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2002 DIGILAW 338 (GAU)

Dibya Prasad Nath v. State of Assam

2002-08-09

P.G.AGARWAL

body2002
P.G. AGARWAL, J.— All these four writ petitions have been heard analogously and these are being disposed of by this common judgment. 2. Heard Mr. A.K. Bhattacharyya, learned Senior Advocate, Shri H.N. Sarma, learned Sr. Advocate and the Learned Govt. Advocate, Assam. 3. The matter relates to the inter-se seniority of the teachers in the Dhekial Higher Secondary School, hereinafter referred to as 'the school'. 4. The school was established long back and started receiving adhoc grant from 1.4.47. The School was recognised with effect from 1.1.49 and it started receiving grants-in-aid with effect from 1.3.59. Subsequently the school was provincialised with effect from 1.10.77. Ganesh Ch. Goswami, hereinafter referred to as the petitioner and Dibya Prasad Nath, hereinafter referred to as the respondent for the purpose of convenience had joined the school before provincialisation. The petitioner had joined the school as a Assistant Teacher on 14.10.71 as a Normal Pass candidate and he was given the Intermediate scale of pay. Thereafter, on provincialisation of the school the petitioner was given the Graduate scale of pay with effect from 1.10.77. The respondent was appointed as a stipendiary teacher with effect from 8.6.74, initially at a fixed pay of Rs. 1507- P.M. Thereafter he was given the Graduate scale of pay with effect from 1.1.75. The despite regarding the seniority arose after the retirement of Shri H. Gogoi, the Principal In-charge of the School in the year 1998. The Inspector of Schools directed that the petitioner be given charge of the Principal In-charge and the respondent made a written objection whereupon the petitioner filed Civil Rule No. 3790.98 challenging the Seniority List dated 13.6.98 prepared by the earlier Principal and for a declaration that the petitioner is senior to respondent Dibya Prasad Nath as well as the respondent Shri Joya Devi. In the meantime, on the objection filed by the respondent a notification dated 14.10.98 was passed which was challenged by the petitioner Ganesh Goswami by filing Writ Petition (C) No. 5467/99. The said writ petition and the consequent Writ Appeal 290/2000 was dismissed by this Court. The Inspector of Schools, Dibrugarh thereafter directed that the respondent Dibya Prasad Nath be handed over the charge of the Principalship of the School. The said writ petition and the consequent Writ Appeal 290/2000 was dismissed by this Court. The Inspector of Schools, Dibrugarh thereafter directed that the respondent Dibya Prasad Nath be handed over the charge of the Principalship of the School. Thereafter, pursuance to the direction passed by this Court in Writ Petition No. 1450/01 and Writ Petition 1856/01 the matter was again examined by the Education Department for fixing the seniority of all the concerned teachers, namely, Ganesh Goswami, Dibya Pd. Nath, Sanjib Kalita and Joya Devi. After consideration the Secretary to the Govt. of Assam vide the impugned order dated 15.5.2001 held that the petitioner Ganesh Goswami is the seniormost of all the teachers of the school and accordingly the seniority was fixed. The said order of seniority has been challenged by the respondents Dibya Pd. Nath and Joya Devi. 5. The broad facts of the case are not in dispute. The petitioner joined the School on 14.10.71 and he was given the Graduate scale of pay with effect from 1.10.77, when his services were regularised in the sanctioned post. On the other hand, the respondent Dibya Pd. Nath joined the School on 8.6.74 and he was allowed to draw the Graduate scale of pay with effect from 1.1.75. The respondent Joya Devi, on the other hand, was appointed as a Subject -Teacher with effect from 1.9.77 and she was allowed to draw the Graduate scale of pay with effect from that date. It may be mentioned here that the said school was converted into a Higher Secondary School with effect from 1.3.78 and the services of the two respondents were regularised as sanctioned post of the Higher Secondary Section from 1.3.78 and this was the basis on which the Govt. vide the impugned order decided that as the services of the respondents were regularised with effect from 1.3.78 and whereas the services of the petitioner was regularised with effect from 1.10.77, the petitioner is senior than the respondents. 6. Learned counsel for the petitioner has submitted that the Assam Secondary Education (Provincialisation) (Service and Conduct) Rules, 1979 are applicable to the petitioners but it is seen that the said Rules are silent regarding the seniority. However, subsequently Assam Secondary Education (Provincialisation) Service Rules, 1982 were notified and this Court in catena of decisions held that these Rules are applicable for the purpose of determining the inter-se seniority. However, subsequently Assam Secondary Education (Provincialisation) Service Rules, 1982 were notified and this Court in catena of decisions held that these Rules are applicable for the purpose of determining the inter-se seniority. Rule 13 of the Assam Secondary Education (Provincialised) Service Rules, 1982 reads as follows :- "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 details to the State Government whose decision shall be final." 7. Shri Bhattacharjee, learned Sr. Advocate has submitted that the earlier service of the petitioner as well as the respondents was adhoc, temporary and not against any sanctioned post and hence the same could not be considered for the purpose of seniority and the date of regularisation against the Sanctioned post should be taken for the purpose of fixation of seniority. Sub-rule (5) of Rule 13, as quoted above, clearly indicates that the earlier service is not to be ignored and all appointments made prior to the appointed date shall be deemed to have been regularly made. It is provided that Member of the service whose services has not been confirmed earlier shall be confirmed like the members who have entered service after the appointed date. Further, under sub-rule (7) the entire period of service from the date of appointment is counted for the purpose of pensionary benefit. In the present case, on the appointed date, i.e. 1.10.77 the date of provincialisation the petitioner and the respondents all became Govt. employee as they were serving in