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2008 DIGILAW 513 (GAU)

Chakreswar Das v. State of Assam

2008-07-21

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The writ jurisdiction of this Court is sought to be invoked to interfere with the order dated 20.9.2007 passed by the Director of Secondary Education, Assam, installing the respondent No. 4 as the in-charge Principal of Sonaram Higher Secondary School, Guwahati (hereafter referred to as the School) in addition to her normal duties. 2. I have heard Mr. N. Dutta, Sr. Advocate assisted by Mr. M. Bhagawati, Advocate for the petitioner, Mr. M.K. Mishra, learned Standing Counsel, Education Department for the official respondents and Mr. P.P. Baruah, learned Counsel for the respondent No. 4. 3. The abbreviated version of the petitioner's pleaded case is that having been appointed as a teacher in the School, he joined on 1.8.1973. He is a Post Graduate in Arts and has also acquired the B. Ed. Degree. He is presently serving as a subject teacher in the School. In the year 2006 when the in-charge Principal thereof was placed under suspension, he was entrusted with the responsibility of administering the academic affairs of the School. Thus for all practical purposes he was then acknowledged as the Principal (Academic) of the School. In the seniority list submitted by the outgoing Principal of the School on 28.2.2007, he was shown to be the senior most amongst the teachers thereof. As inspite of his seniority, he was not appointed as the Principal of the School sensing something ominous on political interventions, he approached this Court. At that stage, according to him, he was not aware of the impugned order. However, having come across the same, subsequent thereto, he has impugned it. 4. The petitioner has asserted that in the aforementioned seniority list, the respondent No. 4 is placed at SI. No. 9 and has not been called to participate in the process for selection of Principal in terms of Rule 13 of the Assam Secondary Education (Provincialised) Service Rules, 2003 (hereafter referred to as the 2003 Rules). Further the said respondent joined the School on 26.12.1985. The petitioner has admitted that the said respondent is also a Post Graduate in Arts. 5. The Director of Secondary Education, Assam, the respondent No. 2 in his affidavit while admitting the petitioner's appointment as Assistant Teacher in the School w.e.f. 1.8.1973 in the entry scale has averred that he was accorded the Post Graduate Scale of pay w.e.f. 1.8.1987. The petitioner has admitted that the said respondent is also a Post Graduate in Arts. 5. The Director of Secondary Education, Assam, the respondent No. 2 in his affidavit while admitting the petitioner's appointment as Assistant Teacher in the School w.e.f. 1.8.1973 in the entry scale has averred that he was accorded the Post Graduate Scale of pay w.e.f. 1.8.1987. The deponent denied the petitioner's claim of having been allowed to hold the charge of the office of the Principal of the School earlier. His claim to be the senior most teacher of the institution was also denied. Instead the respondent No. 4 was asserted to be the senior most subject teacher of the School having been accorded the Post Graduate Said of pay w.e.f. 26.12.1985. The answering respondent clarified that the said respondent infact had been assigned the said scale w.e.f. 3.4.1985 when she was posted in another School. The impugned order was thus endorsed to be valid for having allowed the respondent No. 4 the senior most teacher of the School to administer the office of the Principal thereof. 6. The respondent No. 4 in her counter while contending that she had been appointed as the subject teacher of the Kahibari H.S. School on 3.4.1985 and eventually transferred to the School on 26.12.1985 affirmed of having been accorded the Post Graduate School of pay w.e.f. 3.4.1985. While claiming herself to be the senior most subject teacher of the School, she asserted that in compliance of the impugned order, she had joined her duties as the Principal in-charge thereof w.e.f. 21.9.2006 and has been discharging her duties since then. She categorically refuted the petitioner's claim of being the senior most teacher of the School. She has reinforced the stand of the respondent No. 2 on the basis of the dates of receipt of Post Graduate scale of pay to her and the petitioner. She also referred to a seniority list approved by the Assistant Inspector of Schools, Kamrup District Circle, Kamrup, wherein the petitioner was placed at SI. No.7 and she at SI. No.1. 7. The learned Sr. She also referred to a seniority list approved by the Assistant Inspector of Schools, Kamrup District Circle, Kamrup, wherein the petitioner was placed at SI. No.7 and she at SI. No.1. 7. The learned Sr. Counsel for the petitioner has argued that in absence of any provision in the Rules prescribing the procedure for selecting a teacher to be the in-charge Principal of the School governed thereby as well as for determining the seniority therefore the total length of service ought to the decisive determinant and judged by that criteria the petitioner is indubitably senior to the respondent No. 4. The issue being one pertaining to a temporary arrangement for the office of the Principal of the School on in-charge basis, Rule 13 ordaining the procedure for selection of regular incumbent thereto is irrelevant, he urged. Mr. Dutta, however, admitted that the notification dated 1.3.2003 stipulating computation of seniority of an Assistant Teacher with Graduate Degree who had worked in the intermediate scale in the Provincialised Schools/Higher Secondary Schools from the date of his joining as Assistant Teacher stands cancelled. He, therefore, contended that in absence of any administrative guidelines on the subject and prior determination of superior seniority of respondent No. 4 over