Aziruddin Choudhury v. State of Assam — 1998 DIGILAW 264 (GAU)

This is an application under Article 226 of the Constitution challenging the promotion of respondent No. 4 to the post of Vice Principal of Lala HS and MP School by order dated 27.1.96. 2. The facts briefly are that the petitioner was appointed as an intermediate teacher in Lala HS and MP School on 3.3.59 and he joined the said school as a graduate teacher on 13.9.62. The respondent No. 4, on the otherhand, joined as a graduate teacher with effect from 3.10.61. The aforesaid school was provincialised with effect from 1.10.77 .In the year 1995, a selection was held for promotion to the post of Vice Principal of the school from amongst the graduate teachers of the schools by the State Selection Board and a select list dated 20.12.94 was published. In the said select list, the order of preference for appointment to the post of Vice Principal of the school in question was given. It was however stated therein that no appointment was to be made in those schools whose any senior candidate was left out. As per the order of preference given in the select list, the name of the petitioner was shown against serial No. l and the name of the respondent No. 4 was shown against serial No. 2. Despite the fact that the petitioner was placed against serial No.l in the order of preference in the select list, the respondent No. 4 was promoted to the post of Vice Principal of the school by the impugned order dated 27.1.96. Aggrieved, the petitioner has moved this Court for quashing the said impugned order and for a direction on the respondent Nos 1 and 2 to promote him as Vice Principal of the school on the basis of the recommendations made by the State Selection Board. On 26.2.96, this Court while issuing Notice of Motion passed an interim order directing that the promotion of respondent No. 4 to the post of Vice Principal of the school under the impugned order would remain stayed. On 26.2.96, this Court while issuing Notice of Motion passed an interim order directing that the promotion of respondent No. 4 to the post of Vice Principal of the school under the impugned order would remain stayed. After notice, the respondent No. 4 has entered appearance and filed his counter-affidavit, and his case was that having joined as a graduate teacher in the school prior to the petitioner, he was senior to the petitioner as graduate teacher in the said school and that the dispute between the petitioner and the respondent No.4 with regard to the seniority was referred to the State Govt and by order dated 13.12.95 the Govt declared that the respondent No. 4 was senior to the petitioner considering the date of joining of the petitioner and the respondent No. 4 in the cadre of graduate teachers in the school and ordered that the respondent No. 4 therefore be promoted to the post of Vice Principal in the school against the existing vacancy. 3. When the civil rule was taken up for admission today, Mr. SA Laskar, learned counsel for the petitioner, submitted that the petitioner has already retired from service as Principal In-charge of the school on 31.3.98 and the respondent No.4 has retired as a graduate teacher from the school on 30.7.96. The only question therefore which has to be decided in this civil rule is as to whether the ' petitioner was entitled to be promoted to the post of Vice Principal in place of respondent No.4 and was consequently entitled to his pay and allowances as Vice Principal for the period he worked as Vice Principal and the salary of Principal for the period he worked as the Principal of the school and to his pension accordingly. He argued that Rules 10 and 10A of the Assam Secondary Education (Provincialised) Service Rules, 1982, would show that the post of Vice Principal is a selection post and that on the basis of assessment of merits of the candidates, the State Selection Board is required to recommend the candidates for the post of Vice Principal in order of merit. According to Mr. According to Mr. Laskar, since in such selection, the Selection Board placed the petitioner above respondent No.4 in the merit list, the petitioner was entitled to be promoted to the post of Vice Principal and not the respondent No. 4 and, therefore, the impugned promotion of the respondent No. 4 was contrary to the provisions of Rules 10 and 10A of the Rules, 1982. Mr. Laskar further contended that the post of Vice Principal in the school in question fell vacant since 27.7.92 and, therefore, the petitioner was entitled to be promoted to the post of Vice Principal of the school with effect from 27.7.92 and was entitled to salary of Vice Principal from 27.7.92. He further stated that the petitioner worked as Principal In-charge of the school with effect from 1st April, 1996 till the date of his retirement on 31.3.98 and therefore, he was also entitled to salary as the Principal of the school an on the basis of the determination of his pay as such Vice Principal and Principal of the school in question he was also entitled to his corresponing pension after his retirement. 4. In reply, Mr. D. Mazumdar, learned counsel appearing for the respondent No.4, contended that the respondent No. 4 having joined as a graduate teacher on 3.10.61, about a year before the joining of the petitioner as graduate teacher on 13.9.62, was senior to the petitioner as graduate teacher. He further stated that in any case the dispute between the petitioner and the respondent No.4 with regard to seniority was referred to the State Govt under sub-rule (2) of Rule 13 of the Rules, 1982, by the Director and the State Govt declared the respondent No.4 as senior to the petitioner after considering the date of joining of the respondent No. 4 and the petitioner in the cadre of graduate teachers in the schools in its order 13.12.95. Mr. Mazumdar submitted that a reading of the said order dated 13.12.95 would further show that the Govt took a view that the respondent No.4 be promoted to the post of Vice Principal of the school against the existing vacancy in view of the aforesaid seniority. According to Mr. Mazumdar, therefore, the respondent No.4 was entitled to be promoted as Vice Principal of the school. Mr. According to