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2006 DIGILAW 964 (GAU)

Abdul Matin Talukdar v. Haricharan Medhi

2006-11-03

AMITAVA ROY, MAIBAM B.K.SINGH

body2006
JUDGMENT Amttava Roy, J. 1. The judgment and order dated 26.07.2003, passed in WP(C) No. 6285/2002 and WP(C) No. 6520/2002, the former filed by the Respondent No. 1 and the later by the Appellant, constitutes the subject matter of the instant appeal. 2. We have heard Mr. F.U. Borbhuiya, learned Counsel for the Appellant, Mr. A.S. Choudhury, Senior Advocate assisted by Mr. I. Hussain, Advocate for the Respondent No. 1 and Mr. Pathak, learned Standing counsel, Education department for the official Respondents. 3. The facts in brief need reiteration for properly evaluating the competing arguments. 4. The Respondent No. 1, Sri Hari Charan Medhi having graduated in the year 1983 was appointed in Amguri Higher Secondary School as a Science teacher on 30.09.1983. The school was subsequently provincialized by order dated 28.04.1984 consequent whereupon his services along with those of other teaching and non teaching staff of the school were provincialized with effect from 01.01.1984. He was by order dated 03.09.1994 thereafter transferred to Kochudala High School. 5. The Appellant [Respondent No. 4 in WP(C) No. 6285/2002], according to the Respondent No. 1, had joined as office Assistant in the Kochudala High School on 13.05.1984. He (Appellant), however, asserted that he was appointed as Assistant teacher in the said school by order dated 25.04.1984. Accordingly, he joined the said post on 10.09.1984. His services were provincialized along with those of the other teaching and non teaching staff of Kochudala High School by order dated 16.11.1991. The service of the Appellant in particular was regularized on w.e.f. 26.11.1987. The above facts would thus reveal that whereas the Respondent No. 1 s services were regularized as Assistant teacher on 01.01.1984, it was so for the Appellant with effect from 26.11.1987. 6. By order dated 06.12.2000, the Respondent No. 1 was allowed to hold the current charge of the office of the Headmaster of Kochudala High School in addition to his own duties in terms of FR 49(c). The said arrangement was approved by the Director of Secondary Education, Assam, by his order dated 19.02.2001. By the impugned order dated 11.09.2002, passed by the same authority, the Appellant was allowed to hold the charge of the said office by canceling the order dated 19.02.2001. Being aggrieved, the Respondent No. 1 assailed the said order in WP(C) No. 6285/2002. The said arrangement was approved by the Director of Secondary Education, Assam, by his order dated 19.02.2001. By the impugned order dated 11.09.2002, passed by the same authority, the Appellant was allowed to hold the charge of the said office by canceling the order dated 19.02.2001. Being aggrieved, the Respondent No. 1 assailed the said order in WP(C) No. 6285/2002. The Appellant also approached this Court with WP(C) No. 6520/2002 for a writ of mandamus to implement the said order. 7. In their pleadings in substance, the Respondent No. 1 has asserted that as he was senior to the Appellant in service, he was entitled to hold the current charge of the office of the Headmaster of Kachudala High School and that therefore, the order dated 11.09.2002 was illegal, arbitrary and non est in law. The Appellant, however, asserted that as the Respondent No. 1 had been transferred from his school namely Amguri Higher Secondary school to Kachudala High School on his own request and not in public interest, he was not entitled to the seniority based on his services in the earlier institution and therefore was junior to him (Appellant) in the transferred school and consequently, the impugned action could not be faulted with. 8. The Deputy Director of Secondary Education, Assam, Guwahati in his affidavit filed in WP(C) No. 6285/2002 sought to endorse the impugned action by contending that the Respondent No. 1 had been erroneously allowed to hold the current charge of the office of the Headmaster of Kochudala High School by order dated 19.02.2001 as at the relevant time his seniority was not correctly computed. According to the answering Respondent, the Respondent No. 1 was transferred from Amguri Higher Secondary school to Kochudala High School by order dated 03.09.1994 of the Inspector of Schools, Bongaigaon District Circle, Bongaigaon without allowing TA/DA for which the same was treated to be one on his own request in terms of the criteria to the said effect as contained in the document dated 30.08.2001. It was asserted that resultantly, the Respondent No. 1 was not entitled to the seniority on the basis of his past services in Amguri Higher Secondary School and he having joined Kochudala High School on 07.09.1994, his seniority in the said school was to be reckoned from that date. It was asserted that resultantly, the Respondent No. 1 was not entitled to the seniority on the basis of his past services in Amguri Higher Secondary School and he having joined Kochudala High School on 07.09.1994, his seniority in the said school was to be reckoned from that date. It was maintained that the Appellant who had joined the Kochudala High School on 10.09.1984 and whose service was regularised on 26.11.1987 was thus senior to the Respondent No. 1. 