Gauhati High Court
WP(C)/3929/2024 on 27 February, 2025
GAHC010156012024
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
Writ Petition (Civil) No. 3929/2024
Sri Madhab Chandra Kalita,
S/o JogeswarKalita,
R/o - Adinggiri Path,Maligaon,
P.O. - Maligaon Railway Headquarters,
PIN - 781011,
Dist. - Kamrup (M), Assam.
...... Petitioner.
-Versus-
1. The State of Assam,
Represented by the Secretary to the Government 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, Kahilipara,
PIN - 781019.
3. The Inspector of Schools,
Kamrup (M) District Circle, Panbazar,
Dist - Kamrup (M), Assam,
PIN - 781001.
4. Smt. NirmaliChoudhury,
P.O. - Maligaon Railway Headquarters,
PIN - 781011,
Dist. - Kamrup (M), Assam.
...... Respondents.
Page 1 of 25
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocates for the petitioner :- Mr. B. Purkayastha.
Advocate for the respondent Nos. 1, 2&3 :- Ms. P. Das.
Advocate for the respondent No. 4 :- Mr. M. Sarma.
Date of Hearing :- 14.02.2025.
Date of Judgment & Order :- 27.02.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. B. Purkayastha, learned counsel for the petitioner;
Ms. P. Das, learned standing counsel for the Secondary Education
Department, appearing for the respondent Nos. 1, 2 & 3; and Mr. M.
Sarma, learned counsel for therespondent No. 4.
2. In this petition, under Article 226 of the Constitution of India,
the petitioner, namely, Sri Madhab Chandra Kalitahasprayed for
setting aside the order, dated 16.07.2024, (Annexure - 5), issued by
the Director of Secondary Education Department, by which he was
debarred from holding the charge of Headmaster (In-Charge) of
GotanagarNambari High School, Kamrup (M) at Guwahati and also
prayed for issuing direction to the respondent authorities to allow him
to hold the charge of Headmaster (In-Charge) of the said school.
Background fact:-
Page 2 of 25
3. The background fact leading to filing of this present petition is
briefly stated as under:-
"The petitioner has been serving as Graduate Assistant
Teacher in Gotanagar Nambari High School, Kamrup (M)
at Guwahati, since 1990 and he was granted the graduate
scale of pay w.e.f. 19.11.1991. He possessed the requisite
qualifications/experiences for being appointed as
regular/in-charge Headmaster of the saidschool as per the
provision of the Rule 14 of the Assam Secondary
Education (Provincialised Schools) Service Rules, 2018.
As per the Rule 14 of the said Rules, for recruitment
to the post of Headmaster of a High School, a candidate
must possesses the requisite qualifications such as
Bachelor Degree from UGC recognized University, B.Ed.
from NCTE recognized Institution affiliated to UGC
recognized University and teaching experience as
Graduate Teacher for a period of 10 years and the
petitioner possessed all the above qualifications and
experiences for being appointed or to hold the charge of
the Headmaster of the school in which he has been
serving and the petitioner had acquired the above degrees
while he was serving.
The pleaded case of the petitioner is that he, after
the enactment of the Right to Education Act, followed by
issuance of guidelines by the NCTE, with regard to
minimum qualifications of teachers of schools, the
Page 3 of 25
Government of Assam had amended the earlier Assam
Secondary Education (Provincialisation) Service Rule, 2003
in the year 2012 and had incorporated the requirement of
B.Ed. degree as minimum qualification for the teachers of
high schools and because of the said requirement for
filling up the posts of Graduate Teachers and Principal of
Secondary Schools or Senior Secondary Schools, the
Government inexercise of vested power, vide Notifications
dated 13.09.2012 and 07.07.2014, had relaxed the
requirement of B.Ed. degree for a period of five years and
filled up the posts of Principal and Graduate Teachers with
a condition that the incumbent concerned would acquire
the B.Ed. degree from any NCTE recognized Institute and
UGC recognized University.
