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2005 DIGILAW 384 (GAU)

Bijoylakshmi Bardoloi v. State of Assam

2005-05-17

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard B.D. Goswami, learned Counsel for the Petitioner also heard Mrs. N.S. Thakuria, learned Counsel for the opposite party. 2. The matter related to the appointment of I/c, Principal of the Nazira Girls' H.S. School, Nazira on the retirement of Sri Budhindra Nath Barthakur, Principal I/c of the said School. A direction was given to the retiring Principal I/c of the said school Sri Budhindra Nath Barthakur to hand over the charge of the Principal to the senior most teacher of the school and the writ Petitioner Smti. Bijoy Lakshmi Bordoloi was given the charge by Mr. Borthakur. Thereafter, vide order dated 5.7.03, Mrs. D. Buragohain Gogoi, Inspector of Schools, Sibsagar was asked to look after the administrative side of the said school and vide order dated 28.7.03 Mrs. Hiranya Phukan, Respondent No. 4 was allowed to look after the academic side for smooth running of the school. The said order dated 28.7.03 has been challenged in this writ petition by Smti. B. L. Bordoloi on the ground that she is the senior most subject teacher in the said school and she had joined the said school on 29.7.75 and as such she should have been allowed to look after the academic side of the school. The case of the Respondent No. 4 Smti Hirayana Phukan is that she had joined Service on 21.9.73 and she was getting graduate scale of pay form that date and as such she is the senior most teacher of the said school and hence, the impugned order is justified. 3. In this writ petition, the claim of the Respondent No. 4 has been challenged on the ground that the Respondent No. 4 was transferred to the present school in the year 1989 and as such, she has been working there since then. Whereas, writ Petitioner has been serving as Assistant Teacher in the said school since 29.7.75 and hence, the writ Petitioner has a longer period of service in the said school. The length of service in the above school should be counted in determining seniority for giving charge of headmastership or principalship. 4. Whereas, writ Petitioner has been serving as Assistant Teacher in the said school since 29.7.75 and hence, the writ Petitioner has a longer period of service in the said school. The length of service in the above school should be counted in determining seniority for giving charge of headmastership or principalship. 4. Learned Counsel for the Petitioner places reliance on a decision of this Court in the case of Nani Bhusan Roy v. State of Assam and other, (2003) 3 GLR 446 wherein it was held that length of service in a particular school should be sole consideration for allowing a person to hold the charge of Principal or Vice-Principal provided he is otherwise eligible and is considered fit to hold the post. 5. In Nanibhusan (supra), the Respondent No. 4 being the senior most teacher in the school had requisite qualification and accordingly, she was asked to remain in charge of the post of the Headmaster of the School and this was challenged by the Petitioner on the ground that she has got better educational qualification and as such, she should have been given the charge of the office. This Court therefore, observed that higher educational qualification may be considered for giving preference for regular appointment under the Rules. But so far, the question of temporary appointment of I/c Headmaster is concerned, it is the length of the service in the school which is taken into account. 6. In the present case, we find that Respondent No. 4 was serving as Asstt. Teacher from 2.1.1973 in another school and by getting graduate scale of pay and from 19.11.1986 she was appointed as Subject Teacher in PKB Girls' School, Sonari and had joined Nazira Girls' School on 10.1.89 on transfer. Whereas, the writ Petitioner had joined the said school at a much earlier date. She was granted graduate scale of pay with effect from 29.7.1975. Thus, it is admitted that the writ Petitioner is junior to the Respondent No. 4 as the latter had joined the service earlier and she was getting graduate scale of pay from an earlier date. Hence, decision in Nanibhusan (Supra) is not applicable. 7. The second contention is that Respondent No. 4 had lost her seniority as she was transferred to this School on 18.1.89 on request. This has been disputed by the Respondent No. 4. Hence, decision in Nanibhusan (Supra) is not applicable. 