9. The learned Single Judge on a consideration of the pleadings of the parties and the arguments advanced while accepting on principle that in terms of the criteria referred to in the Deputy Director's counter that an incumbent on being transferred from one school to the other on his own request would lose his seniority, returned a finding that the materials on record did not unerringly establish that in the case in hand, the Respondent No. 1 had been transferred from Amguri Higher Secondary School to Kochudala High School on his own request. The learned Single Judge recorded amongst Ors. that neither the transfer order dated 03.09.1994 indicated anything to the said effect, nor the official records had been produced to support the said stand of the official Respondents. He was of the view that on the basis of the recorded facts, the inference that the Respondent No. 1 had been transferred on his own request was not possible. Noticing that the official Respondents had not questioned the longer tenure of service of the Respondent No. 1, the learned/single Judge interfered with the order dated 11.09.2002 being of the opinion mat the very basis thereof was non existent. In the result, the Writ petition (C) No. 6285/2002 was allowed and the WP(C) No. 6520/2002 was dismissed. 10. Though the instant appeal was admitted on 06.02.2004, no interim order was passed staying the operation of the decision challenged before us. It is submitted at the Bar that the Respondent No. 1 continues to be in charge of the office of the Headmaster of Kochudala High School as on date. 11. Mr. 10. Though the instant appeal was admitted on 06.02.2004, no interim order was passed staying the operation of the decision challenged before us. It is submitted at the Bar that the Respondent No. 1 continues to be in charge of the office of the Headmaster of Kochudala High School as on date. 11. Mr. Borbhuiya has assertively argued that it being manifest from the counter of the official Respondents that the Respondent No. 1 had been transferred from Amguri Higher Secondary school to Kochudala High School on his own request, in terms of the government decision contained in the document dated 30.08.2001, his seniority computable on the basis of his services rendered in the earlier school could not have been reckoned for choosing him to hold the current charge of the office of the Headmaster of Kochudala High School. The Respondent No. 1 having lost his seniority on such transfer, he was evidently junior to the Appellant and therefore, the impugned order dated 11.09.2002 was unassailable. The learned Counsel contended that the learned Single Judge having accepted the guideline specified in the document dated 30.08.2001, the same ought to have been applied in the facts of the instant case and that the failure to do so has vitiated the impugned judgment and order warranting interference in the instant appeal. 12. Mr. Choudhury in reply, has urged that the guideline referred to in the affidavit of the official Respondents as contained in the document dated 30.08.2001, is of no consequence as in the instant case the transfer of the Respondent No. 1 was effected on 03.09.1994. He maintained that the materials on record did not establish that the Respondent No. 1 had been transferred to Kochudala High School on his own request and that he being admittedly senior to the Appellant in service, the learned Single Judge rightly interfered with the order dated 11.09.2002. Mr. Choudhury asserted that in fact the Respondent No. 1 had been transferred to Kochudala High School in public interest and not on his own request. 13. Mr. Pathak, while endorsing the contentions raised on behalf of the Respondent No. 1 has apprised this Court that stipulation of loss of seniority of an incumbent seeking transfer on his own request has since been incorporated in the Assam Secondary (Provincialisation) Service Rules, 2003. 13. Mr. Pathak, while endorsing the contentions raised on behalf of the Respondent No. 1 has apprised this Court that stipulation of loss of seniority of an incumbent seeking transfer on his own request has since been incorporated in the Assam Secondary (Provincialisation) Service Rules, 2003. The learned Standing counsel was fair enough to submit that in law, the related provision was to be given a prospective effect. 14. On a careful consideration of the rival submissions and upon close perusal of the materials on record, we are inclined to sustain the findings of the learned Singled Judge. From the materials on record, it is not possible to conclude that the view taken by the learned Single Judge on the aspect of the seniority on transfer is either opposed to the facts available or any fundamental principle of law. Evidently, the Respondent No. 1 in the instant case had been transferred on 03.09.1994, a date on which the document dated 30.08.2001 was not in existence. The principle contained therein vis-a-vis loss of seniority on transfer being in the form of an administrative decision cannot be given a retrospective effect. The 2003 Rules in which the said norm was engrafted also does not provide any indication to the said effect. We thus do not feel persuaded by the facts to hold that only because the transfer order did not sanction TA/DA to the Respondent No. 1, the irresistible conclusion ought to be that the same was on his personal request and not in public interest or administrative exigency. The omission to mention about public interest or administrative exigency in the order per se would not render the resultant transfer to be one on the request of the incumbent transferred. 15. In view of the above, we are of the considered opinion that the impugned judgment and order does not suffer from any infirmity warranting interference in the appeal. The findings are based on facts available on records and cannot be termed to be perverse or erroneous in any view of the matter. The appeal being without any merit therefore is dismissed. No costs. Appeal dismissed