Rule of law must prevail: High Court
Dimapur, April 9: The Gauhati High Court, Kohima Bench has disposed a bunch of writ appeals filed by attached teachers of Directorate of School Education, SDEOs and DEOs against their detachment and redeployment. The writ appeal was filed challenging the common order dated 18-09-2019 passed by a Single Judge in Writ Petition (C) 251 (K) of 2017.
The writ petition was filed challenging the redeployment order of the State Government dated 31-10-2017 directing the School Education Department to detach all teachers attached to SDEO, DEO, Directorate and VIPs through rationalization and re-deployment. The teachers attached to Ministers, Advisors and Parliamentary Secretaries may also be detached and re-deployed, the October 2017 order said.
The appellants were all initially appointed as teachers and some were attached to SDEO office in the districts and others attached to the Directorate of School Education, Kohima. While serving as attached employees they were given option to either stay attached to SDEO office and DoSE by converting their posts of teachers to ministerial post or to go back to their respective schools. The attached employees had opted for conversion of their posts to ministerial post and for attachment of their post.
Hearing the writ petition, the Single Judge had dismissed the WP holding that the petitioners belongs to a definite cadre of teachers and as such, bringing teachers to a non-educational institution is illegal and in violation of the provision of the Right to Education Act, 2009. It was also held that the only way to get oneself employed as a ministerial staff in the Education Department is through 2006 Rules and therefore, the attachment of the petitioners and conversion of their post to ministerial post is in violation of the said Rules.
The Nagaland Directorate Ministerial Service Rules, 2006 under Rule 7 (i) provides for filling up the post of Lower Division-cum-Computer Assistant by 100% direct recruitment through a selection to be made by a selection committee.
“There was no legal basis of bringing the petitioners as ministerial staff in the Directorate of School Education, SDEO, DEO and it would remain illegal and unauthorized,” said the judgment & order passed by the Single Judge.
Dismissing the WP, the Single Judge stated that the recruitment rules has been violated and cannot stand the test of law. The writ appeals were filed challenging this decision of the Single Judge.
After hearing the writ appeals, Justice Songkhupchung Serto and Justice S. Hukato Swu ruled that the establishment of fact by the State respondents that the Directorate Ministerial Service Rules, 2006 under Rule 7 (i) provides for 100% recruitment through direct recruitment or through selection made by a Selection Committee was not disputed by the writ petitioners. “Rule of law must prevail,” they said in a judgment & order (Cav) passed on April 8,
The 2-bench Judge stated that writ petitions are filed to protect the rights of the petitioners, however, in the present writ, the petitioners have pleaded that they are willing to sacrifice their seniority and the concomitant promotions as well as their entitlement to higher pay.
“Corollary of which is that it is the prayer of the petitioners that they should be disprivileged; meaning thereby they should be punished by allowing them to continue in the position as ministerial staff with lower pay by sacrificing seniority and also promotion. We do not think there is anything in the service jurisprudence that gives right of a writ petitioners to be demoted. It is a plea for a negative right which we cannot comprehend under the service jurisprudence unless we are desirous of carving out a new concept of law. We are therefore of the view that negative right cannot be brought before a writ court,” said the judgment order.
Stating that the law of equity demands that the petitioners should be treated in a fair and equitable manner, the judgment order said the petitioners should be restored to their rights which they have lost in the misadventure, which was caused due to the negligence of the State respondents. The order directed the State respondents to restore all the consequential rights of the petitioners (attached teachers) which they have lost with effect from the date of attachment till the date of redeployment.
“It is clarified that the less pay drawn by the petitioners/seniority/promotion shall be restored retrospectively w.e.f. such date each petitioner was attached. The exercise being enormous in nature, we deem it proper to give sufficient time for examining all the records of the petitioners as such, we direct the State respondents to make endeavour to complete the exercise within six months of the passing of this order. The State respondents shall ensure that the petitioners are not repatriated till such time the restoration exercise is finalized as against each petitioner,” the judgment order directed.
Senior counsel CT Jamir assisted by I. Imchen appeared for all the appellants in all the connected writ appeals, while TB Jamir, Senior Additional Advocate General, Nagaland assisted by V. Suokhrie appeared for the State respondents in all connected writ appeals. (Page News Service)