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2003 DIGILAW 225 (GAU)

Baharul Islam v. State of Assam

2003-05-23

AFTAB H.SAIKIA, I.A.ANSARI

body2003
JUDGMENT A.H. Saikia, J. 1. Heard Mr. A. Samad Choudhury, learned Sr. Counsel assisted by Mr. I. Hussain, learned Counsel for the Appellant. Also heard Mr. A.B. Choudhury, learned Counsel appearing on behalf of the private Respondent No. 4 and Mr. A. Thakur, learned State Counsel appearing for the Respondents No. 1 to 3. 2. On consent of the learned Counsel for the parties, this writ appeal is taken up today itself for final disposal instead of adjudicating upon the Misc. case being MC No. 31/03 filed by the private Respondent No. 4 for vacation/modification of the interim order passed on 21.1.03 in this writ appeal by which this writ appellate Court directed to maintain the status quo as on that date i.e., 21.1.03. 3. This writ appeal has been carried from an order dated 10.10.02 rendered in Misc. Case No. 670/02 arising out of WP (c) No. 2495/02 by the learned Single Judge vacating the interim order passed on 24.4.02. 4. The Appellant's case briefly stated, is that by the order dated 18.4.02 which has been under challenge in this related writ petition, the Private Respondent No. 4 was allowed to hold the charge of Headmaster of the school in question showing him to be the senior most Asstt. Teacher therein ignoring the claim of the Appellant who was earlier directed by the competent authority to hold the charge of Headmaster in the said School considering his seniority. The learned Single Judge while issuing notice of motion in the related writ petition preferred by the writ Petitioner-Appellant, by order dated 24.04.02 has ordered as "As the Petitioner claims to be holding charge let a status quo be maintained till Friday." Feeling aggrieved by the said interim order, the Respondent No. 4 preferred the Misc. Case being MC No. 670/02 for vacation of the said order. The learned Single Judge upon hearing learned Counsel for the parties and taking into account factual position of the case vacated the interim order by the impugned order dated 10.10.02. The learned Single Judge in vacating the interim order has observed that there was no dispute as regard to the fact that the Respondent No. 4 joined the school in question on 10.02.71 when the Appellant joined therein on 1.6.73. It is also reflected that at the time of joining the school both the Appellant and the Respondent No. 4 were undergraduate. It is also reflected that at the time of joining the school both the Appellant and the Respondent No. 4 were undergraduate. The school was provincialised on 1.1.84 and from the said date of provincialisation both the persons were given graduate scale of pay. But the claim of the Appellant is that since he passed the BA examination in the year 1973 when the private Respondent No. 4 passed the said examination after one year i.e., in the year 1974, he is senior to the Respondent No. 4. On the other hand, the stand of Respondent No. 4 is that as graduate scale of pay was granted to both of them on the same day, he having joined the school earlier to the Appellant, should be considered senior to the Appellant. The learned Single Judge has held that prima facie requirement of seniority is either the date of entry into service in the school or the date of getting Graduate scale of pay. When the Graduate scale of pay was granted on the same day to both the persons, the earlier date of passing BA examination becomes irrelevant and the date of entry would be counted. On careful perusal of the impugned order we unhesitatingly concur with the view expressed by the learned Single Judge. 5. Mr. A.S Choudhury, learned Sr. Counsel, challenging the application for vacation of interim order, has strenuously argued that vide communication dated 17.4.84 (Annexure-3 to the writ appeal) the Appellant's name was shown at SI. No. 1 considering his graduation obtained in 1973 and the Respondent No. 4 was placed at SI. No. 2 as he passed the BA examination in the year 1974 and accordingly he was shown to be senior in the said communication. The learned Counsel for the Appellant has also relied on Anr. communication dated 3.8.81 (Annexure-11 to the writ appeal) wherein laying down the criteria for promotion to the Asstt. Headmaster and for upgradation of Asstt. Teacher to Graduate scale of pay, it was provided that the period of service rendered as undergraduate 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 person may be considered for promotion. Teacher to Graduate scale of pay, it was provided that the period of service rendered as undergraduate 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 person may be considered for promotion. His submission is that as per this instruction the date of joining of the Respondent No. 4 should not be counted as at the relevant time he was holding the intermediate post and the seniority should be counted from the date of graduation. Accordingly the Appellant is senior to Respondent No. 4 who graduated after one year of the Appellant's graduation. 6. Relying on the decisions of the Apex Court in (i) H.V. Pardasani and Ors. v. Union of India and Ors. reported in (1985) 2 SCC 468 and (ii) Sudama Singh v. Nath Saran Singh and Ors. reported in (1988) 1 SCC 57 , Mr. A.S. Choudhury learned Sr. Counsel, has in his second limb of argument, contended that as both the Appellant and the Respondent No. 4 were given their graduate scale of pay on 1.1.84 on provincialisation of the school, the seniority shall be determined on the basis of age. According to him, the date of birth of the Appellant was 28.12.51 while 1.1.52 was the date of birth of Respondent No. 4. Hence viewing from this angle and also applying the ratio of above cited cases, the Appellant is senior. 7. We have carefully gone through the documents as alluded above and also the proposition of law laid down in the above judicial pronouncements. It is seen that the communication dated 17.4.84 does not reflect the seniority position of the Appellant vis-a-vis the Respondent No. 4 but it clearly shows that the date of appointment of the Appellant as well as the Respondent No. 4 as 1.6.73 and 10.02.73 respectively. Insofar as guidelines dated 3.8.81 is concerned, no where it is mentioned that the criteria for promotion would be the age if the graduate scale is paid on the same day. The said instruction categorically provides that the seniority should be fixed taking into consideration only the period of service rendered in Graduate scale of pay. Concededly it is not the case of the parties that they were given the Graduate scale on different dates. The said instruction categorically provides that the seniority should be fixed taking into consideration only the period of service rendered in Graduate scale of pay. Concededly it is not the case of the parties that they were given the Graduate scale on different dates. Both the persons were giver the Graduate scale on 1.1.84 but it is apparent on the face of the record that the Respondent No. 4 was appointed on 10.2.71 and the Appellant was appointed on 1.6.73. Having regard to the above cited judicial decisions and on consideration of the facts and circumstances of the case in its entirety, the proposition of law laid down in the above cited cases, in our humble opinion, has no applicability in the instant case. Accordingly, we fully agree with the view expressed by the learned Single Judge. The age cannot be the criteria for determination of the seniority when the Graduate scale was paid to both the persons on the same date. It is the date of joining which always holds the field for determination of the seniority. The age factor will come only when two or more persons are appointed on the same date as ruled by the Apex Court in the cases cited above. The being so, we disinclined to upset the impugned order. It is made clear that any observation rendered in this order shall not come on the way in deciding the matter finally by the learned Single Judge on merit. 8. In the result, this Writ appeal fails. Interim order passed earlier shall stand vacated. Appeal dismissed.