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2009 DIGILAW 5 (GAU)

Harekrasna Das v. Gadadhar Choudhury

2009-01-05

A.C.UPADHYAY, AFTAB H.SAIKIA

body2009
JUDGMENT Aftab H. Saikia, J. 1. Heard Mr. I. Hussain, learned Counsel for the Appellant as well as Mr. S.K Medhi, learned Counsel for the Respondent No. 1. 2. None appears for the State when the matter is taken up for hearing. 3. The legality and correctness of the judgment and order dated 14.11.2006 rendered by the learned Single Judge in W.P. (C) No. 1912/2006 have been assailed in this writ appeal. 4. The facts in brief in the instant case are that the Respondent No. 1, as claimed, is the senior most Assistant teacher in Graduate scale of pay in the Bhawanipur Higher Secondary School (hereinafter referred to as 'the School') and he was appointed in the said post on 22.8.1977 whereas the Appellant herein was appointed in the capacity of Assistant teacher in the School on 25.1.1978 and such situation has been reflected in the Annexure-II (Proforma) so annexed in this writ appeal. However, ignoring such seniority, it is alleged before the writ Court by the Respondent No. 1 as the writ Petitioner, the Appellant was appointed as In-charge of the post of Principal in the School by the impugned order dated 28.2.1986. 5. The writ Court having considered the entire facts and circumstances in its entirety and on close perusal of the materials available on record as well as relying upon the decision of this Court dated 18.8.2006 rendered in W.P (C) No. 2332/2004 (Sri Jiten Thakuria v. The State of Assam and Ors.) as well as the decision of a Division Bench of this Court dated 3.11.2003 passed in W.A. No. 448/2003 (in W.P. (C) No. 6285/2002) which has been reported in Gauhati Law Times with the citation of 2006 1 GLT 493 (Abdul Matin Talukdar v. Haricharan Medhi and Ors.), held that the Respondent No. 1 on the face of the record itself was a senior teacher than the Appellant. Rejecting the argument to the effect that since the Respondent No. 1 was transferred only on his own request in the year 1985, he forfeited his seniority in terms of the Assam Secondary Education (Provincialisation) Service Rules, 2003, (for short 'the Rules'), the learned Single Judge observed that assuming that the Respondent No. 1's his transfer was on his own request, the Rules which has been pressed into service in this case is not applicable because Respondent No. 1 was transferred in the year 1985 much before the operation of the Rules which came into force w.e.f. 2003 without giving any retrospective effect to the same. It was true that only the teacher, who was transferred on his/her own request to any other school could not claim seniority in that school in the inter-se-seniority list. His/Her seniority in that school would be counted with effect from the date of his/her joining in that school. 6. It is pertinent to mention herein that the relevant portion of the Rule 24(2)(v) of the Rules and the same may be quoted as under: 24. Seniority-(1) The inter-se-seniority of the teachers of Graduate cadre and Post Graduate cadre in a school shall be considered/determined for: (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 the case of employee holding same position in the merit list; (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. (ii) seniority regarding classical teacher shall be counted as per Govt, letter No. (B)(3)S244/99/42, dated 3.8.1990 in which it is stated that the classical teachers of Hindi, Sanskrit, Arabic, Parisan, Assamese, Bodo etc. (ii) seniority regarding classical teacher shall be counted as per Govt, letter No. (B)(3)S244/99/42, dated 3.8.1990 in which it is stated that the classical teachers of Hindi, Sanskrit, Arabic, Parisan, Assamese, Bodo etc. having Degree qualification may be included in the cadre of graduate teacher for giving benefit of promotion to the Higher post in the same line of general teacher i.e. from the date of issue of the aforesaid Govt, letter dated 3.8.1990; (iii) regarding seniority in respect of H.M., J.P., (Stipendiary) teacher, seniority shall be counted from the date of regularisation in Graduate cadre with effect from 1.3.1978 vide Govt, letter No. ESS/0/72/468, dated 10.1.1978; (iv) in case of teachers appointed 1 against the H.M., J.P. scheme in | the M.E. School, their period of ') service in M.E. School shall not be J counted for promotion in the High School. His/her service shall be counted from the date of joining in the High School only; (v) the teacher, who has been transferred on his/her own request to any other school cannot claim seniority in that school in the inter-se-seniority list. His/her seniority in that school will be counted with effect from the date of his/her joining in that school. 7. In paragraph 14 of the judgment of (Abdul Matin Talukdar v. Haricharan Medhi and Ors.) reported in 2006 1 GLT 493, the Division Bench of this Court held as under; 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 Single 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 3.9.1994, a date on which the document dated 30.8.2001 was not inexistence. 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. 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 does 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. 8. Having applied the ratio of the aforesaid case in the case at hand and also having meticulously perused the materials available on record, it appears that the Respondent No. 1 is senior to the Appellant as he joined to the post of Assistant teacher on 22.8.1977 whereas the Appellant joined on 25.1.1978. 9. Having regard to the ratio laid down in the aforesaid case, we are of the firm view that even if the Respondent No. 1 was transferred on his own request with effect from 20.2.1985, the Rules was not applicable in the instant case because the Rules which came into operation in the year 2003, was not given any retrospective effect. 10. hi view of the above, we are of the considered view that there is no cogent or plausible ground to persuade us to disturb the findings so arrived at by the learned Single Judge. Accordingly, we find that this writ appeal is bereft of any merit. 11. The stay order granted earlier stands vacated. 12. We direct the Commissioner and Secretary to the Govt, of Assam, Education Department to comply with the direction recorded in the impugned judgment within a period of 1 month from to-day. 13. Certified copies of the order be furnished to be learned Counsel for the parties for onward transmission to the competent authority to do the needful. 14. In the result appeal fails and stands dismissed.