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2010 DIGILAW 207 (GAU)

Dhiren Ch. Das v. State of Assam

2010-03-19

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mrs. N.S. Thakuria, learned counsel for the petitioner. Also heard Mr. M.K. Misra, learned standing counsel for respondent Education Department, Assam and Mr. S.K. Medhi, learned counsel for private respondent No. 4. 2. The present petition under article 226 of the Constitution of India has been filed praying for a direction to the respondents to set aside and quash the order dated 30.3.2007 issued by the Inspector of Schools, KDC, Guwahati, whereby the charge of the in-charge Headmaster of Sanpara Haropara High School has been handed over to the private respondent No. 4 who is junior to the petitioner. 3. The brief facts of the instant petition are that the petitioner, being a Science Graduate, entered into the service as Science Teacher on 2.3.1973 in the Sanpara Haropara High School. After serving for a period of about 4 years as Science Teacher, the said school was provincialized on 1.10.1977. There is a Middle School under the name and style of Sanpara Haropara Middle School in the same compound and the said Middle School was provincialized on 1.3.1978 and in the same year, the school was amalgamated with the Sanpara Haropara High School. In the said Middle school, private respondent No. 4 was working as Assistant Teacher since 5.4.1973 and after amalgamation, he was inducted as Assistant Teacher in the Sanpara Haropara High School. The petitioner has been receiving graduate scale of pay w.e.f. 1.3.1975 and since then, he is drawing the graduate scale of pay till date. On the other hand, private respondent No. 4 has been receiving his graduate scale of pay only w.e.f. 1.7.1977. The in-charge Headmaster of the Sanpara Haropara High School was due for retirement on 31.3.2007 and, therefore, the respondent Inspector of Schools asked him to submit a list of senior teachers of the school. The in-charge Headmaster accordingly submitted a list of senior teachers of the said school showing the name of in-charge Headmaster Sri Hareswar Majumdar at serial No. 1, the name of petitioner at serial No. 2 and the name of private respondent No. 4 Sri Rajen Ch. Kalita at serial No. 3. The in-charge Headmaster accordingly submitted a list of senior teachers of the said school showing the name of in-charge Headmaster Sri Hareswar Majumdar at serial No. 1, the name of petitioner at serial No. 2 and the name of private respondent No. 4 Sri Rajen Ch. Kalita at serial No. 3. The petitioner was shown senior to the private respondent No. 4 but in spite of that, the respondent Inspector of Schools, vide his impugned order dated 30.3.2007, issued an order directing to handover the charge of in-charge Headmaster of the concerned High School to private respondent No. 4, after retirement of in-charge Headmaster Sri Hareswar Majumdar on 31.3.2007. Being aggrieved, the petitioner submitted representations on 30.3.2007 and 31.3.2007 before the respondent No. 3 (Inspector of Schools) but to no effect and, hence, this present petition. 4. Mrs. Thakuria, learned counsel for the petitioner, submits that the petitioner is senior to private respondent No. 4 inasmuch as he has entered into service and received graduate scale of pay w.e.f. 1.3.1975 and his service was provincialized with the provincialisation of the said Sanpara Haropara High School w.e.f. 1.10.1977 whereas private respondent No. 4 entered into service as Assistant Teacher in M.E. School on 5.4.1973 and he received graduate scale of pay w.e.f. 1.7.1977 and the said M.E. School was provincialized on 1.3.1978. The private Respondent No. 4 was inducted as an Assistant Teacher in the said High School only in the year 1978. The in-charge Headmaster Sri Hareswar Majumdar submitted a seniority list of teachers of the Sanpara Haropara High School before his retirement but without acting upon the said seniority list, the respondent Inspector of Schools issued the impugned order arbitrarily and illegally which is liable to be set aside and quashed. 