Dayananda Bhuyan vs The State Of Assam And 2 Ors

Robin Phukan, J

Heard Mr. B. Purkayastha, learned counsel for the petitioner and also heard Mr. U. Sarma, learned standing counsel, Secondary Education Department, appearing for the respondent Nos.1—3.

In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the circular dated 02.02.2023 (Annexure-13), issued by the Director of Secondary Education, Assam, so far it relates to column Nos.12 and 16 and further to set aside and quash the letter dated 08.01.2024, issued by the Director of Secondary Education, Assam, by holding the same as illegal, null and void and also to issue direction to the respondent authorities to initiate the regular process of promotion to the post of Principal in respect of Government Higher Secondary Schools in the State of Assam, excluding the impugned condition of requirement of submission of written NOC as per gradation list.

Mr. Purkayastha, learned counsel for the petitioner submits that the petitioner has been working as In-Charge Principal, Dispur Government Higher Secondary School and he possessed all the requisite qualifications including B.Ed. and M.A. Degrees, with 17 years of teaching experience for being appointed as regular Principal of the Higher Secondary School, as per Rule 12 of the Assam Secondary Education (Government Schools) Service Rules, 2020. Mr. Purkayastha further submits that while the petitioner was serving as In-Charge Principal, he has received one letter dated 08.01.2024 (Annexure-6, at page 59 of the petition), written by the Director of Secondary Education, Assam, directing him to submit the NOC issued by the competent authority before pursuing his B.Ed. and post-graduate degree within a period of 3 days from the date of issue of the letter.

3.1 Mr. Purkayastha submits that the petitioner had obtained his B.Ed. and post-graduate degrees while he was in service by obtaining permission from the respondent authorities. He further submits that Rule 13 of the Assam Civil Service (Conduct) Rules, 1965, provides that 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 and that the respondent authorities by its various notification and office memorandum encouraged the teachers to obtain B.Ed. and post-graduate degree by distance mode. Mr. Purkayastha also submits that the letter dated 08.01.2024 was issued by the respondent authorities, in view of the circular dated 02.02.2023, where in column No.12 provides that if educational qualification acquired in service period, please state whether NOC from the appointing authority was obtained by the teacher or not. If yes, please enclose the copy. The column No.16 provides that (1) Whether B.Ed. Parangat acquired while in service period (Yes/No), (2) Whether on deputation or not. If yes, please furnish copy of deputation order, and (3) If not, on deputation, copy of NOC from the appointing authority must be enclosed and because of these two conditions the degree obtained by the petitioner would become invalidated and accordingly, Mr. Purkayastha contended to interfere with the aforesaid two conditions and also to set aside the impugned communication dated 08.01.2024, issued by the Director of Secondary Education, Assam, to him.

3.2 Mr. Purkayastha also referred to a decision of a Coordinate Bench of this Court in WP(C) No.4125/2023 [Md. Samsul Hoque v. The State of Assam & Ors., decided on 19.12.2023.], where the aforementioned clauses have been interfered with by holding that absence of No Objection Certificate shall not be detriment in considering the case of the petitioner for holding the charge of the post of Principal of Higher Secondary School and similar benefit may be granted to the present petitioner also.

On the other hand, Mr. U. Sarma, learned standing counsel for the Secondary Education Department, submits that in view of Rule 13 of the 1965 Rules, a serving Government servant has to obtain No Objection Certificate from the concerned authority for pursuing any course or to appear in examination and the circular dated 02.02.2023 was issued incorporating two clauses 12 and 16, which require to be furnished for consideration of the candidature for the post of Principal of Government Higher Secondary Schools and as such, there is no infirmity or illegality in the impugned notification and therefore, it is contended to dismiss the petition.

Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned communication dated 08.01.2024 and also the impugned notification dated 02.02.2023 and also gone through the order of a Coordinate Bench of this Court dated 19.12.2023 in WP(C) No.4125/2023.

The basic facts here in this case are not disputed. The petitioner is serving as In-Charge Principal of Dispur Government Higher Secondary School and he possessed all the requisite qualifications for being appointed as the regular Principal of the Government Higher Secondary School. He obtained his B.Ed. degree and post-graduate degree, while he was in service and he was permitted vide Annexure-2D, by the Principal, Dispur Government H.S. School to take admission in B.Ed. course and thereafter, he has completed his B.Ed. course and he has also been granted one increment for obtaining the B.Ed. degree and he also obtained post-graduate degree and the aforementioned degrees obtained by him are from a university duly recognized by University Grants Commission (UGC) and National Council for Teacher Education (NCTE) and there is no dispute about the validity of the aforementioned degrees obtained by the petitioner.

Moreover, another aspect of the matter which also should not lost sight of while deciding the present dispute. 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:-

“51A: 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 endeavor and achievement.”

7.1 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, reported in (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”.

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Rabindra Nath Tagore's vision of a free India cannot be complete unless “knowledge is free” and “tireless striving stretches its arms 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.

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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. 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.”

7.2 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.

Since the present petitioner has obtained the B.Ed. degree from an institution recognized by UGC and also by National Council for Teacher Education (NCTE) with permission for appearing in examination, and as such, the same has to be treated as valid degree and the petitioner is fully qualified for being appointed as regular Principal of the Government Higher Secondary School, notwithstanding absence of NOC (though permission was obtained) and since clauses 12 and 16 stand an embargo in selection of the petitioner to the post of Principal, the same are interfered with being the Rule 13 cannot stand in the way of giving effect of the constitutional provision i.e. Article 51A(j) of the Constitution of India and also in view of the decision of a Coordinate Bench of this Court in WP(C) No.4125/2023.

Accordingly, the impugned letter dated 08.01.2024, issued by the Director of Secondary Education, Assam, to the petitioner, stands set aside and quashed and also the clauses 12 and 16 of the impugned notification dated 02.02.2023, stand interfered with and absence of No Objection Certificate of the petitioner in pursuing his B.Ed. and post-graduate degrees shall not stand in the way of him being selected to the post of regular Principal and his case shall be considered for being appointed as regular Principal on the basis of merit and not on the basis of absence of No Objection Certificate.

In terms of above, the writ petition stands disposed of.