Thereafter, vide Office Memorandum No.ASE.383/
2011/pt./77, dated 28.07.2014, the respondent No. 1 had
superseded all earlier orders/notifications and it had been
decided to allow the teachers of High Schools for acquiring
B.Ed. degree. The Respondent No.1 had also allowed the
teachers to acquire B.Ed. degree on distance mode of
education from Private Institution or University duly
recognized by UGC and approved by NCTE and also
allowed the teachers to take the evening shift classes
where normal classes of the school are not hampered and
for that no prior permission shall be required.
Page 4 of 25
Thereafter, the petitioner hadavailed the deputation
for acquiring his B.Ed. degree, but could not complete the
course within the stipulated time and as per the above
O.M. dated 28.07.2014, as because a teacher can avail
deputation to undergo B.Ed. training only one time in his
service career, as such, he had enrolled for B.Ed. degree
in the Indira Gandhi National Open University (IGNOU)
and thereafter, he had completed his B.Ed. degree in the
year 2016.
Further pleaded case of the petitioner is that after
the enforcement of the Assam Secondary Education
(Provincialised Schools) Service Rules, 2018, the
respondent No.1 had issued another Office Memorandum
dated 22.11.2019, whereby it has been decided to include
the degrees obtained through ODL mode from IGNOU,
KKHSOU, IDOL etc. as valid and acceptable for the direct
recruitment and as well as for promotion.
Thereafter, pursuant to an advertisement dated
11.09.2020, published on 12.09.2020, an addendum dated
29.09.2020, had been issued whereby the DSE, Assam
had incorporated the degrees obtained under ODL mode
conferred by IGNOU, KKHSOU, IDOL and Dibrugarh
University Distance Education as valid degrees.
Further pleaded case of the petitioner is that the
existing regular Headmaster of the School will be retiring
from service on 31.07.2024, and though the petitioner is
Page 5 of 25
senior and qualified, yet, the Director of Secondary
Education, Assam had allowed the respondent No. 4 to
hold the charge, vide impugned order, dated 16.07.2024,
illegally, unlawfully and arbitrarily, depriving the petitioner
by holding that the petitioner had not obtained any prior
permission from the appointing authority to acquire B.Ed.
degree."
4. Being aggrieved, the petitioner has approached this Court by
filing the present petition for granting the relief, as aforesaid.
5. The respondent No. 2, i.e. the Director of Secondary Education,
Assam has filed affidavit-in-opposition, wherein a stand has been
taken that the replacement of an ad hoc appointee by another ad-hoc
appointee is not permissible and the appointment of the respondent
No. 4, Smt. NirmaliChoudhury to hold the charge of Headmistress in
GotanagarNambari High School, Kamrup (M) at Guwahati is only an
adhoc arrangement. Further stand of the respondent No. 2 is that the
petitioner, Sri Madhab Chandra Kalitahad acquired the B.Ed. degree in
the year 2016, while in service, without obtaining prior permission
from the appointing authority and as such, the B.Ed. degree so
acquired by him,though is a valid degree, yet it is misconduct on his
part for being pursued the course without obtaining prior permission
from the appointing authority, in view of the Rule 13 of the Assam
Civil Services (Conduct)Rules, 1965. Whereas,the respondent No. 4
had acquired the B.Ed. degree in the year 2011, on deputation,
andshe has been temporally allowed to act as the Headmaster/In-
Page 6 of 25
Charge of the said school, vide the Directorate order No.440642/109,
dated 16.07.2024.
6. The respondent No. 4, Smti. Nirmali Choudhury has also filed
affidavit-in-opposition, wherein she has taken similar stand like the
respondent No.2. It is also stated that it is a settled proposition of law
that if a statute requires a thing to be done in a particular manner,
that thing has to be done in that manner and that manner only and as
the petitioner had obtained the B.Ed. degree without following the
proper procedure and obtaining permission from the respondent
authorities and though the same may be valid degree, yet, the
process of acquiring the same amounts to misconduct, as he had
notobtained any permission from the respondent authorities.
