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2012 DIGILAW 164 (GAU)

Dharmendra Patowary v. State of Assam

2012-02-07

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. Misunderstanding of the law or deliberate mischief has brought the petitioner to this Court seeking, with the help of this writ petition, made under Article 226 of the Constitution of India, various directions from this Court. Though attempted to be made complicated, the admitted facts, relevant for the purpose of disposal of the present writ petition, may, in brief, be set out as under: (i) The respondent No. 5 herein, namely, Sri. Gopeswar Bharali, (hereinafter referred to as the 'private respondent,), a graduate, initially, joined as an Assistant Teacher, in Barghopa High School, an 01.11.1984. The said school came to be provincialised in the year 1991 in terms of Assam Secandary Education Provincialisation Act, 1982, and along with the provincialisation of the school, the service of the 'private respondent' was also, provincialised and the 'private respondent' acquired his B.Ed. Degree in the year 1993. In course of time, the 'private respondent' came, on transfer, to Byaskuchi High School, as an Assistant Teacher, an 17.08.2000. Thus, appointed an 01.11.1984 as an Assistant teacher, the 'private respondent', on transfer, from Barghapa High School to Byaskuchi High School, joined on 17.08.2000. (ii) The writ petitioner, on the other hand, though graduate, was appointed as an Assistant Teacher in Barbhitha Khangra ME School on 05-03.1992 and came, on transfer, to Byaskuchi M.E. School on 19.09.92. (iii) While the writ petitioner had been working as an Assistant Teacher in Barbhitha Khangra ME School and the 'private respondent' had been working as an Assistant Teacher in Byaskuchi High School, both the schools, being situated in the same compound, came to be amalgamated on 15.03.2001 and with effect from 15.03.2001, the writ petitioner as well as the 'private respondent' became Assistant Teachers of Byaskuchi High School. (iv) When the vacancy, in the post of Headmaster of the said High School, arose, on 31.12.2010, on superannuation of its incumbent, the question of appointment of the senior most teacher as in-charge for the office of the Headmaster of Byaskuchi High school confronted the administration. Before his retirement on superannuation, the Headmaster of the said school, however, sent to the State respondents, authorities concerned a list of teaching and non-teaching staff of the said school, wherein the writ petitioners date of joining the school was shown as 07.03.1992; whereas the date of joining of the 'private respondent' was shown as 01.11.1984. Before his retirement on superannuation, the Headmaster of the said school, however, sent to the State respondents, authorities concerned a list of teaching and non-teaching staff of the said school, wherein the writ petitioners date of joining the school was shown as 07.03.1992; whereas the date of joining of the 'private respondent' was shown as 01.11.1984. (v) Thus, the private respondent was, in terms of the date of joining, shown as senior to the writ petitioner. However, in the list, so forwarded to the State respondents, authorities concerned by the said Headmaster, the present petitioner was placed in the fourth position; whereas the 'private respondent' was placed at the seventh position in the said list. (vi) Acting upon the list, so provided by the ongoing headmaster, the Inspector of Schools, Barpeta District Circle, forwarded the said list to the Director of Secondary Education, Assam, for allowing the senior-most teacher to look after the academic side of the school for smooth functioning of the classes. The Deputy Director, in turn, issued a letter, dated 08.04.2010, addressed to the Inspector of Schools, Assam, wherein he enlisted three teachers of the said school in their order of seniority as understood by him. The seniority, so depicted, read, 1. Sri Dharmendra Patowary, Asstt. Teacher 1st, 2. Sri Gunindra Kr. Das, Asstt. Teacher 2nd 3. Sri Manoj Kr. Talukdar, Asstt. Teacher 3rd. This was followed by order, dated 27.04.2010, issued by the Inspector of Schools, allowing the present petitioner, Dharmendra Patowary, to look after the academic side of the school treating him as the senior-most teacher of the school. (vii) Aggrieved by the above action of the State respondents aforementioned, the 'private respondent' made a representation to the Commissioner and