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Judgment
1.Heard Mrs. S Roy, learned counsel for the petitioners. Also heard Mr. N Sarma, learned Standing counsel, Secondary Education Department in the
Govt. of Assam.
The petitioners are all serving as LDAs in different High Schools in the Hailakandi district and claims that they are eligible for promotion to the post
of Senior Assistant/UDA as per the Circular issued by the Govt. of Assam from time to time. The petitioner No.1 was initially appointed as a Grade
IV in the Matigaon High School on 01.01.1994 and on being promoted on 06.08.2008 is presently working as LDA in the Premlochan High School,
Hailakandi. The petitioner No.2 worked as LDA in the Janakicharan High School, Hailakandi from 23.11.1994 and thereafter from 30.12.2003 is
serving in the same post in the AC Girls High School. The petitioner No.3 was initially appointed as a Grade IV in Matijuri High School on 06.12.1978,
and, thereafter promoted as an LDA in the same school on 30.01.1996. The petitioner No.4 is serving as LDA in Lakshirbond High Madrassa from
04.10.2005, whereas the petitioner No.5 is serving as LDA in the Saneri Mitai High School, Hailakandi from 28.03.2003.
The concerned Schools where the petitioners are serving were later on upgraded by introducing the High Secondary sections. Initially, the Higher
Secondary sections were in the venture stage, whereas the High School was provincialised, but, later on, in the year 2013, the Higher Secondary
sections were also provincialised under the Assam Venture Educational Institution (Provincialisation of Services) Act, 2011 (for short, the Act of
2011). Upon the Higher Secondary sections being provincialised in the respective schools, certain Sectional Assistants who were otherwise equivalent
to UDA were also provincialised.
As some other incumbents, who were earlier working in the Higher Secondary section would be provincialised whereupon they will be serving as
Senior Assistants, it is the apprehension of the petitioners that their scope of being promoted as UDA has been foreclosed. According to the
petitioners, it is their apprehension that as the concerned post of Senior Assistant/UDA has in the meantime stood occupied, therefore, there would not
be any further consideration for promotion of the petitioners. In the aforesaid background this writ petition has been preferred for a direction to the
respondent authorities not to give effect to the eligibility list of the Senior Assistants in the Higher Secondary section as the same would result in
depriving the petitioners of their entitlement to be considered for promotion to the post of UDA.
In the circumstances, the petitioners claim for promotion to the post of UDA under Rule 5 of the Assam Secondary Education (Provincialised)
Service Rules, 2003 (for short, Rules of 2003).
Now the issue before this Court would be whether the promotional avenues of the petitioners would be adversely affected, inasmuch as, the
incumbents working in the Higher Secondary Section in the venture stage would in the meantime be provincialised. Before examining the question, in
detail, it would be apposite to take note of that the service condition of the petitioners in the High School Section of the school where they were
serving are governed by the Rules of 2003. Schedule-III-(B) Non-Teaching of the Rules of 2003 provides for three different cadres in the Non-
Teaching staff, namely, (i) UDA, (ii) LDA (iii) Laboratory Bearer/Grade IV. The High School section of the school, where the petitioners had served
being a provincialised school would, therefore, have three different cadres of non-teaching staff i.e., the UDA, LDA, Laboratory Bearer/Grade IV.
Accordingly, as per the Rules of 2003 the post of UDA is to be filled up by promotion by following the procedure prescribed in Rule 6 of the Rules of
2003. So, ordinarily had the High School of the petitioners remained as such, the petitioners would have had the promotional avenues and an
opportunity of being considered for promotion as UDA under Rule 5 and 6 of the Rules of 2003 would have arisen.
But, when the Higher Secondary section of the concerned schools were to be provincialised, such provincialisation would admittedly have to be
made under the provisions of the said Act of 2011. The Schedule to the Act of 2011 also provides for one post of Senior Assistant. Therefore, the
incumbents, who were holding the post of Senior Assistant in the pre-provincialised Higher Secondary section of the School, would have to be
provincialised against the said post provided under the Schedule. Looking from the perspective of the Rules of 2003 and the Act of 2011, after the
Higher Secondary Section is being provincialised there would still remain the posts of Laboratory Bearer/Grade IV, LDA and UDA amongst the non-
teaching staff, and, one further post of Senior Assistant as provided in the Schedule to the Act of 2011. In such view of the matter, this Court do not
find any substance in the apprehension expressed by the petitioners that upon the post of Senior Assistant being provincialised under the Act of 2011
in respect of the Higher Secondary sections, the scope of promotion of the petitioners as UDA would be adversely affected in any manner. The post
of UDA i.e., as provided in the Schedule III- (B) Non-Teaching under the Rules of 2003 would remain in place, unless the same is abolished through
any appropriate order by the authorities after the Higher Secondary sections have been provincialised. No material has been produced by the
respondent authorities that on facts the post of UDA as provided in Schedule III- (B) Non-Teaching of the Rules of 2003 has been abolished by the
authorities, in the meantime.
Accordingly, this Court is of the view that the claim for promotion of the petitioners to the post of UDA under the provisions of Rule 5 and 6 read
with Schedule III- (B) Non-Teaching of the Rules of 2003 will remain in place and the same cannot stand obliterated as because one Senior Assistant
who was working in the venture stage of the Higher Secondary Section had in the meantime been provincialised under the Act of 2011.
On the other hand, if for any other reason the post of UDA in the High School section as it existed under the provisions of the Rules of 2003, is not
available for the purpose of promotion from the LDA, in the view of this Court, the petitioners herein would be entitled to the benefit of the ACP
scheme inasmuch as, inspite of being eligible the petitioners have either not been promoted or there is no scope of them being promoted.
In the aforesaid circumstances, this writ petition is disposed of by directing the Director of Secondary Education Assam to examine the individual
claim of the 5(five) writ petitioners and arrive at a decision as to whether they can be promoted to the post of UDA as provided in Schedule III- (B)
Non- Teaching of the Rules of 2003. In doing so, the Director shall first examine whether the posts as provided in the Rules of 2003 are still available.
In the event, it is found that the post are available, the Director shall consider the individual cases of the petitioners in terms of their own merit as per
Rule 5 and 6 of the Rules of 2003.
In the event, the Director of Secondary Education Assam arrives at a conclusion that for any reason whatsoever, the concerned posts are not
available because of the intervening circumstances, the Director shall consider and pass necessary order granting the petitioners the entitlement, as
they may otherwise be entitled, under the ACP scheme.
The aforesaid exercise be done by the Director of Secondary Education Assam within a period of 4(four) months from the date of receipt of a
certified copy of this order.
It is clarified that if the Director arrives at a conclusion that the petitioners are required to be given the benefit of ACP scheme, it shall also be
kept in mind that under the ACP scheme any employee who has worked for 10(ten) years would be entitled for the first ACP scheme benefit and on
completion of 24 years of service, the employee shall be entitled for the second ACP scheme benefit.
In terms of the above, this writ petition stands disposed of.