the petitioner in terms of the Assam Secondary Education (Provincialisation) Service Rules, 1982 (hereafter referred to as the 1982 Rules), the impugned order lacks the backing of any law and is liable to be adjudged arbitrary, illogical and nonest. While pointing out that the 1982 Rules stands repealed by the Assam Secondary Education (Provincialisation) Service Rules, 2003, the learned Sr. Counsel has urged that in absence of any provision in the 2003 Rules corresponding to those in the 1982 Rules, decision even if taken under the prior Rules would cease to subsist in the face of Rule 32 of the 2003 Rules. There being no legal precept or executive instructions prescribing the mode of computation of seniority, Mr. Dutta argued that it is the School seniority on the basis of continuous service that should determine the same. 8. There being no legal precept or executive instructions prescribing the mode of computation of seniority, Mr. Dutta argued that it is the School seniority on the basis of continuous service that should determine the same. 8. The learned Standing Counsel, Education Department while conceding that the 2001, Rules do not provide any guidelines in the matter of selection of a teacher for in-charge Principal of a School covered thereby, has argued by referring to Rule 12 thereof that judged by the prescribed conditions of eligibility for promotion to the post of Principal, seniority in the cadre of Post Graduate Teacher or Graduate Teacher in the Higher Secondary/Higher Secondary and Multi Purpose School is the decisive norm. As the respondent No. 4 is senior to the petitioner in the Post Graduate cadre she having been provided with the scale therefore earlier, the impugned order is valid and in consonance with the letter and spirit of the 2003 Rules. The posts of Post Graduate Teacher and Graduate Teacher being the feeder posts for promotion to that of Principal of the College, the determination of seniority of the respondent No. 4 over the petitioner in the facts and circumstances of the case cannot be faulted with. 9. Mr. Baruah while endorsing the arguments advanced on behalf of the official respondents insisted that as the petitioner was not a Graduate Teacher at his induction in service, the determination of inter-se seniority on the basis of the length of service of the parties reckoned from the date of receipt of Post Graduate Scale of pay is in harmony with the prescriptions of the 2003 Rules pertaining to selection for promotion to the post of Principal and, therefore, no interference with the impugned order is warranted. To sustain his arguments, Mr. Baruah has placed reliance on a decision of this Court in Satya Charan Biswas v. State of Assam and Ors. 2004 (Suppl.) GLT 808 : (2005) 3 GLR 275. 10. The learned Sr. Counsel for the petitioner in reply maintained that the ratio of the decision in Satya Charan Biswas is contra to the one in Sujit Paul v. State of Assam and Ors. enjoining School seniority to be the basis for selecting a teacher for the Office of Principal on in-charge basis. 10. The learned Sr. Counsel for the petitioner in reply maintained that the ratio of the decision in Satya Charan Biswas is contra to the one in Sujit Paul v. State of Assam and Ors. enjoining School seniority to be the basis for selecting a teacher for the Office of Principal on in-charge basis. In the alternative, he urged that if the conditions of eligibility for the post of Principal are to be insisted upon also for the in-charge arrangement, the procedure for regular promotion as laid down in Rule 13 of the Rules has to be necessarily complied with. As admittedly no such exercise had been undertaken, the impugned order being in violation of the 2003 Rules is liable to be adjudged ineffectual, null and void, he urged. 11. That the respondent No. 4 leads the petitioner on the date of grant of Post Graduate Scale of pay is a matter of record. The pleadings are conspicuously silent about the date on which the graduate scale of pay to the petitioner had been accorded, if any. The petitioner as well has omitted to mention anything about it. The seniority list of the teachers of the school produced before this Court does not disclose any indication to that effect. The date of induction of the petitioner as a graduate teacher in the intermediate scale of pay is 1.8.1973. The date of joining of the respondent No. 4 in service is 3.4.1985 whereafter on transfer she has joined the School on 26.12.1985 and had been awarded the post graduate scale of pay from the date of initial entry (3.4.1985). The petitioner started receiving the same scale of pay w.e.f. 1.8.1987. The 2003 Rules governing the parties demonstrate that the post of Post Graduate and Graduate teachers are included respectively in Class-H (Sr.) and Class-H (Junior) Cadre of the Assam Secondary Education (Provincialised) Service. The post of Principal in H. S./H. S. and Multipurpose School, as the said Rules provide is to be filled up only by direct recruitment. The conditions of eligibility are laid down in Rule 12 (d) and the procedure is elaborated in the Rule 13. No provision is discernible in the Rules prescribing the mode of ascertainment of seniority of graduate or a post graduate teacher for the purpose of elevation to the post of Principal. The conditions of eligibility are laid down in Rule 12 (d) and the procedure is elaborated in the Rule 13. No provision is discernible in the Rules prescribing the mode of ascertainment of seniority of graduate or a post graduate teacher for the purpose of elevation to the post of Principal. This is presumably as the said post is not a promotional one vis-a-vis that of a post graduate or graduate teacher thereunder. Rule 12 (d), however, unequivocally proclaims that a postgraduate as well as a graduate teacher with the stipulated lengths of teaching experience as mentioned therein are both eligible for being considered for direct recruitment for the post of Principal of H.S./H.S. Multipurpose School. No provision in the Rules has been made laying down the norms for adjudging the suitability of such teachers for in-charge Principalship of these schools. According to the Official respondents, seniority of the competing candidates in the graduate or the postgraduate levels is, therefore, acted upon as the yardstick for such a temporary arrangement. 