IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WRIT PETITION (C) NO.6685/2014 Petitioners: 1. All Assam Middle English Teacher s Association (ME School), represented by the President, Sri Krishna Kanta Talukdar, S/o late Bhagiram Talukdar, Japorigog, PO- Dispur, PS- Dispur, District- Kamrup (Metro), Assam. 2. Sri Kandarpa Deka, Son of late Tarini Charan Deka, Secretary of All Assam Middle English Teacher s Association, Village- Batagaon, PO- Naoketa, PIN Mr. R.C. Saikia, Mr. P. Khalaniar, Miss. K. Saikia. Respondents : 1. State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Elementary Education Department, Dispur, Guwahati (a). Additional Chief Secretary to the Government of Assam, Elementary Education Department, Dispur, Guwahati-6. 1(b). Secretary to the Government of Assam, Elementary and Secondary Education Department, Dispur, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati-19. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 1 of 31

2 4. Deputy Secretary to the Government of Assam, Education Department, Dispur, Guwahati- 6, Assam. 5. The Inspector of Schools (NDC), Nagaon, District- Nagaon, Assam. 6. Shri Arup Kumar Sarma, S/o late Madan Ch. Sarma, Headmaster, Joypur ME School, Joypur, Resident of Naharkatia Amolapatty, PO & PS- Naharkatia, District- Dibrugarh. 7. Smt. Mira Sonari, W/o Shri Raju Khataniar, Headmistress, Rashtria Hindi Vidyalaya (ME), Chabua, R/o MES Tiliali, PO & S- Chubua, District- Dibrugarh. 8. Shri Raj Kumar Chetri, S/o Sri Bhakta Bahadur Chetri, Headmaster, Madhupur ME School, Dibrugarh, R/o Natun Nirmali Gaon, PS & District- Dibrugarh. 9. Shri Chiranjit Kakoti, S/o late Nagen Kakoti, Headmaster, Jokai ME School, Dibrugarh, R/o Rupali Dutta Path, Central Chowkidingi, PS & District- Dibrugarh. 10. Shri Amulya Borah, S/o late Khargadhar Borah, Headmaster, Kalakhowa ME School, Dibrugarh, R/o Kumaranichiga Duwarah Chuk, PO- Rajabheta, District- Diburgarh. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 2 of 31

3 11. Smt. Minoti Deori, D/o late Madan Ch. Deori, Headmistress of Tengakhat Public ME School, R/o Hatibandha, PS- Tengabhat, District- Dibrugarh. Mr. D. Saikia, Addl. Advocate General, Assam, Mr. N. Sarma, SC, Education Department, Mr. J.C. Gogoi, Mr. S.M. Abdullah P. WRIT PETITION (C) NO.6194/2016 Petitioners: 1. All Assam Middle English Teacher s Association (ME School), represented by the President, Sri Kandarpa Deka, Son of late Tarini Deka, Village- Betna, PO- Naoketa, PIN , District- 2. Sri Dwipen Sarma, Son of late Bhubaneswar Sarma, Pradhan Sampadak, All Assam ME Schools Teachers Association, Resident of Ganeshpara, PO- Dhirenpara, House No.4, PS- Fatasil Ambari, Guwahati. Mr. R.C. Saikia, Mr. P. Khataniar. Respondents : 1. State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary, Government of Assam, Secondary Education Department, Dispur, Guwahati-6. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 3 of 31

4 3. Director of Secondary Education, Kahilipara, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Deputy Secretary to the Government of Assam, Education Department, Dispur, Guwahati , Assam. 6. Additional Chief Secretary to the Government of Assam, Elementary Education Department, Dispur, Guwahati Secretary to the Government of Assam, Elementary and Secondary Department, Dispur, Guwahati Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, S.C., Education Department. WRIT PETITION (C) NO.6930/2016 Petitioner: School Managing Committee (SMC), Barabhita LP School, Represented its President, Shri Kuddus Ali Mondal, S/o Jahanuddin Mondal, Resident of village- Ujanpetla Part-I, PS- Tamarhat, District- Dhubri, Assam, PIN Mr. P.K. Deka, Mr. I.H. Laskar, Mr. S. Alam, Mr. M.S. Alam, Mr. J.H. Laskar. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 4 of 31

5 Respondents : 1. State of Assam, Represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Assam, Mr. A. Deka, SC, Education Department. WRIT PETITION (C) NO.6934/2016 Petitioner: School Managing Committee (SMC), Ujanpetla Keramatiya ME Madrassa, represented by its President, Shri Moynal Hoque, S/o late Foyaz Dewani, Resident of village- Ujanpetla Part-II, PO- Ujanpetla, PS- Tamarhat, District- Dhubri, Assam, Pin Mr. P.K. Deka, Mr. I.H. Laskar, Mr. S. Alam, Mr. MS Alam, Mr. J.H. Laskar. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 5 of 31