Therefore, it is contended to dismiss this petition.
Submissions:-
7. Mr. Purkayastha, learned counsel for the petitioner submits that
the petitioner had acquired the whole degree for being appointed as
the In-Charge Headmaster/Headmaster of the concerned school and
in spite of that, citing the Rule 13 of the Assam Civil Services
(Conduct) Rules, 1965, vide order dated 16.07.2024, had appointed
Smt. Nirmali Choudhury (respondent No. 4) to act as the In-Charge
Headmaster of Gotanagar Nambari High School, until further order,
along with financial power to draw and disburse the salary of the
staffs of the school in addition to her normal duties as Assistant
Teacher, as per provision of F.R. 49(c) in place of Sri Achyut Ch.
Sarma, Headmaster, retiring on 31.07.2024.
Page 7 of 25
7.1. Mr. Purkayastha referring to Rule 13 of the Assam Civil Services
(Conduct) Rules, 1965 submits that the said Rule stands relaxed by
the respondent authority by issuing an Office Memorandum No.
ASE.383/2011/pt./77, dated 28.07.2014, the respondent No. 1 had
superseded all earlier orders/notifications and it had been decided to
allow the teachers of High Schools for acquiring B.Ed. degree, and
that the petitioner, with intimation to the Head of the Institution and
Inspector of Schools, had pursued the course.
7.2. Mr. Purkayastha referring to a decision of this Court in the case
of Tankeswar Nath v. State of Assam & ors.[vide order, dated
18.12.2023, in W.P.(C) No. 5419/2023]submits that having been so
acquired from a recognized University; the said Degree is otherwise
valid and acceptable in law and accordingly, allowed the petitioners to
hold the charge of the post of Principal, Sarthebari Higher Secondary
School, Sarthebari.
7.3. Referring to another decision of this Court in Ranjit Kumar
Baruah vs. State of Assam and 3 Others, in W.P.(C) No.
1925/2024, Mr. Purkayastha submits that in a similar circumstanced
case, this Court, vide order dated 21.01.2025, has granted relief to
the petitioner, who is otherwise eligible for holding the post of
Principal of Kuralguri Higher Secondary School, Golaghat as serious
prejudice will be caused to the service interest of the petitioner and
accordingly, the matter was remanded back for passing the
appropriate order allowing the petitioner of the said case to hold the
charge of Principal of the said school.
Page 8 of 25
7.4. Under the aforesaid factual as well as legal position, Mr.
Purkayastha submits that in the present case also, the impugned
order may be set aside and the matter may be remanded back to the
Director of Secondary Education, Assam to pass necessary order for
allowing the petitioner to hold the charge of the post of Headmaster
of Gotanagar Nambari High School.
8. On the other hand, Ms. Das, learned standing counsel for the
respondent Nos. 1, 2&3 submits that the petitioner is not eligible to
hold the charge of In-Charge Head Master of Gotanagar Nambari High
School,in view of the Rule 13 of the Assam Civil Services (Conduct)
Rules, 1965. Ms. Das, further submits that the petitioner had obtained
the B.Ed. degree without formal permission of the authority and
therefore, he cannot be allowed to hold the charge of the post of In-
Charge Headmaster of Gotanagar Nambari High School on account of
his misconduct. Therefore, Ms. Das has contended to dismiss this
petition.
9. Whereas, Mr. Sarma, learned counsel for the respondent No.
4,subscribes the submission of Ms. Das, learned standing counsel for
the respondent Nos. 1, 2 & 3 and reiterated the stand taken in the
affidavit-in-opposition. However, referring to a decision of Allahabad
High Court in Anurag Mehrotra vs. State of U.P. through
Additional Chief Secretary Finance Department L. Ko and
Others, in Service Single No. 33425/2019, Mr. Sarma submits
that the Office Memorandum, upon which the petitioner has relied
upon, cannot override the Rule 13 of the Assam Civil Services
(Conduct) Rules, 1965 and that the said Office Memorandum was
Page 9 of 25
issued keeping in mind of the new Right to Education Act, wherein
acquiring of B.Ed. degree by the teachers, is made compulsory and
relaxed the procedure of obtaining prior permission from the
respondent authorities, but, the said Office Memorandum cannot
override the Rule framed under Article 309 of the Constitution of India
and in case of conflict the Rule made under Article 309 shall prevail.