Mr. Mazumdar, therefore, the respondent No.4 was entitled to be promoted as Vice Principal of the school. Mr. Mazumdar further argued that the select list that has been annexed to the writ petition as Annexure I was a provisional select list and it clearly stated that the appointment to the post of Vice Principal in order of preference in the select list prepared on condition that no appointment was to be made in those school where any senior candidate was left out. According to Mr. Mazumdar, since the respondent No.4 was senior to the petitioner and had been left out, even the said select list could not confer any right on the petitioner to be promoted as Vice Principal of the school in preference to the responent No. 4. He further argued that the question of seniority as between the petitioner and the respondent No. 4 was open as per the said select list. 5. In my considered opinion, the aforesaid submission of Mr. Mazumdar is entirely misconceived. It is true that the respondent No. 4 having joined as graduate teacher almost a year prior to the petitioner was senior in the cadre of graduate teachers and was declared as senior to the petitioner by order dated 13.12.95 of the State Govt. But in the instant case, the-dispute between the petitioner and the respondent No. 4 is not as to who was senior in the cadre of graduate teachers but as to who was entitled to be promoted to the post of Vice Principal of the school which was entirely a different cadre from that of cadre of graduate teachers. Rules 10 and 10A on which reliance was pi aced by Mr. S A Laskar and Rule 13(1) and (2) on which reliance was placed by Mr. Mazumdar are quoted hereinbelow : "10. Selection Board - For the purpose of selection of candidates under Rule 9 there shall be a Selection Board consisting of the following members : Chairman : (a) Secretary : Education Department Member-Secretary : (b) Director of Public Instruction, Assam Members : (c) Director of Elementary Education, Assam (d) A representative of the Education Department. The State Govt reserves the right to entrust the selection to the State Selection Board established under the Assam Education Selection Rules, 1977. 10. A General procedure for promotion. The State Govt reserves the right to entrust the selection to the State Selection Board established under the Assam Education Selection Rules, 1977. 10. A General procedure for promotion. (1) Before the end of each year the appointing authority shall make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre and in each school. (2) the appointing authority shall then furnish to the Board the following documents and information with regard to the eligible candidates for promotion : (1) information about the number of vacancies : (ii) list of candidates eligible for promotion in order of seniority, (separate lists for each cadre of starting the name of the school shall be furnished indicating the cadre to which the case of promotion is to be considered); (iii) character rools and other records, if any, of the candidates. (3) The appointing authority shall simultaneously request the Board to recommend within one month a list of candidates found suitable for promotion in the order of merit. The Board shall recommend candidates about double the number of vacancies in the order of preference. (4) The appointing authority, on receipt of the list of recommended candidates from the Board, shall fill up the vacancies in accordance with the preference shown in the list. 13. Seniority : (1) The inter-se seniority of the existing employees in the respective cadre shall be determined in relation to the - (a) date of continuous appointment, (b) date of joining (c) date of birth (2) In case of any dispute, the Director shall refer the matter in detail to the State Govt whose decision shall be final," A reading of sub-rule (1) of Rule 13 quoted above would show that the inter se seniority of the existing employees shall be determined in the respective 'cadre' in the manner indicated therein. Sub-rule (2) of Rule 13 further provided that in case of any dispute the Director shall refer the matter in detail to the State Govt whose decision would be final. Therefore, the inter-se seniority between the existing employees as referred to in Rule 13 is the inter-se seniority within a cadre and such inter-se seniority within a cadre is to be decided by the State Govt in case of a dispute and the decision of the State Govt is final. Therefore, the inter-se seniority between the existing employees as referred to in Rule 13 is the inter-se seniority within a cadre and such inter-se seniority within a cadre is to be decided by the State Govt in case of a dispute and the decision of the State Govt is final. The aforesaid rule does not confer any power on the State Govt to decide any dispute with regard to selection made by the State Selection Board under Rules l0 and l0A of the Rules, 1982.A reading of Rules 10 and 10A of the Rules quoted above would further show that the Selection Board is to comprise of the Secretary, Education, the Director of Public Instruction, Assam, the Director of Elementary Education, Assam and a representative of the Education Department, and the Selection Board is to consider the character rolls and other records of all the candidates eligible for promotion in order of seniority and thereafter recommend candidates about double the number of vacancies in the order of preference. The language of sub-rule (3) of Rule 10A would particularly show that the Selection Board is to make its recommendation of the candidates found suitable for promotion in the order of merit. Sub-rule (2) of Rule 10A however, inter alia, provided that the appointing authority is required to furnish to the Selection Board list of candidates eligible for promotion in order of seniority. It is thus clear that while all the eligible candidates for promotion in order of seniority were to be considered by the Selection Board, the recommendation was to be made by the Selection Board in the order of merit and not in the order of seniority. Sub-rule (4) of Rule 10A stipulated that on receipt of the list of recommended candidates from the Selection Board, the appointing authority "shall