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Gauhati High Court · body

2001 DIGILAW 296 (GAU)

Rais Uddin v. State of Assam

2001-10-04

P.G.AGARWAL

body2001
P.G. AGARWAL, J. — Heard Mr. MH Rajbarbhuiya, learned counsel for the petitioner and Mr. TN Phukan, learned senior Advocate as well as learned State counsel. 2. The case of the petitioner Sri Rais Uddin is that he was appointed as founder teacher of Charanadiapara M.E. Madrassa for short 'Madrassa in the year 1977 and since then, he serving in the said school - Madrassa with one Azir Uddin Ahmed as the headmaster of the said Madrassa and he was the second teachers. The said school was subsequently provincialised and the petitioner accordingly served as a sole Assistant teacher under the headmaster - Sri Azir Uddin Ahmed. Unfortunately, said Azir Uddin Ahmed died-in-harness and thereafter, vide order dated 27.4.2000, District Elementary Education Officer, allowed the petitioner to hold current charge of the headmaster, as he is the senior most teacher in the said school. Subsequently, respondent No. 4 who was serving as headmaster of Salmara Girls M.E. School was temporarily attached as Assistant teacher in the Madrassa vide order dated 26.3.2000. The relevant order reads as follows :- "ORDER On his own request, Ataur Rahman, Headmaster of Salbari Girls M.E. School is hereby temporarily attached as Asstt. teacher as his own scale of pay at Char Nadiapara M.E. Madrassa. This order will come into force after re-opening of the summer vacation Sd/- Sri BN Talukdar, District Elementary Education Officer, Barpeta Memo No. DEE/Trans/T/4246-55 dated 23.6.2000" 3. The respondent No. 4 accordingly, appointed as Assistant teacher in the Madrassa. Thereafter, respondent No. 4 vide order dated 13.3.2001, Annexure-8 was allowed to hold charge of the headmaster. The relevant order reads as follows :- "ORDER Ataur Rahman, who was transferred as Headmaster at Char Nadiapara M.E. Madrassa is hereby allowed to hold the charge of head master unilaterally with effect from the date of issue of the transfer order. This has been made in pursuance of this office order under Memo No. DEE/Trans/T/18186-91 dated 13.3.2000" 4. The petitioner, thereafter approached this court stating inter alia that as he is senior most teacher serving in the Madrassa, he is entitled for appointment as headmaster of the school and/or to hold charge of the headmaster of the school till regular appointment is made. The petitioner, thereafter approached this court stating inter alia that as he is senior most teacher serving in the Madrassa, he is entitled for appointment as headmaster of the school and/or to hold charge of the headmaster of the school till regular appointment is made. It is further stated that the respondent No. 4 was transferred to the said school as Assistant teacher at his own request on compassionate ground and as such, he is to be treated as junior to the petitioner. The case of the respondent No. 4, on the other hand, is that he is senior in service to the writ petitioner as he is serving as headmaster. The respondents claim is that he was transferred to Madrassa on public demand only. On perusal of the record, I find no force in the submission that the respondent No. 4 was transferred to the Madrassa on public demand. The impugned order as quoted above, clearly shows that the respondent No. 4 was transferred to Madrassa on his own request. The question that comes up for determination as whether a person on being transferred from one school to another school on his own request, is entitled to carry his seniority to that school or loose his seniority. The learned counsel for the petitioner placed reliance in the case of Union of India -vs-*CN Konappa, AIR 1996 SC 764 . The learned counsel for both sides submitted that the Rules governing the matter arising between petitioner and the respondent No. 4 are silent on the matter of seniority on transfer. The learned Government Advocate, however, submits that a person transferred on his own request, loss his seniority. I find sufficient force in the above submission and hold that whenever a person is transferred on his own request form one school to another school he loss his seniority of that school. The transferee teacher cannot be allowed to carry his seniority to other school. In that case any person who is serving as a teacher of a school, may opted to go of other school to become the senior most teacher and thereby become eligible for appointment headmaster of that school, thereby, unsettling the entire process of seniority. The transferee teacher cannot be allowed to carry his seniority to other school. In that case any person who is serving as a teacher of a school, may opted to go of other school to become the senior most teacher and thereby become eligible for appointment headmaster of that school, thereby, unsettling the entire process of seniority. The Government of Assam has laid down the procedure for the promotion of headmaster of M.E. Madrassa vide notification dated 30th August, 1986 whereby, selection process for the post of headmaster in such Madrassa school is to be made strictly on the basis of seniority-cum-efficiency. If the statement made by the respondent No. 4 is accepted, teachers will be on fishing expedition to find out where they can become senior most teacher and thereby earn eligibility for consideration to the post of headmaster. Annexure-7 as quoted above, clearly shows that the respondent No. 4 was temporarily attached as Asstt. teacher in the Madrassa at his own request. This is not a case where a person serving as a senior most teacher in a particular school or Madrassa was found not eligible for promotion to the post of headmaster and as such, another headmaster from another school has been brought in to manage the school. Annexure-9 as quoted above in contradictory in the sense that if the respondent No. 4 was transferred as headmaster, where is the scope for allowing him to hold charge of headmaster. Admittedly, respondent No. 4 was not transferred was a headmaster, but he was attached as an Asstt. teacher. Respondent No. 4 cannot be treated as senior to the writ petitioner in the Char Nadiapara M.E. Madrassa. 5. Writ petition is therefore allowed and the impugned orders allowing the respondent No. 4 to hold charge of headmaster of Char Nadiapara M.E. Madrassa is hereby set aide. Writ petitioner is allowed to hold charge of the said Madrassa till regular appointment is made. The respondent-authority is directed to make regular appointment to the post of headmaster in the said Madrassa within a period of 2(two) months. The respondents will be at liberty to consider the education qualification other eligibility of the petitioner and select proper person in accordance with the Rules framed and guidelines framed from time to time in the matter. No order as to costs.