Mr. Sarma, therefore, contended to dismiss the petition.
Discussion:-
10. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the petition as well as the
documents placed on record and also perused the affidavit-in-
oppositions filed by the respondents and also the decisions referred
by the learned counsel for both the parties.
11. Before a discussion is directed in to the issues raised in this
petition, it would be apposite to refer to Rule 13 of the Assam Civil
Services (Conduct) Rules, 1965 which reads as under:-
"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:
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
Page 10 of 25
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."
12. This Rule was discussed elaborately by a co-ordinate bench of
this Court in the case of Tankeswar Nath (supra) wherein it has
been held as under:
"5. 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.
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 may draw a disciplinary
proceeding against the government
employee. The provisions of Rule 13 of the
Rules of 1965 cannot be invoked to
invalidate any degree acquired by a
government employee, the course of study
for which the government employee had
Page 11 of 25
prosecuted without previous permission
from the authorities.
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.
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.
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
Page 12 of 25
petitioner in Krishna Kanta Handique State
Open University, which is impermissible.
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.
9. 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 having 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 said Rules of 2018; a legal
right has accrued to the petitioner to hold
the charge of the post of Principal,
Sarthebari Higher Secondary School,
Sarthebari."
13. Again in the case of Ranjit Kumar Baruah (supra) a co-
ordinate bench of this Court has held that -
"16. At this stage, this Court would like to note that
the denial to the petitioner to hold the charge of the
post of Principal of Kuralguri Higher Secondary School,
Golaghat, being on the ground that he had pursued his
MA Degree without obtaining prior permission from the
competent authority, however, it cannot lose sight of
the fact that the petitioner is a teacher and he is,
therefore, required to update his knowledge so as to
Page 13 of 25
benefit the students who are being taught by him in the
said school.
17. The good teacher is a perennial student. Quest for
learning never ends in a good student. Continuous
pursuit of knowledge by teachers deepens understanding
and widens horizons. Intellectual capital created by
continuous learning even after securing employment,
becomes an asset for the institution. The further
learning of the teachers in fact endures to the benefit
of the students. The teachers can impart what they know
and have learnt. The quality of teaching is
proportional to the depth of learning of the teachers.
The environment or ecology of the institution and the
system has to encourage and support teachers who are
engaged in higher learning. But there is a caveat. The
right of the teachers to pursue courses of higher
learning or acquiring additional academic
qualifications is circumscribed by the current demands
of the institution and the extant requirements of the
students.
18. The pursuit of higher learning or the endeavours to
acquire additional qualifications by the teachers
cannot interfere with their primary duty of teaching.
The interests of the students are paramount and cannot
be compromised. In the event of a conflict between the
requirements of the course being pursued by the teacher
and the demands of the academic schedule of the
students or the needs of the institution, the
authorities shall take a decision in the matter. They
are best placed to take such decision. The decision
shall be taken by according primacy to the academic
needs of the students and the institution. However,
when there is no such conflict no restriction can be
placed on the acquisition of additional qualifications
by a teacher and no disqualification will accrue to
such teacher.
Page 14 of 25
19. In the case on hand, though the respondent
authorities had proceeded to deny to the petitioner to
hold the charge of the post of Principal of Kuralguri
Higher Secondary School, Golaghat, but, they have not
brought on record any material to demonstrate that
pursuing of MA Degree by the petitioner, herein,
through Distance Education Mode from Dibrugarh
University, had in any manner, compromised his duties
as a teacher of the said school during the period he
had so pursued the said MA course. The petitioner
having pursued the said MA course in the Distance
Education Mode from a recognized institution, the same
cannot be said to have hampered the duties required to
be discharged by him as a teacher of the school, in
question.