fill up the vacancies in accordance with the preference shown in the list". It is therefore clear that the appointing authority cannot in any case depart from the order of preference shown in the select list of the candidates recommended by the Selection Board. It is therefore clear that the appointing authority cannot in any case depart from the order of preference shown in the select list of the candidates recommended by the Selection Board. The aforesaid Rules 10 and 10 A of the Rules, 1982 do not anywhere contemplate a provisional select list to be made by the State Selection Board and for alteration of the position of candidates in the order of merit or in the order of preference as recommended by the Selection Board by the appointing authority on the ground that the order of preference recommended by the State Selection Board did not conform to the order of seniority of the candidates in service in the cadre from which the promotion was to be made. 6. The Selection List dated 20.12.94 did mention that it was prepared on the condition that no appointment was to be made where any senior candidate was left out, but the respondent No. 4 who was senior to the petitioner in the cadre of graduate teachers was not left out from consideration by the State Selection Board, but was considered and was placed below the petitioner in the order of preference recommended by the State Selection Board, and the State Govt could not alter the said order of preference as recommended by the Selection Board on the ground that the respondent No. 4 was senior to the petitioner in the feeder cadre of graduate teachers. Further, in case the respondent No.4 was aggrieved by his placement below the petitioner in the order of preference recommended by the Selection Board in the select list, it was open for the respondent No. 4 to have challenged the said recommendation by the Selection Board before the appropriate forum. Mr. Mazumdar vehemently contended that in fact the respondent No. 4 challenged the said recommendation before the State Govt and the State Govt in its order dated 13.12.95 has upheld the said challenge and ordered that the respondent No. 4 was to be promoted as Vice Principal of the school in place of the petitioner as the respondent No. 4 was senior to the petitioner in the cadre of graduate teachers. But, as has been held above, the Rules did not empower the State Govt to consider such a challenge to the order of preference and the order of merit recommended by the Selection Board under Rule 10A of the Rules, 1982 and alter the same on the ground that in the feeder cadre of candidates the seniority of candidates warranted that the senior candidates be placed above the junior candidates in the order of preference or the order of merit in the higher posts for which promotion was to be made. For these reasons, therefore I am of the view that the impugned order of promotion dated 27.1.96 promoting the respondent No. 4 to the post of Vice Principal of the school is liable to be quashed and a direction be given to the respondents 1 and 2 to promote the petitioner in place of respondent No. 4 as Vice Principal of the school with effect from 27.1.96. 7. Coming now to the claim of the petitioner for promotion to the post of Vice Principal and the salary of Vice Principal with effect from 27.7.92, under the Rules and in particular Rules 10 and 10A of the Rules, 1982, promotion to the post of Vice Principal is to be made only on the basis of the selection by the Selection Board. Admittedly, no selection had been made to the post of Vice Principal of the school till 20.12.94. Further, admittedly no appointment to the post of Vice Principal of the school was made on the basis of the said selection till 26.1.96 and by order dated 27.1.96 for the first time a regular promotion was made to the post of Vice Principal of the school. It is settled law that a selection by the Selection Board does not confer a right on a candidate to be appointed on the basis of the said selection and it is the appointing authority who has the discretion to appoint the candidates as recommended by the Selection Board in accordance with the Rules. The claim of the petitioner therefore to salary in the post of Vice Principal of the school from 27.7.92 to 26.1.96 has no merit. The claim of the petitioner therefore to salary in the post of Vice Principal of the school from 27.7.92 to 26.1.96 has no merit. Regarding claim of the petitioner for salary as Principal In-charge of the school, admittedly no selection had been made for the post of Principal of the school in accordance with the aforesaid Rules 10 and 10A of the Rules, 1982. Under the Rules, since a Principal can only be appointed pursuant to a selection under Rule 10 and 10A, the petitioner was not entitled to the appointed as Principal of the school and consequently was also not entitled to salary in the post of the Principal. 8. In the result, the impugned order dated 27.1.96 of the Director of the Secondary Education, Assam, promoting the respondent No. 4 to the post of Vice Principal of Lala HS and MP School, Hailakandi is hereby quashed and it is directed that the respondent Nos 1 and 2 will promote the petitioner to the post of Vice Principal retrospectively with effect from 27.1.96 and grant him consequential financial benefits including pay and allowances from 27.1.96 till the date of his retirement. The respondent Nos 1 and 2 are further directed to determine the pensionary and other terminal benefits of the petitioner on the basis of the said promotion as Vice Principal of the school with effect from 27.1.96. It is stated by Mr. D. Mazumdar, learned counsel appearing for the respondent No.4 that the respondent No. 4 has worked as Vice Principal of the school on the basis of the promotion order dated 27.1.96 for a period of four months and that he has accordingly drawn his salary and allowances. The salary and allowances drawn by the respondent No.4 as Vice Principal of the school for the aforesaid period will not recovered from him. 9. The writ petition is allowed to the extent indicated above. However, considering the entire facts and circumstances of the case, the parties shall bear their own costs.