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Gauhati High Court · body

2002 DIGILAW 3 (GAU)

Ashish Kumar Sengupta v. State of Assam

2002-01-03

D.BISWAS

body2002
D. BISWAS, CJ. — The petitioner is a Graduate in Science and he was appointed as Assistant Teacher in the then Ledo Bazar High English School by the Managing Committee by an order passed on 25.2.67. Since then he has been working in this school and on a number of occasions had the opportunity to act as In-charge Assistant headmaster/Headmaster. The respondent No. 4 was appointed as a Teacher under the Half-a-Million-Job Programme. His initial appointment was as a stipendary teacher at a fixed salary of Rs.150 per month. He was outside the cadre of regular teachers till 1986. In 1986, the services of all the teachers throughout the State of Assam were encadered except the teachers appointed under Half-a-Million-Job Programme. The school in question was recognised in 1972 and provincialised in 1977. The seniority list maintained in the school placed the petitioner at serial No. 1 and the respondent No. 4 at serial No. 4. Despite that, on 11.4.96, the respondent No. 3, the Inspector of Schools, Tinsukia issued an order promoting respondent No. 4 to act as Incharge Assistant headmaster temporarily on the ground that he was given the Graduate scale with effect from 1.1.75. This was done in flagrant violation of the petitioner's right as he was the senior-most teacher in the school. Thereafter, the respondent No. 4 was allowed to act as Assistant Headmaster (i/ c) of the school by an order passed on 11.4.96. Later, he was appointed to act as Headmaster by an order dated 29.1.98. The petitioner submitted various representations to the authorities concerned without any result. The petitioner joined the school on 1.3.67, whereas the respondent No. 4 joined the school on 19.2.74 and they are equally qualified and eligible for appointment to the post of Headmaster. According to the writ petitioner, the respondent No. 4 cannot be senior to him merely because he was given the Graduate scale of pay in 1975. 2. It appears that the State of Assam has not filed any affidavit in this petition. However, the respondent No. 4 filed an affidavit wherein he has submitted that in the later part of 1985, the Director of Public Instructions issued an order by which all the teachers of all cadres were encadred enabling the teachers appointed under the Half-a-Million-Job Programme to get promotion to the post of Assistant Headmaster and Headmaster. However, the respondent No. 4 filed an affidavit wherein he has submitted that in the later part of 1985, the Director of Public Instructions issued an order by which all the teachers of all cadres were encadred enabling the teachers appointed under the Half-a-Million-Job Programme to get promotion to the post of Assistant Headmaster and Headmaster. The seniority list prepared by the Headmaster showing the writ petitioner as senior-most has been challenged as unauthorised. Since the respondent No. 4 was allowed Graduate scale of pay from 1.1.75 and the petitioner from 1.4.76, it is the respondent No. 4 who is senior to the writ petitioner for all purposes including promotion. 3. The learned counsel for the parties argued at length to justify the respective stand of the parties. 4. The impugned orders dated 11.4.96 appointing the respondent No. 4 as Assistant Headmaster (i/c) and the order dated 29.1.98 appointing him as m-Charge Headmaster have been sought to be quashed in this writ petition. Besides, the order dated 10.8.98 passed by the respondent No. 2 promoting the respondent No. 4 to the post of Headmaster has also been challenged. 5. The earlier two orders relate to the appointment of the petitioner as In-Charge Assistant Headmaster and Headmaster. The order dated 10th August, 1998 is in respect of his promotion to the post of Headmaster on the recommendation of the State Selection Board, Assam and approved by the Government of Assam on 23.4.98. 6. It would appear from a letter written by the Headmaster of Ledo Bazar High Secondary School on 22.1.98 to the Inspector of Schools. Tinsukia that the writ petitioner did not appear before the State Selection Board for Secondary Education for appointment on promotion to the post of Assistant Headmaster for non-receipt of proper intimation. But, this document available at page-29 of the writ petition is a typed copy without authentication by the learned counsel. Therefore, this Court is not in a position to appreciate the contents therein. Besides, in para-12 of the petition, there is an admission that the petitioner appeared before the Selection Board for interview. 7. As per provisions in Rule 9 of the Assam Secondary Education (Provincialisation) Service Rules, 1982 one has to be recommended by the State Level Selection Board for appointment on promotion to the post of Assistant Headmaster and Headmaster. Sub-rule(1) and (2) of Rule 9 read as follows :- "9. 7. As per provisions in Rule 9 of the Assam Secondary Education (Provincialisation) Service Rules, 1982 one has to be recommended by the State Level Selection Board for appointment on promotion to the post of Assistant Headmaster and Headmaster. Sub-rule(1) and (2) of Rule 9 read as follows :- "9. Recruitment by promotion. (1). Recruitment by promotion to the posts of Principal in Grade-I of the Service, Headmaster, Superintendent or Vice Principal in Grade-II and Assistant Headmaster or Assistant Superintendent in Grade-III of the Service shall be made in the manner hereinafter provided. (2) Subject to the provisions of sub-rule (3) to (5) below, the posts of Principal in Grade-I and the posts of Headmaster, Superintendent or Vice-Principal in Grade-11 of the service shall be filled up from the select list prepared by the State Level Selection Board and the post of Assistant Headmaster or Assistant Superintendent in Grade-Ill of the service shall be filled up from the select list prepared by the District Level Selection Board in the order of preference." 