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2004 DIGILAW 447 (GAU)

Satya Charan Biswas v. State of Assam

2004-07-23

BIPLAB KUMAR SHARMA

body2004
Judgment : B.K. Sharma, J. 1. By this writ application, the petitioner has challenged the order relating to re-fixation of seniority of the respondent No. 4 over him and consequently allowing the said respondent to hold the charge of Principal of the School in question with financial power under FR 49(C). 2. The basic facts leading to the filing of the instant writ petition are as follows: 3. The petitioner was initially appointed as Assistant Teacher on 10.8.1970 in the intermediate scale of pay. He was upgraded to the Graduate scale of pay w.e.f. 1.9.1973 as an apprentice teacher on a stipendiary post under Half-a-Million Job Programme by an order dated 1.3.1974. On 14.1.1975, the Government of Assam in the Education Department sanctioned creation of 1000 posts of Graduate teacher w.e.f. 1.1.1975 for absorption of 1000 Graduate Stipendiary Teachers under the said programme. Pursuant thereto the services of the writ petitioner was absorbed in the Graduate Cadre by an order dated 3.2.1975. Thereafter, the services of the writ petitioner was confirmed against the post held by him by an order dated 24.9.1977. 4. On the other hand the respondent No. 4 was initially appointed as Assistant Teacher in the intermediate scale of pay on 1.9.1968 in the same school in which the petitioner was appointed. He was upgraded to the Graduate scale of pay on 1.10.1977. Thus, it is the case of the writ petitioner that on the basis of the respective date of entry to the Graduate Cadre, he is senior to the respondent No. 4. Placing reliance on Rule 13 of the Assam Secondary Education (Provincialised) Services Rules, 1982 laying down the criteria of determination of inter se seniority of the existing employees in the respective Cadres providing counting of seniority from the date of continuous appointment and date of joining in a particular cadre, it is the case of the petitioner that his date of appointment in the Graduate Cadre being earlier in point of time, he is senior to the respondent No. 4. 5. The writ petitioner was allowed to hold the charge of Principal in the School in question in addition to his normal duties under FR 49(C) upon retirement of the Principal of the School and order to that affect was issued by the Director of Secondary Education, Assam on 28.2.2001. 5. The writ petitioner was allowed to hold the charge of Principal in the School in question in addition to his normal duties under FR 49(C) upon retirement of the Principal of the School and order to that affect was issued by the Director of Secondary Education, Assam on 28.2.2001. This order was put to challenge by the respondent No. 4 by filing a writ petition being W.P.(C) No. 6184/03. The writ petition was disposed of by an order dated 8.8.2003 with a direction to the Director of Secondary Education, Assam to pass a speaking order on the representation dated 10.4.2003 which was preferred by the respondent No. 4, the writ petitioner in that case. This Court provided for disposal of the representation taking into account all such norms as may be in force. 6. Pursuant to the said order of this Court, the representation of the respondent No. 4 has been disposed of by the impugned order dated 23.12.2003 holding the respondent No. 4 to be senior to the writ petitioner and allowing him to hold the charge of the Principal to the replacement of the petitioner. It is the legality and validity of the said order dated 23.12.2003 which is under challenge in this writ petition. 7. I have heard Mr. H. Roy, learned counsel appearing for the petitioner assisted by Mr. N Sinha, learned advocate. I have also heard Mr. U.K. Nair, learned Standing Counsel, Education Department appearing for the official respondents. Mr. A Sharif, learned advocate made submissions on behalf of the respondent No. 4. Mr. Roy, learned advocate for the petitioner in his usual eloquence submitted that having regard to the respective date of appointments to the Graduate Cadre, the writ petitioner is undoubtedly senior to the respondent No. 4. Placing reliance on Rule 13 of the aforesaid Rules, Mr. Roy submitted that the date of continuous appointment of the writ petitioner in the Graduate Cadre being earlier in point of time than that of the respondent No. 4, the Director of Secondary Education, Assam ought to have considered that aspect of the matter. Placing reliance on the Annexure-4, Division Bench judgment of this Court in Writ Appeal No. 98/02, he submitted that the issue is no longer res-integra and that the DSE, Assam having failed to consider that aspect of the matter, the impugned order is not sustainable. 