6 Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Mr. N. Sarma, SC, Education Department. Petitioner: WRIT PETITION (C) NO.6935/2016 School Managing Committee (SMC), No.784, Bishukura Pollimangal LP School, represented by its President, Shri Susanta Chandra Roy, S/o late Sarat Chandra Roy, Resident of Village- Ujanpetla Part-I, Po- Ujanpetla, PS- Tamarhat, District- Dhubri, Assam, Pin Mr. P.K. Deka, Mr I.H. Laskar, Mr. S. Alom. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 6 of 31

7 Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Mr. A. Deka, SC, Education Department. WRIT PETITION (C) NO.6946/2016 Petitioner: School Managing Committee (SMC), No.2218, Darul Ulum LP School, represented by its President, Md. Joynal Abedin, S/o late Omar Ali Bhuiyan, Resident of Village- Madhyapetla, PS- Tamarhat, District- Dhubri, Assam, Pin Mr. P.K. Deka, Mr I.H. Laskar, Mr. S. Alom. Mr. M.S. Alam, Mr. J.H. Laskar. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 7 of 31

8 Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Mr. A. Deka, SC, Education Department. WRIT PETITION (C) NO.6949/2016 Petitioner: School Managing Committee (SMC), No.1989, Ujanpetla Holiram LP School, represented by its President, Shri Nilkamal Chandra Sarkar, S/o Sasthi Sarkar, Resident of Village- Ujanpetla Part-II, PO- Ujanpetla, PS- Tamarhat, District- Dhubri, Assam, Pin Mr. P.K. Deka, Mr I.H. Laskar, Mr. S. Alom. Mr. M.S. Alam, Mr. J.H. Laskar. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 8 of 31

9 Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Mr. A. Deka, SC, Education Department. Petitioner: School Managing Committee (SMC), Tamarhat ME School, represented by its President, Shri Bipul Kumar Roy, S/o late Srikanta Roy, Resident of Village- Natabari Part-I, PS- Tamarhat, District- Dhubri, Assam, Pin WRIT PETITION (C) NO.6981/2016 Mr. P.K. Deka, Mr I.H. Laskar, Mr. S. Alom. Mr. M.S. Alam, Mr. J.H. Laskar. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 9 of 31

10 Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati District Elementary Education Officer (DEEO), Dhubri, Assam. Mr. D. Saikia, Addl. Advocate General, Mr. N. Sarma, SC, Education Department. WRIT PETITION (C) NO.7513/2016 Petitioner: School Managing Committee (SMC), J.N. Girls Institution ME School, Rupshi, represented by its President, Nural Hoque, S/o late Piyar Ali, Village- Rupshi Part-II, PO- Rupshi, PS- Kajigaon, District- Kokrajhar, Assam, Pin Mr. R. Islam, Mr. M. Hassan. Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati-6. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 10 of 31

11 2. Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Principal Secretary, BTAD, Kokrajhar, Assam, Pin Secretary, Education Department, BTC, Kokrajhar, Assam, Pin Director of Education Department, BTC, Kokrajhar, Assam, Pin Inspector of School, Kokrajhar District Circle, Kokrajhar, Assam. 9. District Elementary Education Officer, Kokrajhar, District- Kokrajhar, BTAD, Assam, Pin Mr. S.K. Ghosh, SC, Secondary Education, Mr. G. Sarma, SC, Elementary Education, Ms. K.M. Talukdar, SC, BTC. WRIT PETITION (C) NO.7524/2016 Petitioner: School Managing Committee (SMC), Sahebganj ME School, represented by its President, Abul Kalam, S/o late Afizuddin Sk., Village- Sahebganj Naiserkuti, PO- Sahebganj, PS- Gauripur, District- Dhubri, Assam, Pin WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 11 of 31

12 Mr. R. Islam, Mr. M. Hussain. Respondents : 1. State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Education Department, Dispur, Guwahati Principal Secretary to the Government of Assam, Secondary Education Department, Dispur, Guwahati Director of Secondary Education, Assam, Kahilipara, Guwahati Director of Elementary Education, Assam, Kahilipara, Guwahati Inspector of Schools, Dhubri District Circle, Dhubri, Assam, Pin District Elementary Education Officer, Dhubri, Assam, Pin Mr. S.K. Ghosh, SC, Secondary Education, Mr. G. Sarma, SC, Elementary Education. B E F O R E HON BLE MR. JUSTICE UJJAL BHUYAN Dates of hearing : , , , & Date of Judgment : WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 12 of 31

