Teacher vide order dated 31.03.1992, and he startedgetting Graduate Scale of Pay by order dated 30.12.1993 and that on 30^th of March, 2023, one Sri Jiten Chandra Barman, MA B.Ed, who was working as the Assistant Teacher of Sarthebari Higher Secondary School, was allowed to hold the charge of Principal of the said school instead of the petitioner, who was by then, eligible for appointment to the said post. Aggrieved by his non-appointment and allowing his junior to the post of Incharge Principal of the said school, the petitioner challenged the same by filing a writ petition being WP(C) No. 5419 of 2023, and this Court vide order dated 18.12.2023, remanded the matter back to the Director of Secondary Education Department by directing the said authority to pass appropriate order(s), allowing the petitioner to hold the charge of the post of the Principal, after verification of particulars of other candidates along with the petitioner, as stated above.

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In pursuance of the said Judgment and Order, the Director of Secondary Education, Assam, after considering the particulars of the petitioner as well as other eligible candidates, passed an order on 07.04.2024, and held that although the petitioner, during his service period, acquired the MA Degree from Krishnakanta Handique State Open University (KKHSOU, in short), which is a valid degree, but it was stated that the petitioner, by not obtaining previous permission from the appointing authority, for that purpose, as per Rule 13 of the Assam Civil Services (Conduct) Rules, 1985, a disciplinary proceeding was directed to be initiated against him, and in view of the said fact, the petitioner was not allowed to hold the post of In-charge Principal of the said school.

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The petitioner, being aggrieved again filed another writ petition, i.e., WP(C) No. 2136 of 2024, challenging the said order and this Court, vide order dated 11.04.2025, by taking up three writ petitions, one being challenge made to the order dated 07.04.2024, the second being challenge made to the show cause notice issued on 19.04.2024 and the other being the challenge made to the punishment of warning imposed upon the petitioner, disposed of the said writ petitions by setting aside the order dated 07.04.2024, the show cause notice dated 19.04.2024 and the punishment imposed upon the petitioner.

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This Court, on the ground that not obtaining the prior permission from the appointing authority being the reason for rejection of his claim for appointment as In-Charge Principal, can only result in initiating disciplinary proceeding and not in rejecting the claim of a candidate for his appointment as an In-charge Principal. This Court, by the said order dated 11.04.2025, had, however, not interfered with the communication dated 19.12.2023, by which a direction was given to initiate disciplinary proceeding against the candidates, who had not

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taken prior permission from the appointing authority.

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Thereafter, the petitioner, on 25.04.2025, filed a petition before the Director of Secondary Education, Assam, praying for allowing him to act as Principal InCharge of the said school and the Director of Secondary Education, Assam, by order dated 21.06.2025, had held that in view of the earlier order dated 18.12.2023, hearing was conducted by the Joint Director of Secondary Education, Assam, and a speaking order dated 07.04.2024 was passed, directing the Inspector of Schools, Barpeta, to draw departmental proceedings against the petitioner for his misconduct in view of violation of Rule 13 of the Assam Civil Service (Conduct) Rules, 1965 (hereinafter, referred to as the Rules, 1965), and that in place of the petitioner, one Jiten Chandra Barman was allowed to act as the In-Charge Principal of the said school, as stated above. It was further observed that Rule 12 (3) (v) of the Assam Secondary Education (Provincialized Schools) Service Rules, 2018, provides that if the age of the candidate is more than 57 years on the 1st of January, then he shall not be considered for appointment as a Principal of the said school. In case of the petitioner, it was observed that his date of birth was 01/03/1967, and by calculation, the petitioner would be 57 years and 10 months on 1 st of January, 2025, and due to this inability or in other words, for non-fulfillment of the criteria,the prayer of the petitioner for allowing him to act as the Principal In-charge of the said school was again rejected and in place of the petitioner, the respondent No. 4 was temporarily allowed to act as the Principal In-charge of the said school. Aggrieved by the said order dated 21.06.2025, the petitioner has filed the instant petition, challenging the same and to allow him to be appointed as the In-Charge Principal of the said school. The petitioner also stated that in the seniority list of Sarthebari Higher Secondary School, annexed by the petitioner, it

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is seen that petitioner had obtained the Graduate scale of pay from the year 1993 and the respondent No. 4 had obtained the same in the year 2009 and it is also submitted by the petitioner that he is the senior most teacher of the said school and was eligible to be appointed as the In-charge Principal.

