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2008 DIGILAW 31 (GAU)

Ashok Kumar Roy v. State of Assam

2008-01-10

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The arrangement whereby respondent No. 5 has been permitted to hold the charge of the Office of the Headmaster/Headmistress of Ram Krishna Vidyapeeth M.E. School, District Nagaon has been assailed in the instant petition. 2. I have heard Mr. A.S. Choudhury, Senior Advocate assisted by Mr. R. Ali, Advocate for the petitioner, and Mr. M.K. Mishra, learned standing counsel for the Education Department and Mr. S. Dutta, learned Counsel for respondent No. 5. 3. The petitioner's case in short is that he is a graduate in Arts and was appointed as Addl. Asstt. Teacher in the Ram Krishna Vidyapeeth M.E. School (hereinafter referred to as "the School") on 1.3.83 and his service was regularized by order dt. 1.3.93. The respondent No. 5 joined the school on transfer at her request on 20.10.04. The Headmaster of the school had retired on superannuation on 31.12.06. The District Elementary Education Officer, Nagaon by his order dt. 16.2.07 permitted the petitioner to hold the charge of the office of the Headmaster of the School for a period of three months w.e.f. 1.1.07. The term was thereafter extended by another three months. While the petitioner was discharging his duties in the said office, by the impugned order dt. 12.7.07 the respondent No. 3 allowed the respondent No. 5 to take over charge thereof. Though the initial term was for three months w.e.f. 1.7.07, by order dt. 2.11.07 it was extended until further orders. Contending that he is senior to respondent No. 5 in service, the petitioner has impugned the order permitting the respondent No. 5 to take the charge of the Office of the Headmaster of the School. 4. The respondent No. 2 Director of Elementary Education in substance has contended that as the petitioner was appointed on 28.9.93, by giving effect from 1.3.93 and the services of respondent No. 5 was provincialised w.e.f. 19.11.91 she was senior to him. Moreover, as the respondent No. 5 has been transferred to the school from another institution, both located in the same sub-division, the same did not render her (respondent No. 5) ineligible to count her past services for reckoning her seniority for the inchargeship for the Office of Headmaster/Headmistress in the Ram Krishna Vidyapeeth M.E. School. 5. The respondent No. 5 has supplemented the above stand by contending that not only the respondent No. 2 by his order dt. 5. The respondent No. 5 has supplemented the above stand by contending that not only the respondent No. 2 by his order dt. 13.8.07 held her to be senior to the petitioner, she, in the meantime, has been selected for regular promotion as Headmaster/Headmistress and, therefore, she has been rightly chosen to hold the charge of the said office in preference to the petitioner. 6. Mr. Choudhury while reiterating the pleaded stand of the petitioner has argued that school seniority being the deciding criteria to appoint a teacher to hold the charge of the Office of the Headmaster/Headmistress, the Respondent No. 5, who is obviously junior to the petitioner, could not have been favoured for such recognition. As admittedly, judged by the length of service, the petitioner is senior to respondent No. 5, the impugned order is illegal and unsustainable in law. Moreover, as the respondent No. 5 admittedly has come on transfer to the school on her request, her seniority for the purpose of inchargeship has to be counted from the date of her joining the school and therefore on that count as well she could not have been preferred over the petitioner. The learned senior counsel termed the findings of respondent No. 3, as contained in the letter dt. 13.8.07 (Annexure-9 to the Addl. Affidavit filed by the petitioner) to be perverse and also questioned the authenticity of the select list (Annexure-10 to the Addl. Affidavit filed by the petitioner) reflecting the name of respondent No. 5 as one of the selectees for regular promotion to the post of Headmaster/Headmistress. In support of his contentions Mr. Choudhury has placed reliance on the decision of the Apex Court in the case of K.P. Sudhakaran v. State of Kerala reported in AIR 2006 SC 2138 and of this Court in Rais Uddin v. State of Assam and Ors. reported in 2002(1) GLT 216. 7. Mr. Misra, learned standing counsel while abiding by the pleaded stand of the respondent No. 2 and the contents of the letter dt. 13.8.07 of the District Elementary Education Officer, Nagaon has submitted that the respondent No. 5 being senior to the petitioner she was rightly identified to hold the charge of the Office of the Head Master/Head Mistress. 7. Mr. Misra, learned standing counsel while abiding by the pleaded stand of the respondent No. 2 and the contents of the letter dt. 13.8.07 of the District Elementary Education Officer, Nagaon has submitted that the respondent No. 5 being senior to the petitioner she was rightly identified to hold the charge of the Office of the Head Master/Head Mistress. The learned Counsel contended that the petitioner's services for the purpose of seniority is countable from 1.3.93 and his claim of seniority on the basis of the service rendered from 1.3.83 is misconceived. According to him the school has been provincialised w.e.f. 1.3.93 and thus the petitioner's services prior thereto is of no consequence for determining his seniority. Mr. Misra also produced the relevant records in support of the above submissions. 8. Mr. Dutta has urged that apart from the fact that in terms of the Assam Elementary Education (Provincialisation) Act, 1974 (hereinafter referred to as "the Act"), the petitioner is junior to respondent No. 5, the latter having been selected for regular promotion to the post of Head Master/Head Mistress of the school she is undoubtedly entitled to some weightage and preference for being allowed the incharge duties of the said office. Mr. Dutta placed reliance on the decision of this Court in the case of Jagannath Pegu v. State of Assam and Ors. 9. The rival pleadings and the arguments advanced have received the due consideration of this Court. It is not in dispute that the prime consideration for choosing an incumbent to be the incharge Head Master/Head Mistress of a school is the school seniority. The learned standing counsel, Education Department has confirmed this norm. Even if the petitioner's services are provincialised with effect from 1.3.93, the respondent No. 5 having joined the school on 20.10.04 