13 J U D G M E N T & O R D E R This ten petitions have been filed under Article 226 of the Constitution of India challenging the legality and validity of the decision of the State Government in the Education Department for amalgamation of different categories of schools located in the same campus and merger of similarly situated schools in nearby areas. 2. Since the subject matter of all the writ petitions are inter-related, those were heard together and are being disposed of by this common order. 3. Heard Mr. R C Saikia, Mr. P K Deka and Mr. R Islam, learned Counsel for the petitioners and Mr. D Saikia, learned Senior Additional Advocate General, Assam assisted by Mr. A Deka and Mr. N. Sarma, learned Standing Counsel, Education Department for the respondents. 4. A brief narration of facts and events would be in order to place the lis involved in the present litigation in the correct perspective for its proper adjudication. 5. An office memorandum (OM) dated was issued by the State Government in the Education Department instructing all Inspectors of Schools to finalize amalgamation proposals of ME Schools with High Schools situated within the same campus. This came to be challenged before this Court in WP (C) No.677/2005 (Krishna Kanta Talukdar Vs- State of Assam). The said writ petition was disposed of on on submission of State Counsel that such decision was not imposed from the top but based on consensus between the two schools. Therefore, this Court directed that the scheme of amalgamation should be confined to consenting schools only and not forced upon unwilling schools. 6. Thereafter, Government of Assam in the Elementary Education Department issued OM dated providing for amalgamation of schools. WP (C) No.6685/2014 came to be filed by All Assam Middle English Teachers Association (ME School) and its secretary challenging the legality and validity of the aforesaid OM dated An interim WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 13 of 31

14 order was passed on to the effect that there should be no further amalgamation of schools. 7. Almost two years thereafter, OM dated was passed by the Principal Secretary to the Government of Assam, Secondary Education Department providing for a scheme called Siksha Khetra for amalgamation and merger of different categories of schools located within the same campus or in nearby areas. This came to be challenged in WP (C) No.6194/2016 by the petitioners of WP (C) No.6685/2014 wherein notice was issued by this Court on with a limited stay to the effect that OM dated should not be enforced on unwilling schools. 8. Following the same, WP (C) Nos. 6930, 6934, 6935, 6946, 6949, 6981, 7513 and 7524 of 2016 came to be filed. 9. Before adverting to the pleadings and the rival submissions, it would be apposite to briefly refer to the legal provisions and the key features of the two OMs dated and , respectively. 10. Article 21 A was inserted in the Constitution of India by the Constitution (Eighty sixth Amendment) Act, 2002 w.e.f By the said Article, right to education was expressly declared a fundamental right. It says that State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine. 11. Consequently, the Right of Children to Free and Compulsory Education Act, 2009 (briefly the 2009 Act hereinafter) was enacted as envisaged in Article 21 A of the Constitution to provide for free and compulsory education to all children of the age of 6 to 14 years. The substance of the 2009 Act is that every child in the age group of 6 to 14 years shall have the right to free and compulsory education in a neighbourhood school till completion of elementary education. The 2009 Act lays down norms and standards for schools to be established or recognized and also provides for qualification for appointment and terms and conditions of service of teachers. The 2009 Act also requires the WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 14 of 31

15 appropriate Government and the local authorities to ensure that the pupil- teacher ratio as specified in the schedule is maintained in each school. The schedule appended to the 2009 Act mentions the norms and standards for a school including maintenance of pupilteacher ratio. For 1 st class to 5 th class, against admitted children upto 60, number of teachers should be 2 ; between 61 to 90, 3; between 91 to 120, 4; between 121 to 200, 5; above 150 children, 5 plus 1 head teacher; above 200 children, pupil- teacher ratio (excluding head teacher) shall not exceed 40. For 6 th class to 8 th class, atleast one teacher per class so that there shall be minimum one teacher each for Science and Mathematics, Social Studies and Languages; atleast one teacher for every 35 children; where admission of children is above 100, a full time head teacher and part time instructors, for Art Education, Health and Physical Education and Work Education. Besides the above, the schedule also mentions about minimum number of working hours per week per teacher and also about infrastructure requirement. 12. Following enactment of the 2009 Act, Central Government has framed the Right of Children to Free and Compulsory Education Rules, Likewise, State of Assam has framed the Assam Right of Children to Free and Compulsory Education Rules, Key Features of the two OMs may now be adverted to. OM dated By way of this OM, the Govt. sought to amalgamate different types of schools i.e., Govt. schools, provincialized schools etc. to facilitate improvement in the quality of education and stabilize the transition process from Lower Primary (LP) to upward education. Having regard to the 2009 Act, it was noticed that there were a large number of single teacher schools in the State of Assam which was not inconformity with the provisions of the said Act. That apart, there were also schools where pupil-teacher ratio, as laid down in the 2009 Act, was not maintained. Therefore, to provide access to education to all children and to provide adequate number of teachers to ensure quality education by way of rationalization, the said OM was issued. For implementation of the provisions contained in the OM; a state level Committee was constituted at the state level WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 15 of 31