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In the affidavit filed by respondent No. 2, another ground was taken against the petitioner to the effect that the petitioner had not taken leave on 04.04.2026 as well as on 24.06.2025, the days on which, he signed the affidavits for filing the case before the High Court. It was further stated that on 1 st of January, 2025, the petitioner was more than 57 years of age and he, as such, cannot be recruited to the post of In-charge Principal.

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The learned counsel for the petitioner submits that the petitioner became eligible for appointment as In-charge Principal of the said school in the year 2023, he having not completed 57 years of age, but the respondent authorities have not allowed, on one ground or the other, first being his not obtaining the prior permission from the authority, while acquiring his MA degree in the year 2016, for which, a show cause notice was issued and the punishment was imposed by the Department. The learned counsel further submits that nonobtaining of the previous sanction cannot be an impediment for appointment as an In-Charge Principal, and as such, this Court vide order dated 18.12.2023, directed the Director of Secondary Education, Assam to consider his case. The counsel for the petitioner further states that at the first instance, when the junior to the petitioner was appointed as the In-charge Principal of the said school and the petitioner was not given the appointment, a writ petition was filed wherein, this Court by order dated 18.12.2023, had directed the Director of Secondary Education Department to consider the case of the petitioner as well

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as other candidates. The petitioner, however was not considered and a new ground that the petitioner did not take permission from the appointing authority, while obtaining his MA Degree from KKHSOU was raised which was put to challenge by the petitioner in yet another writ petition and this Court, vide order dated 11.04.2025, had set aside the charge sheet, the impugned order as well as the punishment inflicted upon the petitioner and then again, a new ground was taken up by the authorities concerned, i.e., the petitioner is not eligible since he has completed 57 years of age and the petitioner was again not considered for the post of In-charge Principal.

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The learned counsel further submitted that during pendency of the instant writ petition, the respondent No. 2 has filed an affidavit-in-opposition, raising a new ground that the petitioner signed the affidavit on 04.04.2025 as well as on 24.06.2026 by coming down to Guwahati for filing the writ petitions and that in the attendance register the petitioner was shown present in the school. Finding this alleged irregularity, a show cause notice was again issued to the petitioner on 05.01.2026, during the pendency of this writ petition. The Department had also given the statement of allegations to the petitioner on 05.01.2026 itself. The learned counsel for the petitioner, in response to the said ground submits that he had not taken leave on 04.04.2025 and that after school hours, he had come down to Guwahati for signing the affidavits. He further submits that on 24.06.2025, he had obtained a casual leave through the WhatsApp Group which was recorded in the attendance register itself and as such, he submits that there was no cause of action against him, as stated by the respondent. He, therefore, submits that the respondent had taken one or the other plea to reject the candidature of the petitioner.

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On the other hand, Ms. D Mushahary Ld. Standing Counsel for the Secondary Education submits that by Rule 12 (3) (v) of the 2018 Rules, the petitioner became ineligible for appointment to the post of Principal/In charge Principal and that there was no permission accorded to the petitioner to take leave on 24.06.2025. She relied on the affidavit filed by Respondent No. 2.

