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2006 DIGILAW 768 (GAU)

Jiten Thakuria v. State of Assam

2006-08-18

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. The matter relates to determination of seniority between the petitioner and the respondent No. 6 with consequential benefit of promotion as Headmaster of the school in question. There is no dispute that as per the date of joining the service and subsequent granting of graduate scale of pay, the petitioner is senior to the respondent No. 6. However, his seniority has been determined and fixed below that of respondent No. 6 on ground of his transfer to the present school as per his own request. 2. The petitioner was first appointed as Graduate Mathematics teacher by Annexure-1 order dated 17.6.1978 in the school called Pallar Par High Madrassa. By Annexure-2 order dated 25.8.1998, he was transferred and posted in Howli High School in his own grade and scale of pay. In the order of transfer, it was mentioned that there should not be any claim for TA & DA. It is on this count, the respondents have contended that the transfer of the petitioner being on his request, he was not provided with TA & DA with the resultant effect that his earlier period of service would not count for seniority in the new school. The petitioner is serving in the school as an Assistant Teacher in the graduate scale of pay (Maths & Science). 3. The respondent No. 6 was first appointed on 18.2.1982 in the school called Azad, High School, Barpeta from where he was transferred to the present school namely Howli High School, Barpeta by order dated 28.11.2000. According to the respondent No. 6, since the school was provincialised with effect from 19.11.1991, his seniority should be counted from that date and since the petitioner was transferred to this school as per his own request vide Annexure-2 order dated 25.8.1998, his seniority would be counted from that date only. Be it stated here that on an earlier occasion also, the petitioner was transferred from Pallar Par High Madrassa to another school called Ruposi High School in the year 1983 from where he was transferred to the present school by the aforesaid Annexure-2 order dated 25.8.1998. 4. From the materials on record, there is no dispute that the petitioner as per the date of joining the service is senior to the respondent No. 6. In this connection the relevant dates are indicated below: 5. I have heard Mr. 4. From the materials on record, there is no dispute that the petitioner as per the date of joining the service is senior to the respondent No. 6. In this connection the relevant dates are indicated below: 5. I have heard Mr. P.K. Roy Choudhury, learned Counsel for the petitioner as well as Mr. U.K. Goswami, learned Standing Counsel, Education Department. In none of the date fixed for hearing, the learned Counsel for the respondent No. 6 appeared to argue his case. However, I have gone through the counter affidavit filed by him. I have also perused the rejoinder affidavit, filed by the petitioner. Two affidavits dated 1.8.2006 and 7.8.2006 have been filed by the respondent No. 3, i.e., the Deputy Director of Secondary Education, Assam. 6. Although, in Annexure-2 order dated 25.8.1998 transferring the petitioner from Ruposi High School to the present school, there is no mention either of the transfer being in public interest or at his own request, however, such transfer of the petitioner as per his own request has been inferred on the basis of the condition incorporated in the order, which is - "No claim for DA & TA, etc., in this respect". However, there is no dispute that the petitioner was transferred on the basis of the request made by him, but at the same time, it is nobody's case that his request for transfer was with the undertaking of foregoing past service for seniority. It is also nobody's case that, the request of the petitioner for transfer to the present school, was entertained with the pre-condition of foregoing seniority and/or acceptance of the same by the petitioner. This is precisely the reason as to why in the order of transfer, it was not indicated that the petitioner would forego his past service for the purpose of seniority and that his seniority in the transferred school would count only from the date of joining. 7. The respondent No. 6 was also transferred to the school by order dated 28.11.2000. however, his such transfer as recited in the order was in public interest. 7. The respondent No. 6 was also transferred to the school by order dated 28.11.2000. however, his such transfer as recited in the order was in public interest. It is on this score, the respondent No. 6 asserts that since his transfer to the present school was in public interest, he would carry his past service rendered in the earlier school for the purpose of seniority unlike the petitioner who would forego his past service, since his transfer was as per his own request. In the first affidavit, filed by the respondent No. 3, somewhat evasive stand was taken. In the affidavit, the respondent No. 3 has referred to Rule 24(2)(v) of the Assam Secondary Education (Provincialisation) Service Rules, 2003 in terms of which a teacher transferred on his/her own request cannot claim his/her seniority in the transferred school and the inter-se seniority of the teachers in that school will be counted from the date of joining the school. In other words the seniority is determined on the basis of the date of joining the school. 8. Since, the both the petitioner and the respondent No. 6 were appointed prior to coming into operation the aforesaid 2003 rules, a specific query was made as to whether the seniority of the existing incumbents could be determined on the basis of the new rules of 2003, which is only prospective. This aspect of the matter has been clarified in the second affidavit filed by the respondent No. 3 with the categorical statement that the Rules of 2003 is only prospective and that the earlier Rules of 1982 called Assam Secondary Education (Provincialisation) Rules, 1982, will be applicable in the instant case. A categorical statement has been made that Rule 13 of the Rules of 1982 governing the seniority would determine the seniority of the petitioner vis-a-vis the respondent No. 6. 