16 and District Level Committees at the district level whose primary function was to suggest to the State Level Committee amalgamation of schools, shifting of schools, conversion of single teacher schools to minimum double teachers schools etc. It was mentioned that all Government LP Schools, all provincialised LP Schools, all Junior Basic Schools, all Middle English Schools, all Senior Basic Schools, all Middle Vernacular Schools, all High Schools and all composite schools were covered by the amalgamation scheme as per OM dated Besides the above, all Assistant Teachers of LP Schools, all Assistant Teachers of Upper Primary (UP) Schools, all Head Teachers of UP level schools, all Subjects Specific Teachers of High Schools and all Head Teachers of High Schools were covered under the rationalization scheme in terms of said OM dated It was made incumbent upon the District Level Committees to suggest amalgamation of two LP Schools if the distance between the two schools was less than ½ kilometre. It was mentioned that a LP School must be within a distance of one kilometre from human habitation having minimum enrolment of 30 in case of general area and 20 in case of special area. But post amalgamation, the strength of students should not be more than 150 for rural area and 100 for urban area. Govt. may also shift a LP School to another area instead of amalgamation, if such a school has enrolment of less than 5. Likewise, provision was made for amalgamation of LP School with ME School in which case, the strength of students should not be more than 200 for rural area and 124 for urban area In case of UP level schools, if the distance between two such schools with or without requisite enrolment was less than half kilometre, the schools should not be amalgamated. A ME level school should be situated within a distance of 3 kilometre from the nearby habitation and minimum enrolment should be 45 irrespective of whether such a school was situated in general area or in special area. However, post amalgamation of two ME schools, maximum number of students should not be more than 500 for rural area and not more than 120 for urban area In the event of amalgamation, all Assistant Teachers of the amalgamated schools would continue to receive the same facility as before. Those who were graduates besides possessing the requisite qualification would be granted facilities of graduate level teachers WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 16 of 31

17 in the event of merger with High School or composite school. In the event of merger of UP level schools, such as, ME Schools, all full time Head Teachers would become Assistant Headmaster in the event of merger with High School or composite school. In this way, it would be ensured that all habitats in a district would have access to elementary education as per mandate of the 2009 Act There would be amalgamation between two Government schools, but not between a Government school and a provincialised school. Similarly, a teacher in Government school would not be shifted to a provincialised school Besides the above, the OM laid down detailed strategy for amalgamation/closing down/shifting of schools and shifting of teachers with posts to other schools. It was clarified that it would be incumbent upon the District Level Committees to convert all single teacher schools into more than double teacher schools by way of re-deployment of teachers from other schools within the same district. While carrying out the exercise of amalgamation of schools and rationalisation of teachers, the District Level Committees would ensure that each and every school of the district maintained the prescribed people teacher ratio as per mandate of the 2009 Act Finally, it was stated that regarding amalgamation of schools, rationalization of teachers and conversion of single teacher schools to minimum double teachers schools, the financial ground work would have to be done by the District Level Committees, which shall thereafter send their suggestions to the State Level Committee. 15. As already mentioned, legality and validity of the aforesaid OM dated is under challenge in WP(C) No.6685/2014. OM Dated As per this OM, Govt. of Assam in the Secondary Education Department has prepared a scheme called, Siksha Mitra for amalgamation and merger of different categories of schools located within the same campus or in nearby areas. It has been mentioned that there are many campuses where different categories of schools, such as, WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 17 of 31

18 Higher Secondary School, High School, ME School and even LP School exists being administered separately. It has also been noted that services of teachers of one school are not shared in the other school within the same campus even in case of need. Resultantly, shortage of teachers in one school is not addressed by the teachers of the other schools though functioning from the same campus. The OM states that services of teachers, particularly, in higher institutions, such as, Junior Colleges are not fully utilized which required expansion of Junior Colleges to include Classes IX and X for more effective utilization of human resources. It has, therefore, been decided that to derive optimum services of the teachers and to provide better infrastructural support, schools situated in same campus or in any nearby area shall be amalgamated/merged into one single administrative and academic unit under the scheme of Siksha Mitra. As many as 13 criteria have been mentioned to be taken into consideration while carrying out such amalgamation/merger In such an eventuality, the post of Headmaster of High School would be redesignated as Vice Principal of the Junior College and the incumbent Headmaster would be allowed to be the Vice Principal even if he did not posses requisite qualification All schools situated in the same campus shall be merged with the highest school; if there is a Higher Secondary School in the same campus, then all the other schools within the campus, such as, High School or ME School or LP School would be amalgamated with the Higher Secondary School. Likewise, if the highest school is the High School, then all the other schools shall be amalgamated with the High School. This would also be the case if the higher school is ME School. Following such amalgamation, the School Managing Committee or the School Management and Development Committee shall be re-constituted with representatives from all the schools On amalgamation, Assistant Teachers and other staff of the subordinate schools shall be the employees of the highest school where other schools are amalgamated and the name of the highest school would be maintained following amalgamation. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 18 of 31