20. In view of the above conclusions; this Court is of
the considered view that the petitioner, herein, is
eligible for holding the charge of the post of
Principal of Kuralguri Higher Secondary School,
Golaghat, and a junior teacher, in the meantime, having
been so permitted to hold the charge of the post of
Principal of the said school; prejudice has been caused
to the service interest of the petitioner, herein.
Accordingly, the impugned order, dated 12.02.2024,
issued by the Director, Secondary Education Department,
Assam, stands interfered with.
14. That a perusal of the Office Memorandum No.
ASE.383/2011/pt./77, dated 28.07.2014, indicates that the rigors of
Rule 13 of the Assam Civil Services (Conduct) Rules, 1965 stands
diluted considerably. As per Clause 6 of the Memorandum, no
provision is required. The said Office Memorandum was issued
keeping in mind of the new Right to Education Act, wherein acquiring
of B.Ed. degree by the teachers, is made compulsory. The
Memorandum read as under:-
Page 15 of 25
"GOVERNMENT OF ASSAM
SECONDARY EDUCATION DEPARTMENT, DISPUR,
GUWAHATI-06.
No.ASE.383/2011/pt/77 dated Dispur the 28th July
2014
"OFFICE MEMORANDUM
Subject:-Deputation of Teachers of Higher Secondary School and
High School/High Madrassa to undergo B.Ed. Training and
procedure thereof.
The Government have relaxed required educational and
professional qualification of B.Ed./IT degree for the post of teachers
in provincialised Higher Secondary School and High School/High
Madrassa during the period up to 1" January, 2015 vide Notification
No ASE 324/2009/138 Dated 13.09.2012 on certain condition that
they will acquire the BT/ B.Ed. degree from recognized University
within 5 years from the date of joining In service in exercise of
powers under proviso to Schedule-II of the Assam Secondary
Education (Provincialised) Service (Amendment) Rules, 2012.
Similarly, in exercise of powers under rule 29 of the Assam
Secondary Education (Provincialised) Service Rules, 2003 and taking
into consideration the circumstances under which some of the
teachers could not obtain the B.Ed. degree, the required educational
and professional qualification of BT/B.Ed. degree for the post of
Principal of provincialised Higher Secondary School has been
relaxed for the period up to 1st January, 2015 vide Notification No
ASE.82/2014/Pt/43 Dated 07.07.2014 on certain condition that the
persons appointed with such relaxation will have to acquire the
BT/B.Ed. degree from recognized University within 3 years from the
date of joining in the post of Principal on promotion. As such, all the
above teachers are now required to obtain BT/B.Ed. degree before
completion of the stipulated period.
Therefore, in supersession of all earlier orders issued in
regards of deputation of teachers for B.Ed. training course, it has
been decided to depute/allow the teachers of Higher Secondary
School and High School/High Madrassa for acquiring BT/B.Ed.
degree as follows:
1. The Teachers appointed in the post of Principal without
BT/B.Ed degree if any, shall be deputed to undergo B.Ed. training in
order of seniority within next 2 years from their date of joining on
promotion.
Page 16 of 25
2. The Post Graduate Teacher and Graduate Teachers of both
Government and provincialised Higher Secondary and High
School/High Madrassa who have completed at least 5 years of
continuous regular service shall be deputed to undergo B.Ed. degree
in Government B.Ed. College in the State in order of seniority.
3. The deputation to undergo B.Ed. training shall be given only
one time in the career. In case the teachers fail to pass the B.Ed
examination in one attempt, he will not be considered for deputation
for another term.
4. The terms and conditions for deputation such as payment of
salary during the period of deputation, grant of special leave for
entire period of deputation etc., will be as per State Government
rules in respect of the teachers deputed as per Para 1 and 2 above.