the same school. There is no dispute at the Bar that the initial appointment of the respondents were bad in law. Learned counsel for the petitioner has referred to the observation of the Apex Court in the case of Registrar Gen. of India Vs. V. Thippa Setty & Ors. 1998(8) SCO 690, wherein it was provided that where adhoc services were regularised it should be from a prospective date and not from retrospective so that the seniority of those who are already in service are not disturbed. of India Vs. V. Thippa Setty & Ors. 1998(8) SCO 690, wherein it was provided that where adhoc services were regularised it should be from a prospective date and not from retrospective so that the seniority of those who are already in service are not disturbed. In this case, neither the petitioner not the respondents were appointed on adhoc basis and as such the ratio of law laid down in the above case is not-applicable to the facts of the present case. It is therefore held that for the purpose of fixation of seniority the date of continuous appointment of an existing employee under the Rules is relevant factor. 8. Admittedly, the petitioner Ganesh Ch. Goswami is in continuous appointment since 1971, whereas the respondent Dibya Pd. Nath is in continuous appointment from 1974 and the respondent Joya Devi is in continuous appointment from 1977. We, however, find that we are concerned with the inter-se seniority amongst the three teachers who belong to Graduate scale of pay. There is no dispute at the Bar that the petitioner Ganesh Ch. Goswami was given the Intermediate Scale from 14.10.71 and he was given the Graduate scale of pay with effect from 1.10.71; whereas the respondent Dibya Pd. Nath was given the Graduate scale of pay with effect from 1.1.75 and the respondent Joya Devi was given the Graduate scale of pay with effect from 1.9.77, i.e. prior to the writ petitioner. 9. In Writ Petition (C) 3457/99 it was held by this Court that the persons who are getting Graduate scale of pay prior to the other person shall be senior to the persons who have been given the Graduate scale of pay at a later stage. The decision in W.P.(C) 3457/99 was the subject matter of challenge in a Writ Appeal 98/2002 and a Division Bench of this Court vide order dated 22.7.2002 affirmed the above position. It is seen that the facts in Writ Appeal 98/2002 (arising out of W.P.(C) 3457/99) were more or less identical to the present case. The respondent in that case was in continuous appointment in Graduate cadre from 1.1.75 whereas the services were regularised from 1.3.78, as is the case in the present case; whereas the services of the Writ petitioner were regularised from 1.3.77 with the Graduate Scale of Pay. 10. The respondent in that case was in continuous appointment in Graduate cadre from 1.1.75 whereas the services were regularised from 1.3.78, as is the case in the present case; whereas the services of the Writ petitioner were regularised from 1.3.77 with the Graduate Scale of Pay. 10. In the present case, the writ petitioner has filed a copy of the service book of the respondent and on perusal of the same it is seen that the respondent was appointed on a basic pay of Rs. 355/- P.M. in the pay scale of Rs. 325-650/- P.M.; whereas the petitioner was placed at the initial stage of the scale of Rs. 325/-. It is no where disputed that both the respondents were getting Graduate scale of pay from 1.1.75 and 1.9.75 respectively, and they were continuing the said Graduate scale of pay since then, and the provincialisation of the school or the subsequent regularisation did not affect them adversely at any point of time. In this case, we find that the petitioner Ganesh Ch. Goswami has placed senior to the respondents solely on the ground that his service was regularised with effect from 1.10.77, whereas the services of the respondents were regularised with effect from 1.3.78. A similar contention that the seniority ought to be re-counted with reference to the date of provincialisation did not find favour in the Apex Court in the case of S.B. Patwardhan & Anr. Vs. State ofMaharastra & Ors. 1977(3) SCC 399 and the said decision was re-affirmed by the Apex Court in the case of Direct Recruit Class-II Engineering Officers' Association Vs. State of Maharastra & Ors., 1990(2) SCC 715 . In Director Recruit (Supra) the Apex Court further held that where appointment made in accordance with rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. 11. It is further submitted that the respondent was given the pay scale of a Graduate Teacher for a period of two months only, i.e. January and February, 1975. The record / Service Book of the respondent is available and it shows that from 1.1.75 the respondent is getting his Graduate scale of pay continuously and without any break. 11. It is further submitted that the respondent was given the pay scale of a Graduate Teacher for a period of two months only, i.e. January and February, 1975. The record / Service Book of the respondent is available and it shows that from 1.1.75 the respondent is getting his Graduate scale of pay continuously and without any break. The fact that the post in which the petitioner's service were regularised was retained on annual basis, that is, from year to year and that of the petitioner permanently is of no avail as the respondent can not be denied the seniority on that count. The fact remains that the respondent Dibya Pd. Nath is getting Graduate scale of pay regularly and continuously from 1.1.75 and the respondent Joya Devi is receiving the Graduate scale of pay from 1.9.77 and, on the other hand, the petitioner Ganesh Goswami got his Graduate scale of pay with effect from 1.10.77, i.e. after the respondent. In view of what has been stated above, it is held that the respondent Dibya Pd. Nath is the senior most Graduate Teacher in the Dhekial Higher Secondary School and the other respondent Joya Devi is also senior to the petitioner Ganesh Goswami. As per the interim order on this count alone Dibya Pd. Nath was allowed to continue as In-charge Principal of the School till a regular appointment is made as per the Rules and Regulations. In view of the seniority, as stated above, the above arrangement shall continue. The Civil Rule No. 3790/98 stands dismissed. The other writ petitions stand allowed. The impugned order dt. 15.5.2001 passed by Secretary Education Deptt. fixing seniority is set aside.