8. Mr. Placing reliance on the Annexure-4, Division Bench judgment of this Court in Writ Appeal No. 98/02, he submitted that the issue is no longer res-integra and that the DSE, Assam having failed to consider that aspect of the matter, the impugned order is not sustainable. 8. Mr. A Sharif, learned counsel appearing for the respondent No. 4 made submissions justifying the impugned order dated 23.12.2003. However, he fairly admitted that as per the respective dates of appointment of the writ petitioner and the respondent No. 4 to the Graduate Cadre, the writ petitioner is senior to the respondent No. 4. He submitted that for the purpose of holding the current duty charge of the post of Principal in addition to the own duty as Assistant Teacher, the rules of seniority may not be strictly applied. In the same breath he also argued that as per the Govt. Notification dated 1.3.2003, the respondent No. 4 is senior to the writ petitioner. The Notification dated 1.3.2003 was issued by the Govt. of Assam in the Education Department providing seniority to the intermediate teachers having Graduate Degree in the Graduate Cadre from the date of their initial appointment in the intermediate Cadre. On the basis of the said Notification dated 1.3.2003. Mr. Sharif argued that although the writ petitioner was appointed in the intermediate scale of pay on 1.9.1968, he is entitled to count his seniority in the Graduate Cadre from the said date pursuant to the said Notification dated 1.3.2003. He finally submitted that the petitioner having been adjusted/appointed in the Graduate Cadre under Half-a-Million Job Programme, his seniority is to be counted w.e.f. 1.3.1978 in terms of the Rule 24(2)(iii) of the Assam Secondary Education (Provincialised) Service Rules, 2003. 9. Mr. U.K. Nair, learned standing counsel, Education Department during his course of argument produced a copy of the Notification dated 7.6.2004 by which the Government of Assam in the Education (Secondary) Department cancelled aforesaid Notification dated 1.3.2003. He also produced a copy of the letter dated 21.10.2003 issued by the Director of Secondary Education/Assam to all the Inspector of Schools intimating the stay of the operation of the Assam Secondary Education (Provincialised) Services Rules, 2003. He also produced a copy of the letter dated 21.10.2003 issued by the Director of Secondary Education/Assam to all the Inspector of Schools intimating the stay of the operation of the Assam Secondary Education (Provincialised) Services Rules, 2003. He fairly submitted that having regard to the factual as well as legal position involved in the case, the writ petitioner is senior to the respondent No. 4 and that the impugned order dated 23.12.2003 is not sustainable more particularly in view of the aforesaid decision of the Division Bench in Writ Appeal No. 98/02 (Shri Arun Ch. Neog v. State of Assam and Ors.). 10. I have carefully considered the rival submissions made by the learned counsel for the parties. I have also carefully gone through the materials available on records. There is no dispute that it was the writ petitioner who was entrusted with the charge of Principal in the School in question holding him to be the senior-most Assistant Teacher by order dated 28.2.2001. The order was put to challenge by the respondent No. 4 in W.P.(C) No. 6184/03 which was disposed of by this Court providing for disposal of the representation submitted by the respondent No. 4 taking into account all such norms as might be in force. The direction of this court for disposal of the representation was complied with by issuing the impugned order dated 23.12.2003. 11. It is an admitted position that before passing the said order dated 23.12.2003 and thereby adversely affecting the service condition of the petitioner, he was not put to any notice. The petitioner has been divested of his assignment as Principal by issuing the impugned order behind his back in flagrant violation of the principles of natural justice. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. It was the same very Director who had earlier declared the writ petitioner to be the senior most teacher and on that basis entrusted him the assignment of Principal in-charge, who has now issued the impugned order holding the respondent No. 4 to be senior to him without, however, putting the writ petitioner to any kind of notice. 12. It was the same very Director who had earlier declared the writ petitioner to be the senior most teacher and on that basis entrusted him the assignment of Principal in-charge, who has now issued the impugned order holding the respondent No. 4 to be senior to him without, however, putting the writ petitioner to any kind of notice. 