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Gauhati High Court · body

2002 DIGILAW 30 (GAU)

Arun Ch. Neog v. State of Assam and Ors.

2002-01-11

P.G.AGARWAL

body2002
P. G. AGARWAL, J.- Heard Mr. C. Baruah, learned Senior Counsel for the petitioner, Dr. Y. K. Phukan, learned Senior Counsel for the respondent No. 5 and the learned Govt. Advocate, Assam. 2. This is the second round of litigation between the petitioner and the respondent No 5 in the matter of fixation of seniority. The case of the petitioner Sri Arun Chandra Neog is that he joined as teacher in the Dohotia High Secondary School in the year 1971. The appointment was approved by the Managing Committee of the said school and the petitioner was given intermediate scale of pay with effect from 1971. In the meantime, the petitioner obtained Gradute Degree in the year 1974 and the petitioner was given graduate scale of pay from 23.2.77. On the other hand, the respondent No. 5 Robindra Nath Sharma was appointed as Stipendary teacher by the Inspector of Schools and the said Sharma joined the above school on 9.2.74. The respondent No. 5 was given Graduate Scale of pay with effect from January, 1975. The school was provincialised some time in the month of October, 1967. 3. The case of the petitioner is that he was appointed on regular manner by the Managing Committee of the School and had joined the institution in the year 1971, whereas the respondent No. 5 was appointed as Stipendary teacher only in the year 1974 and, as such, the petitioner is senior to respondent No. 5 because of his earlier joining in the said school. However, the respondent authorities placed the respondent No. 5 as senior to him and the petitioner has approached this Court in Civil Rule No. 1550/97. This Court vide the order dated 29.9.99 directed the Director of Secondary Education, Assam to examine the matter afresh after hearing both sides and determine the inter se seniority between the petitioner and the respondent Robindra Nath Sharma . Thereafter vide the impugned order dated 21st June 1999, the Director of Secondary Education has reiterated his earlier decision holding that Robindra Nath Sharma is senior to the petitioner. Hence, the present writ petition, wherein the petitioner has challenged the fixation of seniority and has also asked for direction to direct the authority to allow the writ petitioner to hold charge of the Vice Principal of the school. 4. Dr. Hence, the present writ petition, wherein the petitioner has challenged the fixation of seniority and has also asked for direction to direct the authority to allow the writ petitioner to hold charge of the Vice Principal of the school. 4. Dr. Phukan at the outset has l submitted that the writ petition has become infructuous in the sense that in the meantime the respondent Robindra Nath Sharma was selected as Vice Principal and accordingly he was appointed as Vice Principal of the School. Thereafter on superannuation of the Superintendent of the School the respondent has been placed in-charge of the school. 5. Learned counsel for the petitioner has submitted that the Assam Secondary Education (Service & Conduct) Rules, 1979 shall be applicable in the present case. The above Rules are silent as regards the fixation of inter se seniority which merely provides for regularization of service. Dr. Phukan, on the other hand, submitted that the Assam Secondary Education (Provincialisation) Service Rules, 1982 shall be applicable. Rule 13 (1) and (2) reads as follows : "Seniority (1) inter se seniority of the exisiting 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 details to the State Government whose decision shall be final." 6. In the present case we are concerned with the inter se seniority between the two teachers who belong to Graduate rank and Graduate Scale of pay. There is no dispute at the Bar that the writ petitioner had joined their school prior to the Respondent No. 5. There is also no dispute that the petitioner was given intermediate scale of pay and he was given the Graduate scale of pay with effect from 22.3.77, whereas the respondent No. 5 was given the Graduate Scale of pay with effect from 1.1.75. Annexure- Q submitted by the petitioner himself supports the above statement. Petitioner, however, claims that as the respondent was appointed as a stipendary teacher only and his services were confirmed with effect from 1.3.78, the respondent should be deemed to be the junior to the petitioner as the petitioner's services were confirmed earlier to that of the respondent. Annexure- Q submitted by the petitioner himself supports the above statement. Petitioner, however, claims that as the respondent was appointed as a stipendary teacher only and his services were confirmed with effect from 1.3.78, the respondent should be deemed to be the junior to the petitioner as the petitioner's services were confirmed earlier to that of the respondent. However, no document has been produced by the petitioner to show the date of confirmation of the petitioner or the respondent No. 5. Petitioner, however, placed reliance on Annexure-1 dated 28.9.77. The relevant portion reads as follows: "With reference to the above mentioned subject I would like to inform you mat due to promotion of Sri Harendra Nath Borthakur to the post of Asstt. Headmasters graduate post which had fallen vacant in your school and appontment of Sri Arun Chandra Neog. B,SC Asstt. Teacher who was appointed in the vacant graduate post w.e.f. 22.3.77 has been approved. Further on examination of the list of graduate teachers in your school it is seen that there is one graduate teacher short. So due to the shortage of required number of list graduate teachers Sri Ghanashyam Chetia has been appointed and approved in the said post w.e.f. 1.4.77 The person who has been appointed in the post of Hindi Teacher is not qualified to get graduate scale. So, his appointment has been approved in the undergraduate scale." 7. A perusal of the above will show that vide Annexurc-1, the appointment of the petitioner in the Graduate Scale was approved. This cannot be termed as letter of confirmation of the petitioner in the Graduate scale. 8. The concerned authority on the plea that the respondent was in the Graduate Scale of pay prior to the petitioner held the respondent as senior to the petitioner. At this stage. We may refer to Annexure-W which has been filed by the writ petitioner along with his additional affidavit. Annexure-W reads as follows : "If the Graduate Scale of pay is granted to all the Asstt. Teacher 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. Annexure-W reads as follows : "If the Graduate Scale of pay is granted to all the Asstt. Teacher 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, if 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." 9. Clause (ii) of the said criteria provides that for the purpose of fixing the inter se seniority the said teacher's date of joining as Graduate Teacher is relevant. The provision in Clause (VI) are also relevant as because if there is a common date for granting Graduate scale for the teachers, initial date of joining becomes relevant for the purpose of fixing the inter se seniority. In the instant case there is no common date of granting Graduate scale of pay. The respondent was given graduate scale of pay much earlier to the writ petitioner and as such in the rank of Graduate scale teachers the respondent No. 5 shall be deemed to be senior to the writ petitioner, Although the writ petitioner had joined the institution prior to the respondent. In view of the above, I find no infirmity in the impugned order. The writ petitioner is dismissed without any order as to costs.