19 16.4. Following amalgamation, the staff pattern shall be maintained as per the existing norms and in case of excess teaching and non-teaching staff, they would be posted elsewhere against vacant posts with their seniority intact and without any financial loss Movable and immovable property of the amalgamating schools shall be vested with the highest school following amalgamation In case of amalgamation of LP School with ME School, the Assistant Teachers of the LP School shall be the employees of the amalgamated ME School and Headmaster of the ME School shall be the Headmaster of the amalgamated school with staffing pattern as per existing norms of the ME School. Excess employees shall be posted elsewhere against vacant posts with their seniority and financial position intact. Head Teacher of the LP School would continue to draw charge allowance till his superannuation or his posting elsewhere Similar would be the position in the event of amalgamation of a High School with Junior College In the event, the highest school is High School, Headmaster of the High School would continue as the Headmaster post amalgamation. Post of Headmaster of ME School would be re-designated as Assistant Headmaster with same pay scale even if existing Headmaster of the ME School did not have the qualification for the post of Assistant Headmaster. However, after retirement or even in the event of the post falling vacant, it shall be filled up from amongst candidates having regard to the requisite qualification as per recruitment norms If two or more High Schools are located within a radius of 2 kilometre than these High Schools may be merged provided number of students do not exceed 40 in each class If an ME School has poor enrolment i.e., less than 50 students in each class, then the ME School may be merged with the nearby High School. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 19 of 31

20 If there are two or more ME Schools within a radius of 1 kilometre, then these ME Schools may be merged provided number of students do not exceed 40 in each class If there are two or more LP Schools located within a radius of ½ kilometre then these LP Schools may be merged provided number of students do not exceed 100 in each school Similar criteria would be applicable in case of ME Madrassa, High Madrassa and Higher Secondary Madrassa An interesting facet of the scheme is that after amalgamation, teachers of existing LP Schools would teach in Classes-I to V, teachers of existing ME Schools in Clases-1 to VIII, teachers of existing High Schools in Classes-VI to X and teachers of existing Higher Secondary Schools/Junior Colleges from Classes-VI to XII In addition to the above, a number of conditions were mentioned in case of merger. The school having better infrastructure and better academic performance would be the base school and the other schools would be merged with that school. The senior most Headmaster shall be the Headmaster of the combined school post merger. However, the other Headmaster shall be ex-officio Headmaster with the post made personal to him retaining the same pay and status till he holds the said post. In the event of such merger, the name of the base school would be the name of the combined school post merger. Assistant Teachers and other staff of the schools shall become employees of the base school with the excess teaching and non-teaching staff to be posted elsewhere with their seniority intact. The movable and immovable property of the school shall be vested with the base school after merger For effective implementation of the scheme, there shall be Block Level Committees and District Level Committees to identify the schools eligible for amalgamation and merger. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 20 of 31

21 The initial ground work has to be done by the Block Level Committee which shall thereafter forward the list of the schools to be considered for amalgamation or merger to the District Level Committee for examination which shall thereafter furnish its recommendation to the Director of Secondary Education, Assam or to the Director of Elementary Education, Assam, as the case may be. On receipt of such proposal, the concerned Director shall forward the same to the Government for approval. Government shall consult the Finance Department whereafter necessary approval may be issued. Once approval is received, the concerned Director shall issue necessary order for amalgamation or merger. In the event of any grievance or any dispute arising out of such amalgamation or merger, appeal would lie to the Government in the Secondary Education Department or in the Elementary Education Department, as the case may be. 17. From a comparative analysis of the two OMs dated and , it is seen that the latter appears to be an improved version providing for a detailed scheme for amalgamation and merger of schools. Though in the OM dated , nothing has been stated as to what would happen to the previous OM dated , it can safely be inferred that after notifying the Siksha Mitra scheme as per OM dated , the earlier OM dated , perhaps, would no longer be applicable and has ceded space to the latter OM dated Therefore, it may not be wrong if a view is taken that OM dated is the applicable OM providing for the scheme of amalgamation and merger of schools which is now sought to be implemented by the State. 18. With the above understanding, grounds of challenge of the petitioners and the response of the State may now be addressed. Grounds of Challenge 19. After going through the writ petitions, the following grounds of challenge could be culled out. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 21 of 31

22 19.1. Headmasters of ME & MEM Schools are the Drawing and Disbursing Officers being the head of institution. In case of amalgamation, Headmasters of ME and MEM Schools would become subordinate to Headmasters of amalgamated High Schools; many of whom were students of the Headmasters of ME and MEM Schools. This will lead to their abject humiliation and would also be violative of Article Donors of land of ME and MEM Schools would be dishonoured as their names will be erased leading to humiliation of their family members To be an Assistant Teacher of High School, one must be a graduate with B.Ed. degree, but many teachers of ME and MEM Schools are undergraduates without B.Ed. degree. There is confusion regarding excess teachers and their transfer to other schools. Many of the teachers of ME and MEM Schools are on the verge of retirement. At this stage of their career, declaring them as excess teachers and posting them in other schools would be unfair and unjust. Seniority of the Assistant Teachers of ME and MEM Schools would be jeopardised. Senior most teacher of the ME and MEM Schools would become subordinate to the teachers working in the High Schools which will lead to their humiliation Though Headmaster of ME and MEM Schools would be designated as Assistant Headmaster of High School, the same would be meaningless unless post of Assistant Headmaster is created No discussion was held with any of the stake holders, more particularly with the Teachers of ME and MEM Schools, before framing the scheme In a meeting held by the representatives of the Education Department, Govt. of Assam with the members of All Assam ME School Teachers Association on , the members were informed that no decision was taken by the Education Department for compulsory amalgamation of ME/MEM Schools. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 22 of 31