5. The Director of Secondary Education, Assam will. identify all
such candidates and prepare cadre-wise list and furnish the same to
the Government within 15 days. Other teachers shall be deputed to
undergo B.Ed. training after the said list is fully exhausted.
6. The persons appointed in the post of the Post Graduate
Teacher, Graduate Teachers in provincialised Higher Secondary and
High School/High Madrassa with relaxation of professional
qualification of B.Ed. degree as per Government Notification No
ASE.324/2009/138 Dated 13.09.2012, may pursue B.Ed. degree from
the B.Ed. Colleges In the State which have affiliation by the Gauhati
University, Dibrugarh University and Assam University in the
evening shift Classes where normal classes of the Schools are not
hampered. No prior permission shall be required. The teachers who
desires to obtain B.Ed. degree from such Colleges may get admission
with intimation to respective Head of the Institution and the
Inspector of Schools concerned. The competent authority shall grant
leave to enable the teacher to appear Examination, Practical Classes
etc.
7. The teachers of any cadre in Higher Secondary and High
School/High Madrassa may also pursue B.Ed. degree on distance
mode of Education from the Private Institution/University duly
recognized by UGC and approved by NCTE.
Sd/-S.C. Das, IAS
Additional Chief Secretary to the Government of Assam
Secondary Education Department
Memo No ASE383/2011/P/77-A Dated Dispur the 28th July, 2014"
Page 17 of 25
15. Further, it is to be mentioned here that Article 51A of the
Constitution of India provides for Fundamental Duties and Clause (j)
provides that every citizen of this country shall strive towards
excellence in all spheres to higher level of achievement. The Clause
read as under:-
51-A:-It shall be the duty of every citizen of
India--
(j) to strive towards excellence in all spheres
of individual and collective activity so
that the nation constantly rises to higher
levels of endeavour and achievement.
15.1. Now it is judicially recognized that that fundamental duties
are equally important as fundamental rights. Though fundamental
duties are not enforceable like fundamental rights they cannot be
overlooked as duties in Part IV A of the Constitution of India. In the
case of AIIMS Students Union vs. AIIMS (2002) 1 SCC 428),
Hon'ble Supreme Court while dealing with the issue of fundamental
duties held as under:-
"58. The preamble to the Constitution of India
secures, as one of its objects, fraternity
assuring the dignity of the individual and the
unity and integrity of the nation to "we the
people of India".
....................................
………………………………
Rabindra Nath Tagore’s vision of a free India
cannot be complete unless “knowledge is free”
and “tireless striving stretches its arms
Page 18 of 25
towards perfection”. Almost a quarter century
after the people of India have given the
Constitution unto themselves, a chapter on
fundamental duties came to be incorporated in
the Constitution. Fundamental duties, as
defined in Article 51-A, are not made
enforceable by a writ of court just as the
fundamental rights are, but it cannot be lost
sight of that “duties” in Part IV-A Article 51-
A are prefixed by the same word “fundamental”
which was prefixed by the founding fathers of
the Constitution to “rights” in Part III. Every
citizen of India is fundamentally obligated to
develop a scientific temper and humanism. He is
fundamentally duty-bound to strive towards
excellence in all spheres of individual and
collective activity so that the nation
constantly rises to higher levels of endeavour
and achievements. State is, all the citizens
placed together and hence though Article 51-A
does not expressly cast any fundamental duty on
the State, the fact remains that the duty of
every citizen of India is the collective duty
of the State.
……………………………
……………………………
Fundamental duties, though not enforceable by a
writ of the court, yet provide a valuable guide
and aid to interpretation of constitutional and
legal issues. In case of doubt or choice,
people’s wish as manifested through Article 51-
A, can serve as a guide not only for resolving
the issue but also for constructing or moulding
the relief to be given by the courts.
Page 19 of 25
Constitutional enactment of fundamental duties,
if it has to have any meaning, must be used by
courts as a tool to tab, even a taboo, on State
action drifting away from constitutional
values.”