8. The above provision lays down the manner in which the promotion is to be given. Therefore, one has to qualify himself or get recommendation from the State Selection Board for promotion to the post of Assistant Headmaster or Headmaster, as the case may be. The petitioner not having been selected cannot stake a claim to the aforesaid post. 9. The main grievance of the petitioner is that his seniority has not been properly computed by the authorities concerned, and illegally he was deprived of the opportunity to act as Assistant Headmaster of Headmaster. But, this is no longer an issue to be addressed since the controversy now centres around regular appointment on promotion to the post of Headmaster. The petitioner cannot insist upon for his appointment on promotion to the post of Headmaster even if he is found to be senior to the respondent No. 4. Rule 9 quoted hereinbefore stands on the way. 10. The circular dated 3rd August, 1981 issued by the Secretary to the Government of Assam, Education Department provides for criteria for promotion to the post of Assistant Headmaster and upgradation of Assistant Teacher to the post of Graduate scale which reads as follows:- "(1) For promotion and appointment of Assistant Teachers to the post of Asstt. Headmaster/Asstt. Headmistress only the services of the incumbent in the graduate post should be considered. Headmaster/Asstt. Headmistress only the services of the incumbent in the graduate post should be considered. The period of service rendered as under graduate teacher (Intermediate post) should not be counted while counting seniority. In other words, seniority should be fixed taking into consideration only the period of service rendered in Graduate scale of pay and the senior-most persons may be considered for promotion. (2) For upgradation of the Assistant Teacher from intermediate post to the graduate scale of pay of the Assistant Teacher, the entire service of the teacher should be taken into consideration (provided that the incumbent is graduate), irrespective of the date of graduation." 11. The above circular makes it clear that the period of service rendered as under-graduate teacher (Intermediate post) shall not be taken into consideration in computing seniority. It has been clarified further that seniority should be fixed taking into consideration only the period of service rendered in graduate scale of pay. Admittedly, in the instant case, the petitioner was given the graduate scale after the respondent No. 4. Therefore, it appears that it is the respondent No. 4 who is senior to the writ petitioner on the basis of the Circular dated 3.8.81. 12. Mr Sahewalla, the learned senior counsel for the petitioner submitted a copy purportedly issued by the Director of Secondary Education, Assam on 22.1.2001 for finalisation of the seniority in respect of teachers for promotion to the higher posts. Para-2 and 4 of the circular dated 22.1.2001 read as follows:- "2. If an Assistant Teacher of a school is appointed as Subject Teacher with continuous service he will get the benefit of seniority from the date of joining as Graduate Teacher in the school. 4. Regarding seniority in respect of H.M.J.P. (Stipendary) teachers, seniority will be counted from the date of regularisation in Graduate cadre w.e.f. 1.5.78 vide Govt. letter No. DSS. 70/72/468 dt. 10.1.78. 13. The above provision, however, does not help the writ petitioner in establishing seniority over the respondent No. 4. Para-6 of the circular provides for fixation of seniority if the Assistant Teachers were given graduate scale from a common date. Para-6 reads as follows:- "6. letter No. DSS. 70/72/468 dt. 10.1.78. 13. The above provision, however, does not help the writ petitioner in establishing seniority over the respondent No. 4. Para-6 of the circular provides for fixation of seniority if the Assistant Teachers were given graduate scale from a common date. Para-6 reads as follows:- "6. If the Graduate scale of pay is granted to all the Assistant Teachers of a High School from a common date due to provincialisation of services, the seniority of the teachers will be counted from the initial date of joining in the school irrespective of their qualification in the venture stage. However, the Managing Committee with the approval of the concerned authority has already determined the inter-se seniority of the Assistant Teacher in the venture stage in such cases the seniority maintained by the Managing Committee will be taken into consideration for promotion." 14. There is no dispute at the Bar that the petitioner was given Graduate scale from 1.4.76 and the respondent from 1.1.75. Annexure-1 attached with the affidavit filed by the respondent No. 4 shows that the respondent No. 4 was given the graduate scale from the above date, i.e. 1.1.75. Nowhere the petitioner disputed this date and also the date of his getting the graduate scale as averred in para-7 of the affidavit-in-opposition. In these premises, it would be difficult to accept the contention of the writ petitioner's claim of seniority over the respondent No. 4. 15. For the reasons above, the writ petition appears to be devoid of merit and hence dismissed.