23 19.7. When OM dated was issued by the State Govt. in the Education Department instructing the Inspectors of Schools to finalise amalgamation proposals of ME Schools with High Schools, the same was challenged before this Court in WP(C) No.677/2005 (Krishna Kanta Talukdar Vs- State of Assam). State Govt. made a categorical submission before the Court that such decision for amalgamation was not imposed from the top but was based on consensus between the two schools. On the basis of such submission, this Court had passed order dated directing that scheme of amalgamation should be confined to consenting schools and should not be forced upon unwilling schools operating within the same campus When the Govt. in the Elementary Education Department issued OM dated , the same came to be challenged before this Court in WP(C) No.6685/2014 wherein an interim order was passed on to the effect that there should be no further amalgamation of schools Therefore, the latest OM dated is in violation of the letter and spirit of the aforesaid order of this Court Forcible amalgamation or merger of schools is illegal, arbitrary and unjust Dignity and honour of the serving teachers of ME and MEM Schools have been compromised by such high handed action. Response of the State 20. Shri Ramesh Chand Jain, Secretary to the Govt. of Assam, Secondary Education Department in his affidavit has stated that the State Government vide the OM dated has introduced a scheme called, Siksha Khetra for amalgamation and merger of different categories of schools situated in the same campus or in nearby areas. The objective is to bring all such schools within one single administrative and academic unit. Before issuing the OM, Govt. had considered various aspects of the matter. Assistant Teachers and other staff of the LP and ME Schools shall be placed at the disposal of the Secondary Education Department post amalgamation and the staff pattern of the WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 23 of 31

24 amalgamated school shall be as per existing norms of the highest school; excess teaching and non-teaching staff shall be posted elsewhere against vacant posts with their seniority intact. It has also been clarified that post amalgamation, there would be no financial loss of the teaching and non-teaching staff In a case where one or more LP Schools or one or more ME Schools are amalgamated, Assistant Teachers of the LP School would be the teachers of the amalgamated school and the Headmaster of the ME School would be the Headmaster of the amalgamated school. In case of amalgamation of junior schools with High Schools, the Headmaster of the High School would continue to be the Headmaster after amalgamation and the post of Headmaster of ME School would be re-designated as Assistant Headmaster with the existing pay scale. In the event, there is amalgamation of High School with Junior College, Principal of the Junior College would continue as the Principal after amalgamation and the post of Headmaster of High School would be redesignated as Vice Principal with the existing pay scale OM dated has been issued to bring about a better educational ambiance and for optimum utilization of human resources. After amalgamation, teachers of ME Schools would have to teach the students of Primary Schools; similarly teachers of Higher Secondary and High Schools would have to teach the students of ME Schools which would be highly beneficial to the student community at large. On the other hand, better infrastructure of the higher schools can be utilized by the students of the lower schools. Post amalgamation, no teacher would be derived of their existing service benefits meaning thereby that they would not be visited with any adverse service consequences Project Approval Board in its 233 rd meeting while considering the Annual Work Plan and Budget of Sarba Siksha Abhiyan suggested amalgamation of schools having less enrolment of students. On the other hand, Rashtriya Madhyamik Siksha Abhiyan has suggested that focus should be on upgradation of schools rather than establishing wholly new schools to provide cost effective solutions. As a result, different schools located WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 24 of 31

25 within the same campus can share their libraries and laboratories which would be highly beneficial to both the teachers and the students Amalgamation of schools would give an impetus to quality education. The scheme framed by the Govt. does not violate any constitutional or statutory provision and no legal right of the petitioners has been violated. 21. Learned counsel for the parties have made extensive submissions based on the pleadings and grounds urged. A large number of decisions have been cited at the Bar. Submissions made and the judgments cited at the Bar have received the due consideration of the Court. Mr. Saikia, learned Senior Addl. Advocate General has also produced the record, which has been perused. 22. Key features of the two OMs dated and have already been noticed. It has also been discussed above that though not expressly stated, the former OM dated would now give way to the OM dated , which is now being sought to be implemented by the State. As discussed above, the OM dated lays down a scheme called, Siksha Khetra, the objective of which is to provide for amalgamation of different categories of schools situated within the same campus and merger of similarly situated schools in nearby areas. This would bring all such schools within one academic and administrative unit, which will enhance the quality of education by way of sharing of better infrastructure and rationalization of human resources. Section 6 of the 2009 Act mandates the appropriate Government and the local authority to establish within such area or limits of neighbourhood as may be prescribed, a school where it is not so established, within a period of three years of the commencement of the 2009 Act. Rule 4 of the Assam Right of Children to Free and Compulsory Education Rules, 2011 prescribes the areas or limits for the purpose of section 6 which is walking distance of 1 km of the neighbourhood in respect of children in Classes-I to V and 3 km for Classes-VI to VIII. On the other hand, as per Section 25 of the 2009 Act, the appropriate Government and the local authority are required to ensure compliance of Pupil-Teacher WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 25 of 31