5. Based on the averments made in the counter affidavit filed on behalf of official respondent No. 2, Mr. Misra, learned standing counsel, Education Department, Government of Assam, submits that the petitioner's official appointment was made by the School Managing Committee before provincialization of the said School and was subsequently appointed as Stipendary Teacher under "Half a Million Job" Programme on 26.2.1973. Misra, learned standing counsel, Education Department, Government of Assam, submits that the petitioner's official appointment was made by the School Managing Committee before provincialization of the said School and was subsequently appointed as Stipendary Teacher under "Half a Million Job" Programme on 26.2.1973. The seniority of Stipendary Teacher appointed under "Haif a Million Job" Programme, according to learned standing counsel, is to be counted from the date of regularization in graduate cadre w.e.f. 1.3.1978 as per the provisions under rule 24(2)(iii) of Assam Secondary Education (Provincialized) Service Rules, 2003 and as per the policy decision of the State Government contained in letter dated 10.1.1978. In view of the aforesaid provision in the Service rules, the petitioner cannot claim seniority w.e.f. 1.3.1975 although he was receiving graduate scale of pay w.e.f. 1.3.1975. The petitioner's seniority has been counted w.e.f. 1.3.1978 as per the provision under the said Rules. The further submission of Mr. Misra, learned standing counsel is that private respondent No. 4 was working as the Headmaster of M.E. School since 10.12.1978 and he was also allowed to work as in-charge Assistant Headmaster of the said Sanpara Haropara High School vide order dated 19.3.1982 issued by the Deputy Director of Public instruction, Assam, i.e., after amalgamation of both the schools. The petitioner cannot claim as the senior-most teacher of the school in view of the aforesaid provision in the Service Rules and, therefore, the impugned order dated 30.3.2007 cannot be termed as arbitrary and illegal and the present writ petition is liable to be dismissed with cost. 6. Mr. Medhi, learned counsel appearing for private respondent No. 4, adopts the submissions made by the learned standing counsel for the Education Department. However, he submits that private respondent No. 4 was initially appointed on 5.4.1973 as a Graduate Teacher in the M.E. School which was at a venture stage at that time. One Sri Jatin Kakati was functioning as founder Headmaster of the said School. The said M.E. School was bifurcated and on bifurcation, private Respondent No. 4 was appointed as Headmaster of the School in question. But after amalgamation, on 1.3.1978, the respondent No. 4 was not given the post of Assistant Headmaster as per the practice prevalent at that time. One Sri Jatin Kakati was functioning as founder Headmaster of the said School. The said M.E. School was bifurcated and on bifurcation, private Respondent No. 4 was appointed as Headmaster of the School in question. But after amalgamation, on 1.3.1978, the respondent No. 4 was not given the post of Assistant Headmaster as per the practice prevalent at that time. Thereafter, a number of persons were appointed as Headmaster of the High School concerned from time-to-time, namely, Sri K.K. Das, Sri N.C. Das, Sri G.C. Das and Sri Hareswar Majumdar. The respondent No. 4 was allowed to take charge of the Headmaster of the Sanpara Haropara High School only after retirement of Sri Hareswar Majumdar as a measure of temporary arrangement till regular selection was made for filling up the posts of Headmaster and Assistant Headmaster of the High Schools in the State of Assam. Mr. Medhi, learned counsel, also submits that the selection test for appointment to the posts of Headmaster and Assistant Headmaster was conducted in 2002 but the results have not been declared till date. 7. Mr. Medhi, learned counsel appearing for private respondent No. 4, in order to establish his submissions, regarding counting of seniority of Teacher appointed under the "Haif a Million Job" programme, relies on Hem Chandra Dutta v. State of Assam and Ors. 2008 (4) GLT 9471 :(2009) 2 GLR 17 8. The petitioner filed a rejoinder to the counter affidavit of Respondent No. 4, denying the claim of the respondent No. 4. The petitioner disputed the claim of the private respondent No. 4 as under : 5... The respondent No. 4 was Headmaster of the M.E. School only for about a year and after amalgamation with the High School on 1.3.1978, he was not appointed as Assistant Headmaster of the High School. Though the respondent No. 4 once managed to get a copy of order to work as I/c Assistant Headmaster of Sanpara Haropara High School by depriving the legitimate claim of the senior most teacher of the School but such illegal attempt was failed. At that time, the senior most teacher of the school was Sri Karuna Kanta Das and ultimately, he was