12. As alluded hereinabove, the post of postgraduate teacher is a feeder post for direct recruitment as the Principal. In absence of any provision in the Rules or administrative instructions to the contrary, inter-se seniority in the said post where there is no other contending, graduate teacher also vying for the office of the Principal, cannot per se be dismissed as irrational or illogical. The concept of school seniority generally applied for the incharge arrangement can by no means be divorced from the prescriptions of eligibility enjoined by the Rules governing the parties. The exercise for in charge Principalship cannot in any view of the matter be wholly akin to the procedure imperatively observable for direct recruitment to the post of Principal on regular basis. It is not the case of the petitioner that the respondent No. 4 lacks in any of the norms of eligibility prescribed by Rule 12 (d). In that perspective, the impugned decision appears to be aligned to the letter and spirit of the Rules vis-a-vis the post of Principal of H. S./H. Section and Multipurpose school governed thereby. 13. In Arun Ch. Neog v. State of Assam and Ors. WA No. 98/2002 (since disposed of on 22.7.2002) and Satya Charan Biswas (supra) the tussle for the office therein was founded on inter-se-seniority based on the date of receipt of graduate scale of pay. 13. In Arun Ch. Neog v. State of Assam and Ors. WA No. 98/2002 (since disposed of on 22.7.2002) and Satya Charan Biswas (supra) the tussle for the office therein was founded on inter-se-seniority based on the date of receipt of graduate scale of pay. In both the decisions, the plea of seniority urged on the basis of the length of service in the graduate scale of pay was sustained. In Satya Charan Biswas (supra) it was enunciated in no uncertain terms that in the case of the any temporary appointment or current duty charge of the post of Principal, the senior most teacher in the graduate/post graduate cadre should be appointed as per the practice and convention and he cannot be ignored unless there is something adverse against him. 14. In Sujit Paul (supra) the petitioner, who challenged the order whereby the respondent No. 4 therein was adjudged to be senior to him and thus allowed to hold the charge of the office of the Headmistress of the School involved, had been transferred to that institution as per his request. The order transferring him inter alia stipulated that he would occupy the lowest rung of seniority in the School and would not claim the same over the other staff thereof. The petitioner otherwise had joined as Assistant Teacher in the service prior to the respondent No. 4 and was in receipt of the graduate scale of pay earlier than her. His plea of superior seniority over the respondent No. 4 was, however, negated in view of the conditions subject to which his request for transfer was acceded to as referred to hereinabove. While rejecting his challenge, a Single Bench of this Court referred to school seniority and not cadre seniority for the purpose of determining the candidate for the incharge arrangement. In the facts of the case, the petitioner therein was estopped in view of the covenant contained in the order dated 30.1.1986 from claiming any higher seniority and it was in that perspective, cadre seniority of the candidates faded into insignificance. 15. Inter-se seniority of teachers in a school is the logically acceptable criteria for ascertaining the candidate for in-charge Head of the institution in absence of any other yardstick prescribed statutorily or otherwise. 15. Inter-se seniority of teachers in a school is the logically acceptable criteria for ascertaining the candidate for in-charge Head of the institution in absence of any other yardstick prescribed statutorily or otherwise. To determine the inter-se seniority in the School, however, the continuous length of service of the candidates irrespective of the post held per se may not always be the correct measure for the purpose regardless of the conditions of eligibility for the higher post. Such norms of eligibility and their length of service in the feeder post could be decisive factors in a given fact situation. These considerations do not detract from the notion of school seniority. 16. Rule 24 does not deal with the determinants of seniority vis-a-vis the post of Principal as it is not a promotional post unlike that of the Vice-Principal, Headmaster etc. enumerated therein and, therefore, stricto senso, the principles for computation of seniority as contained therein are not relevant for the purpose of the instant case. Nevertheless as the post graduate as well as graduate teachers under the 2003 Rules are eligible for direct recruitment as Principal, their length of service in the feeder post they hold as a criterion for the purpose of Principalship on incharge basis in the opinion of this Court cannot be denounced as absurd, preposterous and arbitrary. In the scheme of the Rules, such a benchmark appears to be acceptable, cogent and rational. Mere length of service without reference to the feeder post qua the higher post in contention ipso facto does not vest the incumbent concerned with a preferential right in this regard. 17. The assertions to the contrary are not sustainable in the estimate of this Court and are thus rejected. 18. The petition being without any merit is dismissed. 19. No costs. Petition dismissed.