26 Ratio as specified in the schedule to the 2009 Act. Viewed in the above context, the OM dated appears to be in tune with the aforesaid statutory requirements. 23. From a perusal of the record, it is seen that while preparing the scheme, the State Government had sought for the views of Omeo Kumar Das Institute of Social Change and Development, a Non-Governmental Organization, sponsored by the Indian Council of Social Science Research and Govt. of Assam. Without entering into the administrative and legal issues, the said Institute had opined that the scheme relating to amalgamation and merger of schools is a welcome step and would facilitate streamlining of the school system in the State. The opinion was based on field level experience. However, it was suggested that amalgamation should be carried out in a phased manner and not at one go; this would make the process relatively smooth and systematic. It appears that the 233 rd meeting of the Project Approval Board for considering the Annual Work Plan and Budget for the year for Sarba Siksha Abhiyan in the State of Assam had suggested amalgamation of schools having lesser enrollment. Likewise, the Rashtriya Madhyamik Siksha Abhiyan also suggested that the focus should be on upgradation of schools rather than establishing wholly new schools. Noting that small schools find it harder to offer full range of curriculum option to the students, both general and vocational, resources across different schools located within a single campus, such as, common libraries, laboratories, teachers rooms, toilets etc. could be shared to enhance quality of education. This would improve access to secondary schooling as well as the pupil-teacher ratio. 24. It is further seen that a Cabinet memorandum was prepared to place the scheme for amalgamation and merger of different categories of schools before the Cabinet. It was stated that with a view to derive optimum services of the employees and other logistic support of the schools, it was proposed that schools situated in same campus or in nearby area should be amalgamated/merged and all the schools should be brought under one single administrative and academic unit. It was mentioned that the matter was consulted with the Finance (EC-III) Department and the Finance Department vide endorsement dated had expressed no objection to the proposal subject to certain WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 26 of 31

27 observations which it appears have since been incorporated in the scheme. The scheme was placed before the Cabinet in its meeting held on and the Cabinet approved the same. Thereafter the OM dated was issued. 25. From the above, it is quite evident that the scheme framed is a policy decision of the Govt. striving for improving the quality of education; amalgamation and merger of schools being one of the steps in that direction. What is understood by the expression policy decision or what constitutes policy decision was explained by the Supreme Court in Rai Sahib Ram Jawaya Kapur Vs. State of Punjab, reported in AIR 1955 SC 549 and again in Bhumi Nath Vs. State of J&K, reported in (1997) 2 SCC 745 and requires no re-statement. It is within the constitutional scheme of governance that the executive Govt. has the discretion to lay down schemes and policies and unless such schemes and policies are found to be arbitrary, unreasonable and violative of statutory or constitutional provisions, a writ court would be reluctant to interfere with the policy decision of the Govt. The grounds urged by the petitioners in support of their challenge to the policy decision of the Government, I am afraid would not be adequate for a judicial scrutiny of the policy decision. It is inevitable in the course of implementation of a policy decision there may be possibility of individual hardship, but that cannot be a ground to injunct the State from exercising its executive authority and enforcing the same. 26. What can be deciphered from the grounds of challenge is that there appears to be a feeling amongst the teachers of ME Schools that post amalgamation, they would face embarrassment in the company of High School teachers and they would no longer be able to be Headmasters of independent ME Schools. As already noticed above, such a ground would not be a valid one to strike down a policy decision of the Govt. While examining the key features of the scheme, it has already been noticed that the existing Headmaster of ME School would be designated as Assistant Headmaster of High School post amalgamation and he would continue to draw his existing pay with his seniority and service status intact. Those teachers of ME Schools who are graduates would be provided graduate scale of pay as per the scheme and those who are not graduates would continue to draw the existing pay and allowances. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 27 of 31