allowed to work as Assistant Headmaster of the School. Said Karuna Kanta Das worked as Assistant Headmaster till he was upgraded as Headmaster of the School. After him one Sri Narendra Ch. At that time, the senior most teacher of the school was Sri Karuna Kanta Das and ultimately, he was allowed to work as Assistant Headmaster of the School. Said Karuna Kanta Das worked as Assistant Headmaster till he was upgraded as Headmaster of the School. After him one Sri Narendra Ch. Das was allowed to work as Assistant Headmaster of the school on 27.2.1996 by the Inspector of School, Kamrup District Circle, Guwahati. The respondent No. 4 had never worked as Assistant Headmaster of the school till he is allowed by the impugned order dated 30.3.2007 to work as I/c Headmaster of the school. Had the respondent No. 4 been the senior most teacher of the school, he would have definitely been appointed as Assistant Headmaster of the school instead of others and the petitioner/Deponent would not have filed the above noted writ petition before the hon'ble Court by claiming seniority over the respondent No. 4. 9. In reply to the submissions made by Misra, learned standing counsel, Education Department, Assam, regarding counting of seniority, Mrs. Thakuria, learned counsel for the petitioner, submits that the service rendered by a Teacher in the School prior to provincialization, is to be counted, as has been held in Dibya Prasad Nath and Ors. v. State of Assam and Ors. 2002 (3) GLT 5151 :(2003) 1 GLR 209. As per the aforesaid decision of this court, according to Mrs. Thakuria, learned counsel, the seniority of the petitioner is to be counted from the date of his initial entry as Assistant Teacher w.e.f. 2.3.1973 and as such, the petitioner should be treated as senior to private respondent No. 4 and he should be allowed to takeover the charge of in-charge Headmaster of the said Sanpara Haropara High School. 10. I have given my anxious considerations on the pleadings and submissions made by the parties. From the pleadings and submissions of the parties concerned, I could understand that the core question involved in this case is whether the service rendered by the petitioner from 2.3.1973, i.e., before provincialization of the school, in question, could be counted and his seniority should be counted from the aforesaid date only. There is no dispute that the petitioner entered into service on 2.3.1973 while the school was run by a Managing Committee and the said school was provincialized only on 1.10.1977. There is no dispute that the petitioner entered into service on 2.3.1973 while the school was run by a Managing Committee and the said school was provincialized only on 1.10.1977. A teacher would be entitled to pay-scale only after provincialization of the school and as such, the claim of the petitioner that he had been receiving the graduate scale of pay w.e.f. 1.3.1975, i.e., before the provincialization of the school concerned, cannot be accepted. It is an admitted position that the petitioner was absorbed as Stipendary Teacher under "Half a Million Job" Programme w.e.f. 1.3.1975. If the petitioner was absorbed under the aforesaid "Half a Million Job" Programme, the claim of the petitioner that he received graduate scale from 1.3.1975 cannot be accepted as correct. It is also an accepted position that when a person is appointed as Stipendary Teacher, he is entitled only to a fixed amount per month without any pay-scale. It would have been natural and acceptable if the petitioner claims to have been receiving the graduate scale after 1.10.1977, i.e., provincialization of the school in question. The petitioner claims graduate pay-scale from the date of provincialization of the school i.e. 1.10.1977 but the provision under rule 24(2)(iii) does not allow the petitioner to count his service seniority from 1.10.1977. The petitioner could claim seniority only w.e.f. 1.3.1978. It is, therefore, felt necessary to reproduce the relevant portion of the aforesaid rule : 24. Seniority. - (1) ... (2) Seniority for promotion to the Post of Headmaster/Superintendent/ Assistant Headmaster/Assistant Superintendent shall be determined on the following basis - (i), (ii) *** *** *** (iii) regarding seniority in respect of H.M., J.P. (Stipendary) teacher, seniority shall be counted from the date of regularization in Graduate cadre with effect from 1.3.1978 vide Government letter No. ESS/72/ 468 dated 10.1.1978. 