her seniority in the said institution is countable from that day. The Director of Elementary Education, Assam in his order dt. 13.8.07 has observed that the transfer of respondent No. 5 to the school is of no consequence, as the school from where she had been transferred is located in the same sub division and thus on the basis of the sub divisional seniority she would stand senior to the petitioner. The Director of Elementary Education, Assam in his order dt. 13.8.07 has observed that the transfer of respondent No. 5 to the school is of no consequence, as the school from where she had been transferred is located in the same sub division and thus on the basis of the sub divisional seniority she would stand senior to the petitioner. While this may be applicable for teachers of the schools situated within the territorial limits of the same sub-dvn., for regular promotions, if the transfer of the incumbent from one school to other is on his/her request, his/her seniority in the school where he/she is transferred will be reckonable from the date of joining the school to which he/she has been transferred for the purpose of determining the school seniority for identifying the teacher to hold the charge of the Office of Head Master/Head Mistress unless he/she is otherwise adjudged to be unfit for the purpose. Noticeably the District Elementary Education Officer, while determining the respondent No. 5 to be senior to the petitioner disregarded the fact that the former had been transferred to the school on her own request. The records produced also do not indicate that this aspect of the matter was taken a note of by the District Elementary Officer, Nagaon. 10. This assumes importance in view of the decision of this Court in Rais Uddin (supra) wherein it has been held that whenever a person is transferred on his own request from one school to another, he loses his seniority of that school and in such a case the transferee teacher does not carry his seniority of the earlier school. The facts involved therein demonstrate that a teacher of another school was allowed to hold the charge of the Office of the Head Master of the Charanadiapara M.E. Madrassa on being transferred at his own request. Negating the contention of the private respondent that such a proposition was not tenable in absence of any provision to the effect in the existing Rules this Court observed that such a contention if accepted, teachers would be on a fishing expedition to find out where they would become seniormost and thereby earn eligibility for consideration for the post of Head Master. The challenge to the appointment of the private respondent as incharge Head Master of the aforenamed Madrassa was upheld. 11. The Apex Court in K.P. Sudhakaran and Anr. The challenge to the appointment of the private respondent as incharge Head Master of the aforenamed Madrassa was upheld. 11. The Apex Court in K.P. Sudhakaran and Anr. (supra) held that in service jurisprudence, the general rule is that if a Govt. servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Govt. servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer and will be placed at the bottom below the juniormost employee in the category in the new cadre or department. Their Lordships held that this was because a Govt. servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the deptt. from which he has been transferred, should be taken into account. Noticeably the above observations were general in nature and uniformly applicable to all fact situations, in absence of any specific provision to the contrary. Attention of this Court has not been drawn to any provision inconsistent with the above proposition. In that view of the matter the respondent No. 5 in terms of school seniority in Ram Krishna Vidyapeeth M.E. School has to be adjudged junior to the petitioner. 12. There is no material on record to hold that the petitioner is otherwise ineligible to be considered for regular promotion to the post of Head Master/Head Mistress in any M.E. School. The fact of selection on respondent No. 5 for promotion to the post of Headmaster/Headmistress for the present is not substantiated by any unimpeachable evidence. For obvious reasons this Court is disinclined to dilate on this issue any further, In any view of the matter, having regard to the fact that the issue relates to inchargeship of the Office of the Headmaster of the School, the claim of respondent No. 5 on the basis thereof does not improve her case. 13. For obvious reasons this Court is disinclined to dilate on this issue any further, In any view of the matter, having regard to the fact that the issue relates to inchargeship of the Office of the Headmaster of the School, the claim of respondent No. 5 on the basis thereof does not improve her case. 13. The decision of this Court in Jagannath Pegu (supra) is also of no consequence to her as in that case the appointment of respondent No. 4 as incharge of the Office of the Head Master of Karatipar High School, Majuli was interfered with as in terms of the Rules applicable she was ascertained to be ineligible. Moreover, she having been transferred to the aforementioned school on her own request was determined to be junior to the petitioner. 14. In the above view of the matter and judged by school seniority, the petitioner is senior to respondent No. 5. In my considered opinion, therefore, he could not have been overlooked in preference to her (respondent No. 5) for the inchargeship of the Office of the Head Master/Head Mistress of the School involved. The claim of the respondent No. 5 to the post, on the basis of her claim of selection for regular promotion thereof, which is denounced by the petitioner, having regard to the limited purpose of comparative suitability for holding the post of Head Master of the School on incharge basis, is not construed to be of any definitive relevance. There being no semblance of any assertion that the petitioner is unfit or ineligible to be considered for promotion to the post of Head Master/Head Mistress on regular basis and in view of accepted parameter of school seniority to be the dominating criteria to adjudge the entitlement for holding the Office of the Head Master/Head Mistress on incharge basis, the impugned orders are not sustainable in law and are, therefore, interfered with. The orders dt. 12.7.07, 26.10.07 and 2.11.07 passed by the District Elementary Education Officer, Nagaon and the impugned proceeding are hereby set aside. The petition in the result is allowed. No costs. Petition allowed