28 27. Having said that, Court is of the view that respondents should also examine the concept of nearby area so that there is no ambiguity in the same and in the event of any teacher or staff found in excess post amalgamation, posting them in far flung areas may be avoided. It may therefore, be useful to define the expression nearby area as appearing in the OM dated Furthermore, Court is of the view that those teachers who are on the verge of superannuation may not be transferred out to other schools. Even in the event of them being found as excess teachers, their services may be retained in the amalgamated school within the same campus till their superannuation whereafter the post may be rationalized keeping in mind the objective of the scheme. 28. It is also seen that though District Level Committees and State Level Committee have been proposed to facilitate amalgamation and merger of schools, it would be in the interest of all concerned to carry along all the stake holders in this process, and certainly, teachers are an important stake holder in this process. An unhappy teacher or a teacher with his grievance unaddressed post amalgamation would not be in a position to deliver the goods. To obviate such a situation, a grievance redressal mechanism may be put in place. That apart, views/response of the concerned schools may be called for and considered before final decision is taken on amalgamation and merger. 29. Learned counsel for the petitioners in the course of hearing had also referred to the provisions of Rules 3 (ii) and 4 (ii) of the Assam Secondary Education (Middle English Schools and High Schools) (Provincialisation) Rules, 1979 to contend that in the case of amalgamation and merger the aforesaid provisions would be violated; besides Rule 14(3) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 would come in the way of Headmasters and teachers of ME Schools from becoming Assistant Headmaster of High School. In case of Rule 3(ii), minimum qualifications are prescribed for teachers of High School, which is graduation. Likewise, under Rule 4(ii), minimum qualifications are prescribed for teachers of ME School, which is normal, matric or intermediate passed in case of Assistant Teachers and graduation in the case of Headmaster, relaxable in exceptional cases by the Government upto intermediate or Pre- WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 28 of 31

29 University passed. The aforesaid provisions would have to be understood in the context of the objective of the said Rules of 1979 i.e., eligibility of High Schools and Middle English Schools for provincialisation. On the other hand, Rule 14(3) of the 2003 Rules provides that in case of amalgamated High School, Headmaster of the ME School, would be eligible for promotion to the post of Assistant Headmaster provided he/she is the founder Headmaster of the ME School or has atleast 10 years of teaching experience in ME School, if he/she is not the founder teacher. However, as per the scheme, in the event of amalgamation, Headmaster of ME School would be re-designated as Assistant Headmaster of the amalgamated High School, even if he/she does not possess the requisite qualification. Since a rule is in place, it may have to be amended to give effect to the scheme. But that would not be a ground to annul the scheme. 30. Having said that, it cannot be, but be noticed that the objection to the scheme has come almost entirely from LP and ME School teachers. On thorough consideration of the matter, Court is of the considered opinion that objections raised by the petitioners to the OM dated are not legally sustainable and Court would not like to interfere with the Govt. policy subject to the observations made above. 31. In SP Shivprasad Pipal Vs. Union of India, reported in (1998) 4 SCC 598, Supreme Court has held that a decision to merge different cadres is essentially a matter of policy. It is possible that by reason of such merger the chance of promotion of some of the employees may be adversely affected. But this cannot be a ground for setting aside the merger which is essentially a policy decision. Mere chance of promotion is not a condition of service and the fact that there would be reduction in the chances of promotion would not amount to a change in the conditions of service. 32. In Indian Airlines Officers Association Vs. Indian Airlines Ltd., reported in (2007) 10 SCC 684, Supreme Court has held that Court should not substitute its wisdom for the Govt. on the ground that a better formula could be evolved. Court is only concerned and should ensure that unreasonable perversity, mala-fide manipulation, indefensible arbitrariness and like infirmities do not defy the decision under consideration. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 29 of 31

30 33. Likewise, Supreme Court has held in Union of India Vs. Pushpa Rani, reported in (2008) 9 SCC 242 that it is not for the Court to suggest the manner in which employer should structure or re-structure the cadres for the purpose of improving efficiency of administration. 34. A Division Bench of this Court in Tapan Kumar Das Vs. State of Assam, reported in 2013 (3) GLT 65 has also sounded a note of caution by saying that amalgamation or integration of cadres is a complicated administrative process. While doing so, interest of some of the employees may be affected, but if such steps are taken in the greater public interest and is inevitable, Court would not interfere with such decision. 35. Supreme Court in Census Commissioner Vs. R Krishnamurthy, reported in (2015) 2 SCC 796, has reiterated the position that the Courts are not to plunge into policy making. While interference with policy is permissible in law when there is violation of law and infraction of fundamental rights, yet the policy has to be scrutinized with ample circumspection. The executive authority of the State is within its competence to frame a policy and unless such a policy is absolutely capricious and arbitrary thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court should not tinker with the policy decision of the State. It is not within the domain of the Court to embark upon the unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy could be evolved. 36. From the above, the consistent judicial thinking on this point is clearly discernible. There is extremely limited scope for judicial foray into a policy decision of the State. Having regard to the grounds of challenge made to the policy decision as highlighted above, Court is of the unhesitant view that no case for interference is made out, save and except the observations made above. WPC Nos.6685, 6194, 6930, 6934, 6935, 6946, Page 30 of 31