Page No.# 1/6 GAHC010179402025 2025:GAU-AS:10915 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4616/2025 ABDUL RAHIM SARKAR S/O ABU BAKKAR SIDDIQUE R/O VILL- BATUATULI, P.O. DEBOTTOR HASHDAHA, P.S. GOLAKGNAJ, DIST. DHUBRI, ASSAM VERSUS THE STATE OF ASSAM AND 7 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, THE DEPARTMENT OF SCHOOL EDUCATION, DISPUR, GUWAHATI-6. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM DEPARTMENT OF SCHOOL EDUCATION KAHILIPARA GUWAHATI-19. 3:THE DISTRICT COMMISSIONER DHUBRI P.O. P.S. AND DIST. DHUBRI ASSAM PIN-783301. 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER P.O. AND DIST. DHUBRI PIN-783301. 5:THE DY. INSPECTOR OF SCHOOL P.O.AND DIST. DHUBRI ASSAM PIN-783301 Page No.# 2/6 6:THE BLOCK ELEMENTARY EDUCATION OFFICER GOLAKGANJ P.O. AND P.S. GOLAKGANJ DIST. DHUBRI ASSAM PIN-783334. 7:PASUR UDDIN BEPARI PRESIDENT OF THE SCHOOL MANAGING COMMITTEE MARAKURA MILAN M.E. SCHOOL VILL- MARAKURA MILAN M.E. SCHOOL VILL- MARAKURA P.O. MOTERJHAR DIST. DHUBRI ASSAM PIN-783334. 8:YEACHIN ALI S/O HAKIM ALI R/O VILL- CHAPAR BALAJAN P.O. MOTERJHAR P.S. GOLAKGANJ DIST. DHUBRI ASSAM PIN-783334 Advocate for the Petitioner : MR. A RAHMAN, Advocate for the Respondent : GA, ASSAM, SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 18.08.2025 Heard Mr. A. Rahmen, learned counsel for the petitioner and Ms. S. Chutia, learned standing counsel for the respondent 1 and 2 in Elementary Education Department and Ms. D.D. Barman, learned Additional Senior Government Advocate for the respondent No. 3. 2. In this petition, under Article 226 of the Constitution of India, the Page No.# 3/6 petitioner has challenged the order, dated 05.08.22025, Memo No. EED-58/PT- IX/2025/918-A, issued by the District Elementary Education Officer, Dhubri, whereby the petitioner is released from the post of In-Charge Head Master of Malakura Milon M.E. School and one Yeachin Ali, respondent No.8, was allowed to act as In-Charge Head Master with financial power, in addition to his own normal duties. He also prayed for issuing direction to the respondent authorities to allow him to continue as In-Charge Headmaster at Marakura Milan M.E. School till regular Headmaster is posted. 3. Mr. Rahman, learned counsel for the petitioner, submits that the petitioner was appointed as ‘Tutor’, vide order dated 05.01.2021, w.e.f. 01.01.2021, by the Director, Elementary Education, Assam and he joined in Malakura Milon M.E. School on 06.01.2021. Thereafter, vide order dated 16.06.2022, he was temporarily allowed to act as In-Charge Head Master of Marakura Milan M.E. School to draw and disburse the monthly salary of teaching and non-teaching staff and other financial works of the school in addition to his own normal duties, w.e.f. 09.06.2022 to 03.08.2022, or till the regular Headmaster is posted, whichever is earlier, as the then In-Charge Head Master, namely, Manindra Nath Ray, suffered demise on 08.06.2022. But, while the petitioner was discharging his duties as In-Charge Headmaster, the respondent authorities had appointed one Yeachin Ali, respondent No. 8 herein, as Assistant Teacher and thereafter, vide impugned order dated 05.08.2025, he was allowed to act as In-Charge Head Master with financial power, in addition to his own normal duties, w.e.f. 01.08.2025 to 31.10.2025, or till the regular Headmaster is posted, whichever is earlier, in Malakura Milon M.E. School. Mr. Rahman further submits that the said order was passed without issuing notice and without affording an opportunity of being heard to the petitioner and as such the Page No.# 4/6 impugned order is illegal, arbitrary and on such count the same is liable to be interfered with. 4. Per-contra, Ms. Chutia, learned standing counsel for the respondents in Elementary Education Department, referring to the Annexure No. 1, i.e. the appointment letter of the petitioner, submits that he was appointed as ‘Tutor’ vide order dated 05.01.2021, w.e.f. 01.01.2021, and on account of death of erstwhile In-Charge Head Master, he was allowed to hold the charge of In- Charge Head Master with all financial powers. Ms. Chutia further submits that thereafter, the respondent No. 8 was appointed as Assistant Teacher in the said school and since in view of the proviso to Section 2(u) of the Assam Education (Provincialisation of Services of Teachers and Re-Organization of Educational Institutions) Act, 2017 (the Act of 2017 hereinafter), a ‘Tutor’ shall not be eligible to hold the post of Professors, Principal, Vice- Principal, Headmaster, Assistant Headmaster, Superintendent, Assistant Superintendent, as the case may be, in an educational institution, provincialised under this Act and in view of the aforesaid provision, the present petitioner cannot hold the post of In-Charge Head Master and since one ‘Assistant Teacher’ has already been appointed in the said school, who is eligible to hold the post of In-Charge Head Master, he has accordingly been allowed to hold the charge of In-Charge Headmaster. As such, the respondent authorities had not committed any illegality or infirmity in releasing the present petitioner from the post of In-Charge Headmaster and that being so, the impugned order dated 05.08.2025, suffers from no infirmity or illegality, requiring any interference of this court. Ms. Chutia further submits that the present petition is not maintainable and therefore, she has contended to dismiss the same. Page No.# 5/6 5. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and the impugned order, dated 05.08.2025, and also gone through the relevant provision of law, i.e. proviso to Section 2(u) of the Act of 2017. 6. That perusal of the proviso to Section 2(u) of the Act of 2017, reveals that a ‘Tutor’ is not liable to hold the post of Headmaster of an educational institute, provincialised under the Act of 2017. 7. Indisputably, the present petitioner was appointed as ‘Tutor’ and he was allowed to hold the post of In-Charge Headmaster, on account of demise of erstwhile In-Charge Headmaster, namely, Manindra Nath Ray, vide order dated 16.06.2022. Thereafter, one Yeachin Ali, respondent No.8, was appointed in the said school as Assistant Teacher and he being eligible to hold the post of In-Charge Headmaster, he was allowed to act as In-Charge Headmaster with all financial powers in addition to his normal duties, vide impugned order dated 05.08.2025. 8. In that view of the matter, no illegality appears to have been committed by the respondent authorities in allowing the respondent No. 8, to act as In-Charge Headmaster of Malakura Milon M.E. School, and releasing the present petitioner from the said post. Since the petitioner is not eligible to hold the post of Head Master, for being appointed as ‘Tutor’, no legal right accrues in favour of the petitioner. And as such the question of violation of the same does not arise, so as to invoke the extra-ordinary jurisdiction of this Court, under Article 226 of the Constitution of India. And on such count, the present petition is found to be not maintainable and accordingly, the same stands Page No.# 6/6 dismissed at this motion stage itself, leaving the parties to bear their own costs. JUDGE Comparing Assistant