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From the contentions made in the respective pleadings of the parties and also from the submissions of the learned counsels for both the parties, it is held as follows:-

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Admittedly, the petitioner has joined the school on 31.03.1992 and he obtained his graduate scale of pay on 30.12.1993 and he was the senior teacher of his school. Further, the post of Principal fell vacant on 31.03.2023, on which date the erstwhile Principal retired, but the Director of Secondary Education, Assam, appointed one Jiten Chandra Barman instead of the petitioner to act as the Incharge Principal of the said school. The petitioner challenged the same by filing a writ petition, wherein he got relief to the extent that he should be considered for the said post. However he was not considered on the ground that he did not have the previous permission, as stated above, which is again put to challenge and the show cause notice as well as the punishment of warning imposed together with the impugned order were set aside. However, again the petitioner was not considered for appointment by taking into account Rule 12 (3) (v) of the said Rules and in his place, the respondent No. 4 was temporarily appointed. Rule 12 (3) (v) is quoted below:-

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“12 (3)(v) - The age of the candidates must not be more than 57 years as on the first January of the year of recruitment:

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Provided that the service and teaching experience acquired in a School during provincialised period shall be counted. The period rendered prior to provincialisation of the School shall not be counted.”

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A bare perusal of the said rule provides that the age of the candidates should not be more than 57 years on the 1 st of January of the year of recruitment for appointment to the post of Principal.

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It is stated at the Bar that the same conditions provided in the said Rule is applicable for appointment to the post of In-charge Principal too. On a careful perusal of the said provision, it becomes clear that vacancy having arisen for the year 2023, the bar of Rule 12 (3) (v) would not stand in the way of appointing the petitioner as the In-charge Principal. Rule 12 (4) provides that the Government in the Secondary Education Department shall issue office memorandum with detailed recruitment procedure for the post of Principal and Rule 12 (5) (i) provides that before the end of each year, the Inspector of Schools, who is the Member Secretary of the District Selection Committee, constituted under Rule 12 (6), shall make an assessment of the number of vacancies in the cadres of Principal to be filled up in the next year within the District. As such the year of recruitment as contemplated under Rule 12 (3) (v) of the Rules, 2018 cannot be the year of 2025 or 2026. Further, since the Rule provides for initiation of the process in the previous year and also since the vacancy arose in the instant case in the year 2023, the year of recruitment would be 2023, and not 2025 or 2026. Therefore, in the year 2023, on calculation, the age of the petitioner would be much less than 57 years. It is seen that from the year 2023 onwards, the petitioner was denied his rights on one ground or the other and the said grounds had failed before this Court and

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the time had elapsed due to the same. It is required to be mentioned herein that the other ground that the petitioner did not obtain the permission from the appropriate authority was also negated by this Court, as mentioned above. It is also required to be mentioned herein that the MA Degree acquired by the petitioner from a recognized University as a private candidate is also valid and acceptable in law, as has been held by this Court in IA(C)No. 2615/2023, dated 28.09.2023 (Mouchumi Saharia -Vs- Smriti Rekha Kalita & Others; Others). In view of the said findings, the petitioner being the senior most teacher, has a legal right as accrued to him to hold the charge of the Principal of Sarthebari Higher Secondary School. Another ground which is the latest one taken by the Director of Secondary Education, Assam that the petitioner had not taken leave, while coming down to Guwahati, to sign the affidavit, is also to be re-considered by the authorities concerned, in view of the fact that the petitioner had admitted that he came after the school hours to Guwahati and that on the subsequent day, he applied for leave in the manner prescribed and came down to Guwahati.

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Accordingly, the matter stands remanded back to the Director of Secondary Education, Assam, who shall pass an appropriate order, allowing the petitioner to hold the post of In-charge Principal of the Sarthebari Higher Secondary School, without being influenced by any show cause notice issued to the petitioner, for the allegations that he had not taken leave.

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The exercise mentioned above has to be carried out within a period of 3 (three) weeks from the date of receipt of a certified copy of this Judgment and Order. The petitioner is further directed to obtain a certified copy of this Judgment and place it before respondent No. 2.

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Consequently, the petition is disposed of to the extent as mentioned

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above.

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No order as to costs.

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JUDGE

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Comparing Assistant

Tankeswar Nath v. the State of Assam and 3 Ors.

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Tankeswar Nath v. the State of Assam and 3 Ors.

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