15.2. In the case of Shri Rangnath Mishra vs. Union of
India reported in (2003) 7 SCC 133, Hon’ble Supreme Court has
held that fundamental duties should not only be enforced by legal
sanctions but also by social sanctions.
16. It is to be noted here that Rule 14 of the Assam Secondary
Education (Provincialised Schools) Service Rule, 2018 provides for
recruitment to the post of Headmaster of High School. The
qualification prescribed for the post of Headmaster is that a candidate
must possess Bachelor Degree from UGC recognized University, B.Ed.
from NCTE recognized Institution affiliated to UGC recognized
University and teaching experience as Graduate Teacher for a period
of 10 years.
17. It also appears from the pleadings and the documents annexed
therewith that the petitioner has possessed all the requisite
qualification for being appointed as Headmaster. He possesses B. Sc.
Degree, M.A Degree and B.Ed. Degree (Annexure 2A, 2B and 3)
and he has been serving as Graduate Teacher in Gotanagar Nambari
High School since the year 19.11.1991. Whereas, the respondent No.
4 has been working in the said School, since 01.03.1999.
18. It also appears that the petitioner had pursued B.Ed. Degree
from the Indira Gandhi National Open University in June 2016. It is
Page 20 of 25
also not in dispute that the degree obtained under open distance
learning mode conferred by IGNOU and KKHSOU and IDOL and
Dibrugarh University Distance Education as valid Degree (Annexure
11A). Further it appears that the petitioner had pursued the B.Ed.
course after obtaining NOC from the Headmaster of the School in
which has been serving (Annexure-10A).
19. That, perusal of the impugned order dated 16.07.2024
(Annexure-5) reveals that the respondent No.2, the Director of
Secondary Education, Assam has rejected the candidature of the
petitioner for being pursued B.Ed. course without prior permission
from appointing authority, which is found to be in violation of clause
13 of the Assam Civil Services (Conduct) Rules, 1965, instead allowed
the respondent No.4 to hold the post of In-Charge Headmaster, who
was in the fourth position of the seniority list.
20. Now, the question is whether the impugned action of the
respondent No. 2 and the impugned order, dated 16.07.2024,
allowing the respondent No.4 to hold the charge of In-Charge
Headmaster of Gotanagar Nambari High School, withstands the
principle of Wednesbury reasonableness [(Associated Provincial
Picture Houses Ltd. vs. Wednesbury Corporation (1948) 1
KB 223)] i.e. whether the respondent No.2
1. had given undue relevance to facts that in
reality lacked the relevance for being
considered in the decision-making process,
2. had not given relevance to facts that were
relevant and worthy of being considered in the
decision-making process,
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3. had made a decision that was completely absurd,
a decision so unreasonable that no reasonable
authority could have possibly made it,
Finding:-
21. But, having examined the impugned order, dated 16.07.2024, in
the light of the decision of Hon’ble Supreme Court in the case of
AIIMS Students Union (supra) and Shri Rangnath
Mishra(supra) and also in the light of the Constitutional values as
enshrined in Article 51A of the Constitution of India specially in Clause
(j), this court afraid, the order impugned in this petition failed to
withstand the test of reasonableness for the simple reason that while
passing the impugned order the respondent No.2 had not taken into
account the Office Memorandum, dated 28th July 2014, clause 6 of
which provides that “No permission is required.” and
subsequent Memoranda, allowing the teachers of to obtain B.Ed.
degree, under open distance learning mode, conferred by IGNOU and
KKHSOU and IDOL and Dibrugarh University.
22. This court has taken note of the submission of Ms. Das, learned
standing counsel for the respondent Nos. 1, 2 & 3 and Mr. Sarma,
learned counsel for the respondent No. 4, who had submited that the
petitioner is not eligible to hold the post of Headmaster in view of the
Rule 13 of the Assam Civil Services (Conduct) Rules, 1965, as he
obtained the B.Ed. degree without formal permission of the authority.
