Right To Be Considered For Promotion Is A Fundamental Right, Right To Promotion Is Not: Gauhati High Court Reiterates

A division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia relied on a judgement passed by the co-ordinate bench in Kripa Sindhu Das Vs. State of Assam & Ors it was held :

"The right to be considered for promotion is a fundamental right, while the right to promotion is (not) fundamental right. It was held that the right of the Assistant Head Master to be promoted to the post of Head Master is not denied or diminished as he still can be promoted to the post of Head Master by taking into account his seniority in the cadre of Graduate Teacher and therefore his chance of getting promoted to the post of Head Master is not lost."

The Bench after carefully perusing the said decision noted that the issue raised in this case had already been specifically dealt with and declared that it was in complete agreement with the views arrived at by the Co-ordinate Bench.

It was also noted that no averments or submissions were made by the parties herein that the cited decision required reconsideration either. Accordingly, finding no reasons to take a different view in the present proceedings, the plea was dismissed. 

The petitioner was initially appointed as a Graduate Teacher in C.S. Rawanapur Higher Secondary School in 12.10.1988 issued by the Inspector of Schools, Jorhat District Circle. By order dated 16.06.1994 issued by the Director of Secondary Education, Assam, she was transferred to Sarojini Devi Uccha Balika Bidyalaya.

She was also appointed as In-charge, Headmistress of that school on 26.04.2016 by the Director of Secondary Education upon the post falling vacant due to the retirement of the previous incumbent. Later she was promoted to the position of Assistant Headmistress while she continued to also discharge her services as the In-charge, Headmistress of the said school since 01.05.2016.

Meanwhile, the Department of Secondary Education, Government of Assam advertised the post of Headmaster along with other posts lying vacant including those which were likely to fall vacant by 31.12.2017. In response to the said advertisement, the petitioner as well as respondent No. 5 applied for the post of Headmistress of Sarojini Devi Ucchal Balika Bidyalaya.

However, respondent No. 5 was selected for the post of Headmistress in Sarojini Devi.

Being aggrieved, the petitioner moved the Court challenging the validity of Rule 14(2) of the Assam Secondary Education (Provincialisation) Service Rules while praying for consequential order for setting aside the impugned selection.

The Petitioner argued that under the Rules, the post of Headmaster is included in the cadre of Class-II (Senior) and the post of Assistant Headmaster is included in the cadre Class-II (Junior) under the Rules. The post of Graduate Teacher is also included in the cadre of Class-II (Junior). It was submitted that the provisions for recruitment to the post of Headmaster/ Assistant Headmaster are prescribed under Rule 14 of the Rules of 2003.

He strenuously submitted that although under Rule 14(2), it is prescribed that the post of Headmaster shall be filled upon by promotion from school wise seniority list on the recommendation of the State Selection Board, Assam and the selection of the incumbent shall be based upon seniority and satisfactory ACR for the three (3) consecutive years, but it is also provided that the seniority shall be determined from the date of receiving the Graduate Scale as per Rule 24(2).

The counsel for the petitioner submitted that it is this provision for deciding the seniority on the basis of receiving the Graduate Scale which is opposed to the scheme of the Rules and more particularly the class and cadre specified under the Rules.

He argued that to the extent the Rule provides for deciding the seniority on the basis of receipt of Graduate Scale of Pay as per Rule 24(2), the instant Rule i.e. Rule 14(2) is violative of Article 14 of the Constitution of India as it has the effect of treating two different posts in the cadre to be equal for the purposes of being feeder posts for promotion to the post of Head Master of the School.

According to the counsel for the petitioner, respondent No. 5 was not eligible for the selection to the post of Head Master for the years 2014, 2015 and 2016 as she did not fulfil the eligibility criteria because she did not acquire the requisite qualification of B.Ed Degree. On the contrary, the petitioner had all the requisite qualifications. She was a Master's Degree Holder as well as a B.Ed Degree holder and consequently she was selected for promotion to the post of Assistant Headmistress in the year 2017.

The Government Advocate argued that the matter in respect of the vires of Rule 14(2) had already been dealt with by a Co-ordinate Bench of this Court in Kripa Sindhu Das Vs. State of Assam & Ors. Further, he submitted that the validity of the section has already been upheld.

The same was confirmed by the counsel for respondent number 5, who was appointed as headmistress.

The Court went through the relevant judgement passed by the coordinate bench and noted that the Co-ordinate Bench held that as the Rules permit, there is no infirmity in taking School-wise seniority in the cadre of Graduate Teacher as the basis for considering the inter se seniority and also for the purposes of considering the incumbents in the feeder cadre for promotion to the next higher post.

It also agreed with the observations of the coordinate bench and dismissed the present matter noting that it finds no merit in the contentions of the petitioner.

Petitioner was represented by advocate I.H. Saikia and respondent was represented by advocates P. Chakraborty, P. Sharma and P. Bora

Case Title: Smti. Protiva Devi v State of Assam & Ors.

Citation: 2022 LiveLaw (Gau) 33

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