12. The writ petition filed by the respondent No. 4 was disposed of providing disposal of representation of the respondent No. 4 without issuing any notice to the present writ petitioner although he was made a party respondent. In such a situation and in even otherwise also irrespective of any order from this Court to give hearing to the writ petitioner towards disposal of the respondent No. 4's representation, it was incumbent on the Director of Secondary Education, Assam to give a hearing to the writ petitioner before adversely effecting his service career. Unfortunately, the petitioner was not provided with any opportunity of hearing before passing the impugned order. On this score alone the impugned order is not sustainable and liable to be set aside and quashed. However, since the learned counsel for the parties extensively argued on the merit of the case, I now proceed to decide the matter on merit. 13. There is no dispute that the petitioner was appointed in the Graduate Cadre at the earlier point of time than the respondent No. 4. As against the appointment of the writ petitioner in the Graduate scale of pay w.e.f. 1.9.1973 under Half-a-Million Job Programme and regularisation thereof w.e.f, 1.1.1975, the respondent No. 4 was upgraded to the Graduate scale of pay w.e.f. 1.10.77. However, the sole basis of the claim of the respondent No. 4 for seniority over the writ petitioner is the provision of Rule 24(2)(iii) of the aforesaid Rules of 2003. Another basis for such a claim is the Notification dated 1.3.2003 which reads as follows: ORDERS BY THE GOVERNOR OF ASSAM NOTIFICATION Dated the 1st March, 2003. No. B(3)S. 39/2002/66: The Governor of Assam is pleased to notify that in respect of the Assistant Teachers with graduate degree who have worked in the intermediate scale in provincialised High Schools, Higher Secondary schools, seniority of service will be counted from the date of their joining as Asstt. No. B(3)S. 39/2002/66: The Governor of Assam is pleased to notify that in respect of the Assistant Teachers with graduate degree who have worked in the intermediate scale in provincialised High Schools, Higher Secondary schools, seniority of service will be counted from the date of their joining as Asstt. Teachers, This is subject to the condition that it will not apply to classical and Hindi Teachers, and also it has no financial implications. Sd/- P. SARAN, IAS Commissioner and Secretary to the Govt. of Assam/Education Department. 14. It has been agreed at the bar that the aforesaid Notification dated 1.3.2003 has been the subject-matter of challenge by way of initiating writ proceeding and has been under order of stay. It has also been agreed that the aforesaid Rules of 2003 are under order of stay of this Court and as communicated by the Director of Secondary Education, Assam in his aforementioned communication dated 21.10.2003. If that be so, both the grounds on which the respondent No. 4 has stacked his claim for seniority over the writ petitioner fall through. However, there is another aspect of the matter. The aforesaid Notification dated 1.3.2003 has since been cancelled by the Govt. of Assam by its Notification dated 7.6.2004 which is quoted below: ORDERS BY THE GOVERNOR OF ASSAM Notification Dated Dispur, the 7.6.2004 No. B(3)S.39/2002/73: The Governor of Assam is pleased to cancel the Government Notification No. B(3)S.39/2002/66 dated 1st March, 2003 with immediate effect. Sd/- L.N. Tamuly, IAS Secretary to the Govt. of Assam, Education Department. 15. Even if the aforesaid Rule of 2003, more particularly Rule 24(2)(ii) with which the present proceeding is concerned is stated to be in force, such a provision conferring seniority to the Graduate Teachers appointed under Haifa Million Job Programme w.e.f. 1.3.1978 is not applicable to the case in hand on two counts, viz., (i) the petitioner was appointed under the said programme in the Graduate scale of pay w.e.f. 1.9.1973 and his such appointment was regularised w.e.f. 1.1.1975. Thus, the date 1.3.1978 stipulated in Rule 24(2)(iii) of the aforesaid Rules of 2003 is not applicable to the petitioner. Secondly, the Division Bench of this Court in the aforesaid Writ Appeal No. 98/02 has clearly held that the date of regularisation in the Graduate Cadre, i.e., 1.1.1975 pertaining to the Graduate teachers appointed under Half-a-Million Programme would be the decisive factor towards counting of seniority. Secondly, the Division Bench of this Court in the aforesaid Writ Appeal No. 98/02 has clearly held that the date of regularisation in the Graduate Cadre, i.e., 1.1.1975 pertaining to the Graduate teachers appointed under Half-a-Million Programme would be the decisive factor towards counting of seniority. In that case the Division