11. Having gone through the decision rendered in Dibya Prasad Nath (supra), I find that the same is particularly applicable to the present case insofar as counting of service in a school prior to its provincialization and particularly coming to a conclusion that the petitioner entered into service prior to the private respondent No. 4. Even taking into consideration that the petitioner's High School was provincialized on 1.10.1977, he is to be treated as senior to private respondent No. 4, his M.E. School being provincialized on 1.3.1978. Even taking into consideration that the petitioner's High School was provincialized on 1.10.1977, he is to be treated as senior to private respondent No. 4, his M.E. School being provincialized on 1.3.1978. It must be taken judicial notice that there was no sanctioned post in both the schools before provincialization of the respective schools and as such, there is no question of receiving graduate scale of pay before provincialization of the schools. Due to provision under rule 24(2)(iii) aforementioned, the service/seniority of the petitioner is to be counted only w.e.f. 1.3.1978. On the other hand, the service/seniority of private respondent No. 4 should also be counted only w.e.f. 1.3.1978 as his M.E. School was provincialized only from 1.3.1978. Moreover, averments have been made by private respondent No. 4 in paragraph 4 of his counter affidavit that he was : "......... initially appointed on 5.4.1973 as a Graduate Teacher in the said school which was at a venture stage at that time." So it is an admitted position that the private respondent No. 4 was in regular service against a sanctioned post in provincialized school only w.e.f. 1.3.1978 and he was receiving the graduate scale of pay only from 1.3.1978. From this position, it is found that seniority of both the petitioner and private respondent No. 4 should be counted/reckoned only w.e.f. 1.3.1978. In such a situation, neither of them is senior or junior to one other. The respondent authorities, particularly, respondent No. 3 (Inspector of School, Kamrup Circle, Guwahati) without applying his mind to the aforesaid factual position, mechanically allowed the private respondent No. 4 to takeover the charge of in-charge Headmaster of Sanpara Haropara High School. 12. Now, question arises as to what should be done when the date of entry into service between 2 (two) employees is on the same day, for the purpose of giving promotion to them or giving seniority between them. Normally, in service rules, in such a situation, the person who is elder in age as per the recorded date of birth is to be given seniority in service. It may be stated that former Headmaster Sri Hareswar Majumdar before his retirement on 31.3.2007, submitted a list of teaching staff of the school with detailed particulars including the date of birth, date of joining, etc.; (Annexure P/4 to the writ petition). It may be stated that former Headmaster Sri Hareswar Majumdar before his retirement on 31.3.2007, submitted a list of teaching staff of the school with detailed particulars including the date of birth, date of joining, etc.; (Annexure P/4 to the writ petition). According to this list, the petitioner's date of birth is reflected as on 1.9.1950 and that of private respondent No. 4's date of birth as on 1.6.1951. It is seen that the instant writ petitioner would retire earlier to private respondent No. 4. In my considered view, the petitioner being senior in age and retiring earlier to private respondent No. 4, he should have been given the chance to take over the charge of in-charge Headmaster of the aforesaid High School for the sake of fairness and justice to him. 13. In view of the foregoing discussions, the impugned order dated 30.3.2007 cannot be treated as fair, reasonable and sustainable under the law and the same is liable to be quashed. Accordingly, the impugned order dated 30.3.2007 is hereby set aside and quashed. The respondent No. 3 (Inspector of Schools, Kamrup District Circle, Guwahati) shall, within a period of 10(ten) days from the date of receipt of a certified copy of this order from the petitioner, issue a fresh order allowing the instant writ petitioner to takeover the charge of in-charge Headmaster of Sanpara Haropara High School till the date of his retirement/superannuation or regular appointment to the said post is made by the Government, in accordance with law/service rules, whichever is earlier. 14. With the above observations and directions, this writ petition stands allowed. There shall be no order as to costs. Petition allowed.