But, the said submissions left this Court unimpressed in as much as
through a long stint of judicial pronouncements it has been
Page 22 of 25
established that a degree, conferred by a recognized University, is a
valid degree and it cannot be invalidated even if it was pursued
without permission from the authority.
23. If the degree obtained by the petitioner is a valid degree and if
the qualification for holding the post of Head Master is a graduation
with B.Ed. degree and if the petitioner is otherwise eligible by
satisfying the requisite qualification, the petitioner, being the senior
most teacher of the School, is absolutely eligible for holding the post
of In-Charge Head Master of the said School. Though the impugned
order is an ad-hoc arrangement yet, it violates the legitimate right of
the petitioner and he cannot be penalised solely for performance of
his fundamental duty as provide in Article 51A (j) of the Constitution
of India, i.e. striving towards excellence in academic sphere by
pursuing B.Ed. degree. It has been already held by Hon’ble Supreme
Court in the case of AIIMS Student Union (supra) that though
Article 51-A does not expressly cast any fundamental duty on the
State, the fact remains that the duty of every citizen of India is the
collective duty of the State and the state is, all the citizens placed
together.
24. The only contention of the respondents is the alleged
misconduct of the petitioner obtained B.Ed. degree, without formal
permission of the authority, but, the same is yet to be proved by the
respondent authorities. It is not the case of the respondents that
while pursuing the degree by distant mode from the IGNOU, the
petitioner had neglected his duty. And as per clause 6 of the Office
Memorandum, dated 28.07.2014, no prior permission shall be
Page 23 of 25
required. The only requirement is intimation to respective Head of the
Institution and the Inspector of Schools concerned, which the
petitioner did vide Annexure-10A.
25. Besides, the alleged misconduct is yet to be established against
the present petitioner and unless the same is established following
due process of law, he cannot be deprived of his legitimate right
being the senior most teacher of the said School. As already
discussed, the petitioner had pursued the course with intimation to
the Head of the Institution and the Inspector of Schools. And a
conjoint reading of the Rule 13 and the Office Memorandum dated
28.07.2014 and Article 51A(J) of the Constitution of India, this Court
is left unimpressed that the petitioner had committed any misconduct
so as to deprive of him from holding the post of In-Charge
Headmaster of Gotanagar Nambari Janajati High School.
26. This court has also taken note of the submission of Mr. Sarma
and also gone through the decision in Anurag Mehrotra (supra),
wherein it has been held that if there is conflict between executive
instruction and of the Rule made under Article 309 of the Constitution
of India. There is no quarrel at the bar about the proposition of law
laid down in the said case. But, as discussed here in above, the said
proposition has also to be considered in the light of the principle
enshrined in Article 51A Clause (j) of the Constitution of India. As held
by Hon’ble Supreme Court in the case of AIIMS Student Union
(supra), in case of doubt or choice, people’s wish as manifested
through Article 51-A, can serve as a guide not only for resolving the
Page 24 of 25
issue, but also for constructing or moulding the relief to be given by
the courts.
27. In view of above, and also taking note of the decisions of
Hon’ble Supreme Court as well as of this Court, this Court is of the
view that the impugned order, dated 16.07.2024, fails to withstand
the test of reasonableness. And on such count, the petitioner has
succeeded in establishing a clear case for interference of this court.
28. Accordingly, the impugned order, dated 16.07.2024, stands set
aside and quashed. The matter stands remanded to the respondent
No.2, i.e. Director of Secondary Education, Assam to pass an
appropriate order allowing the petitioner herein, to hold the charge of
Headmaster of GotanagarNambari High School.
29. The petitioner shall obtain a certified copy of this order and
place the same before the respondent authorities within a period of 1
(one) week from the date of receipt of the order.
30. The aforesaid exercise has to be carried out by the respondent
authorities within a period of 1(one) month from the date of receipt
of the certified copy of this order.
31. In terms of above, this writ petition stands disposed of. The
parties have to bear their own cost.
JUDGE
Comparing Assistant
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