Bench held that the respondent who was also appointed under Half-a-Million Programme would get his seniority from the date of his continuous appointment in the Graduate Cadre, i.e., from 1.1-1975, with effect from which date his service was regularised. The Division Bench decided the issue by its judgment and order dated 22.7.2002. At that time the provision as contained in Rule 24(2)(iii) of the aforesaid Rules of 2003 were incorporated in the Govt. Notification dated 22.1.2001 providing counting of seniority in respect of teachers appointed under Half-a-Million Job Programme with effect from the date of regularisation of service in the Graduate Cadre w.e.f. 1.3.1978, vide Govt. letter No. ESS.70/72/468 dated 10.1.1978.'The said decision did not find favour with the Division Bench inasmuch as the services of the respondent in the Writ Appeal who was also appointed under Half a Million Job Programme like that of the writ petitioner was regularised in his service w.e.f. 1.1.1975. If there are any other teachers in the Graduate Cadre appointed under the Half-a-Million Job Programme whose services were regularised w.e.f. 1.3.1978, their seniority may be counted on the basis of the aforesaid Notification and the provision of the Rule 24(2)(iii) but certainly not in the case of the writ petitioner. Otherwise the law laid down by the Division Bench of this Court could not have been set at naught by incorporating the same very Notification under Rule 22(2)(ii) of the aforesaid Rules of 2003. 16. Dealing with the argument advanced by Mr. Sharif, learned counsel for the respondent No. 4 while conceding that the writ petitioner is senior to the respondent No. 4 in the Graduate Cadre, but for the purpose of temporary assignment of Principal in-charge, the rules of seniority may not be applied in its full vigour and that the overall seniority, may be in different cadres should be the determining factor, I am of the considered opinion that such an argument is not at all acceptable. There cannot be two sets of principle on the basis of the same very set of rule relating to the regular and temporary appointment as Principal of a School. There is no manner of doubt that the Principal of a school is appointed from amongst the teachers in the Graduate and Post Graduate cadre. Such an appointment cannot be made from amongst the teachers working in the intermediate cadre. In case of any temporary appointment or current duty charge of the post of Principal as in the instant case, rules of prudence, practice and the convention being followed, the senior most teacher in the Graduate/Post Graduate cadre should be appointed and cannot be ignored unless there is something adverse against him. 17. In the impugned order dated 23.12.2003, the Director of Secondary Education, Assam while admitting that as per the departmental rules and criteria of seniority towards promotion to the next higher post same is counted from the date of receiving the Graduate scale of pay and that the petitioner received the same at an earlier point of time than the respondent No. 4, suddenly came to the conclusion that his seniority for promotion to the next higher post would count w.e.f. 4.3.1978 without assigning any reason. It was argued on behalf of the respondent No. 4 that such assignment of seniority to the writ petitioner is on the basis of the aforesaid Notification providing counting of seniority of the Graduate teachers appointed under Half-a-Million Job Programme. The position has already been discussed above, in reference to the date of regularisation of the services of the petitioner w.e.f. 1.1.1975 and the aforesaid decision of the Division Bench. In such a situation the seniority of the writ petitioner cannot be arbitrarily counted w.e.f. 4.3.1978. 18. The position which emerges from the aforesaid narration of factual as well as legal aspect of the matter is that the writ petitioner is entitled to count his seniority in the Graduate Cadre w.e.f. 1.1.1975 as against the counting of such seniority in respect of the respondent No. 4 w.e.f. 1.10.1977. Consequently there is no manner of doubt that the writ petitioner is senior to the respondent No. 4. 19. For the foregoing reasons and discussion, the writ petition succeeds. The impugned order dated 23.12.2003 (Annexure-3) stands set aside and quashed. 20. The writ petition stands allowed. There shall be no order as to cost. Consequently there is no manner of doubt that the writ petitioner is senior to the respondent No. 4. 19. For the foregoing reasons and discussion, the writ petition succeeds. The impugned order dated 23.12.2003 (Annexure-3) stands set aside and quashed. 20. The writ petition stands allowed. There shall be no order as to cost. Petition allowed