7. The second contention is that Respondent No. 4 had lost her seniority as she was transferred to this School on 18.1.89 on request. This has been disputed by the Respondent No. 4. The learned Counsel for the Respondent No. 4 has produced a copy of the order of transfer to show that Respondent No. 4 was not transferred on his own request and she was transferred by the authority concerned in public interest on which Respondent No. 4 had no control and Respondent No. 4 cannot lose her seniority in service for act of the competent authority. When the writ Petitioner has alleged that the Respondent No. 4 was transferred on her own request the burden was on her but she has failed to show any document that Respondent No. 4 was transferred to the said School on her own request. Hence, we hold that Respondent No. 4 shall not lose seniority on that count. 8. The next submission of Mr. Goswami, learned Counsel for the Petitioner is that Respondent No. 4 was serving as Asstt. Teacher and was appointed as subject Teacher in other School and hence, this should be treated as fresh appointment and consequently, Respondent No. 4 will be junior to the writ Petitioner. 9. Rule 24 Sub-Clause 2 of the Assam Secondary Education (Provincialised) Service Rules, 2003 Sub-clause 1, Clause 2 of Rule 24 reads as follows: (2) Seniority for promotion to the post of Head Master/Superintendent/Assistant Head Master/Assistant Superintendent shall be determined on the following basis: (i) If an Assistant Teacher of a School is appointed as subject teacher in the said school with continuous service he/she shall get the benefit of seniority from the date of joining as Graduate Teacher in the School. 10. On bare perusal of the above rule, it shows that an Assistant Teacher on his/her appointment as Subject Teacher in the said school will get the benefit of the seniority form the date of joining as Graduate Teacher. The learned Counsel for the Petitioner has given emphasis on the words "in the said School" appearing above. The sentence does not stop/conclude "in the said School" but it continues - An Assistant Teacher become eligible for Subject Teacher cannot be denied benefit of seniority on the ground that no post available where he/she is serving. The learned Counsel for the Petitioner has given emphasis on the words "in the said School" appearing above. The sentence does not stop/conclude "in the said School" but it continues - An Assistant Teacher become eligible for Subject Teacher cannot be denied benefit of seniority on the ground that no post available where he/she is serving. Whether he/she is appointed or promoted as Subject Teacher and posted in the same school or in different School can it be said that he/she will lose that benefit of seniority for earlier period of service? The answer must be in negative. 11. So far the question of losing seniority is concerned, it provides that when a transfer is made on her own request a Teacher may lose seniority and may be placed at the lowest end in the school to which he is transferred at his own request; but, where a transfer or posting is made by the competent authority for exigency of service, the person concerned cannot be saddled with loss of seniority for obvious reasons. Mr. Goswami, learned Counsel has tried to submit that when a positive provision is made under the rules, the negative may be presumed we find no basis for such presumption. 12. This Court vide order dated 10.2.03 disposed of the case of Sri Moneswar Gogoi v. State of Assam in Writ Petition (Civil) No. 2126 with the observation that: In view of the fact that Rule 13 of the Rules, 1982, lays down that a graduate teacher's date of inter-se-seniority shall be counted with effect from the date of his/her continuous appointment, it logically follows that it is the initial date of valid appointment form which a graduate teacher's seniority has to be counted. When a graduate teacher moves, on transfer, from one school to another, he does not lose his original date of continuous appointment for the purpose of inter-se-seniority and he carries his date of seniority to the school or schools, which he may be transferred to. Thus, by the mere fact that the Petitioners have been transferred form different schools and brought to Bokakhat H.S. School, the services, which they rendered in graduate scale of pay in the earlier schools, cannot be ignored. Thus, by the mere fact that the Petitioners have been transferred form different schools and brought to Bokakhat H.S. School, the services, which they rendered in graduate scale of pay in the earlier schools, cannot be ignored. Notwithstanding, therefore, the fact that Respondent No. 5 has been working in Bokhakhat H S School for a period longer than what the Petitioners have put in, she cannot claim to be senior to the Petitioners as graduate teacher. 13. In view of the aforesaid, we find no material to interfere with the impugned order. We, however, feel that the authority concerned should initiate steps for regular appointment as adhocism in the matter of appointment to the post of Principal is not at all desirable. Writ petition stands dismissed. No costs. Petition dismissed.