9. The Rules of 2003 came into force on the date of its publication in the official gazette. Admittedly these Rules do not have any retrospective application. Classes and Cadres have been defined in Rule 3. Rule 3(1)(b) of the Rules incorporates Class-II (Junior) with the classification of Graduate Teacher, Hindi Teacher having bachelor degree, Classical teacher (Sanskrit/Arabic/Assamese Language Teacher) under Rule 3(1)(b)(ii). Admittedly these Rules do not have any retrospective application. Classes and Cadres have been defined in Rule 3. Rule 3(1)(b) of the Rules incorporates Class-II (Junior) with the classification of Graduate Teacher, Hindi Teacher having bachelor degree, Classical teacher (Sanskrit/Arabic/Assamese Language Teacher) under Rule 3(1)(b)(ii). Rule 24 deals with inter-se seniority of the teachers of graduate cadre in a school on the basis of the following criteria: (i) The date of continuous service in the school irrespective of graduate or post-graduate post on regular basis. (ii) The date of joining. (iii) The date of birth, position in the merit list recommended by the State Selection Board. (iv) The date of birth in case of employees holding same position in the merit list. 10. Rule 24(2)(v) speaks of determination of seniority of the teacher who had joined the new school on his own request. As per this provision, he cannot carry his earlier service for seniority and his seniority in the new school will be counted from the date of joining the school. It is on the basis of this Rule, the respondents have determined the seniority of the petitioner vis-a-vis the respondent No. 6. However, since both the incumbents were already in the cadre of graduate teacher with the determination of seniority as per the earlier Rules of 1982, this Rules of 2003 could not have been made to operate so as to have retrospective application of the same without any express provision in the Rule itself. 11. Unlike the 2003 Rules, the earlier rules called the Assam Secondary Education (Provincialised) Service Rules, 1982 never spoke of school wise seniority. Rule 3 of the Rules incorporated Graduate Teacher in Grade-IV service. Seniority was determined as per Rule 13 of the rules on the basis of the following: (a) Date of continuous appointment. (b) Date of joining. (c) Date of birth. 12. In the rules determining seniority, unlike the Rules of 2003, there was no question of determining seniority school wise, but it was always cadre wise. Thus, even if, an incumbent was transferred from one school to another as to whether at his own request or otherwise, his seniority continued to remain unaffected as per the provisions of Rule 13 of the Rules. It was the date of continuous appointment, which was the determinative factor. Thus, even if, an incumbent was transferred from one school to another as to whether at his own request or otherwise, his seniority continued to remain unaffected as per the provisions of Rule 13 of the Rules. It was the date of continuous appointment, which was the determinative factor. The date of joining as indicated in Rule 13(b) cannot be construed to mean the date of joining the new school and the same will have to be understood in the context of a total reading of Rules 3 and 13 of the Rules. Rule 13 itself did not provide for determining seniority school wise and/or foregoing past service for the purpose of seniority upon joining a new school on transfer, even if, at one's own request. This being the position, there is no escape from the factual as well as the legal position that the petitioner would carry his past service for determination of seniority irrespective of his transfer to the present school by order dated 25.8.1998. 13. There is another most vital aspect of the matter. Even assuming that as per the Rules of 1982, seniority was to be determined school wise, can it be said that in all cases of request transfer, the incumbent would forego his past service in the earlier school. The answer will be in the negative. There is nothing wrong in making a request for transfer by a school teacher. There may be very many grounds for such request, but unless one undertakes to forego his past service and/or his such request is accepted with the condition of forfeiture of the past service with the specific stipulation that, he would be entitled to count his seniority in the new school from the date of joining only, later on, he cannot be deprived of his past service towards seniority, lest it is argued that had it been made known to him, he would not have accepted such conditional transfer. 14. In the instant case, neither the records produced by the learned standing counsel containing the Annexure-2 transfer order dated 25.8.1998 nor the order itself reflect anything that the petitioner agreed for foregoing his past service towards seniority and accepted his seniority in the new school from the date of joining. The petitioner was never made to understand that upon acceptance of his request for transfer, he would forego his past service. The petitioner was never made to understand that upon acceptance of his request for transfer, he would forego his past service. No condition was imposed to that effect in the order of transfer. Merely because, there was indication in the order, that the petitioner would not be entitled to TA & DA, same cannot be indicative of forfeiture of past seniority. The seniority being a cherished and established right of an employee, same cannot be lightly interfered with in the manner and method in which the same has been in the instant case. 15. The petitioner has prayed for setting aside and quashing of the Annexures-8, 9 and 10 communications dated 30.1.2004, 26.2.2004 and 28.2.2004, by which it has been conveyed that the respondent No. 6 is the senior most teacher of the school and that upon retirement of the Headmaster of the school, he be handed over with the charge of the school. In view of the findings recorded in this judgment, none of these communications is sustainable in law and accordingly they are set aside and quashed. Any consequential order(s), if issued in the meantime, shall also stand set aside and quashed. It is hereby declared that the petitioner is senior to the respondent No. 6 and consequently, it is the petitioner, who shall be entitled to hold the charge of the post of the Headmaster of the school namely Howli High School. The official respondents shall issue necessary orders in this regard forthwith. 16. Writ petition is allowed. There shall be no order as to costs. Petition allowed.