Secretary to the Govt. of Assam expressing his grievances that though he was senior to the present petitioner in Byaskuchi High School, he has been ignored by appointing the 'present petitioner' as in-Charge of the office of the Headmaster of the said school. As his representation made to the Commissioner and Secretary to the Govt. of Assam was kept pending, the private respondent, feeling aggrieved, preferred an appeal to the Assam Administrative Tribunal, Guwahati. This appeal came to be registered as 48ATA/2010 and was disposed of, on 05.10.2010, by remanding the appeal to the Commissioner and Secretary to the Govt. As his representation made to the Commissioner and Secretary to the Govt. of Assam was kept pending, the private respondent, feeling aggrieved, preferred an appeal to the Assam Administrative Tribunal, Guwahati. This appeal came to be registered as 48ATA/2010 and was disposed of, on 05.10.2010, by remanding the appeal to the Commissioner and Secretary to the Govt. of Assam for consideration of the representation made by the 'private respondent' with a rider that till the decision was taken as to who between the two, namely, writ petitioner and he 'private respondent', was senior, the promotion to the post of Headmaster should not be affected meaning thereby that none of the said two teachers shall be appointed as in-Charge Headmaster of the office until seniority between them is determined by the Commissioner and Secretary. Aggrieved by the order, passed by the learned Tribunal, the present writ petitioner is before this Court with the present writ petition made under Article 226 of the Constitution of India. I have heard Mr. B.N. Sharma, Learned Counsel, for the petitioner, and Mr. A.D. Choudhury, learned Standing Counsel, Education Department, for the respondent Nos. 1 to 3.1 have also heard Mr. U.K. Nair, Learned Counsel, for the respondent No. 5. 2. Appearing on behalf of the writ petitioner, Mr. B.N. Sarma, Learned Counsel, submits that the order, dated 05.10.2010, passed by the learned Tribunal, is wholly illegal inasmuch as it has been passed without granting any opportunity of hearing to the writ petitioner. It is also submitted by Mr. B.N. Sarma, Learned Counsel, that when the writ petitioner had been shown by the authorities concerned as an Assistant teacher senior to the 'private respondent' in Byaskuchi High School, the writ petitioner ought to have been allowed by the learned Tribunal to hold the post as in-charge Headmaster of the said school. 3. Reacting to the submissions made by Mr. B.N. Sarma, Learned Counsel, Mr. U.K. Nair, Learned Counsel, has made me traverse through various Rules of the Assam Secondary Education (sic) cialised) Service Rules, 2003 (hereinafter referred to as the 2003 Rules'). Mr. 3. Reacting to the submissions made by Mr. B.N. Sarma, Learned Counsel, Mr. U.K. Nair, Learned Counsel, has made me traverse through various Rules of the Assam Secondary Education (sic) cialised) Service Rules, 2003 (hereinafter referred to as the 2003 Rules'). Mr. Nair has, first, brought me to the Circular, dated 16.07.2003, issued by the Government of Assam, Education (Personnel) Department, which lays down the guidelines as regards seniority between the teachers of a High School and M.E. School on their amalgamation with each other, and contended that in terms of the guidelines, so issued, while the pay protection has been provided to the teachers of M.E. Schools, with effect form the date of amalgamation of the High School with its M.E. School, the seniority between the teachers of the amalgamated High School and M.E. School concerned shall be counted with effect form the date of amalgamation. 4. Thus, according to Mr. Nair, for the services already rendered as an Assistant Teacher in M.E. School, the Government guidelines, while providing pay protection to the teachers of the amalgamated M.E. schools, do not give them seniority from the date on which a teacher had joined the M.E. school, but his seniority has to be reckoned, or would be reckoned, with effect from the date of amalgamation. Mr. Nair, however, points out that notwithstanding to the fact that the guidelines aforementioned, issued on 16.07.2003, makes the 'private respondent' senior to the writ petitioner, even otherwise, the 'private respondent' is senior to the writ petitioner from the date of appointment as a teacher inasmuch as the 'private respondent' was appointed as a teacher in M.E. school on 01.11.1984, though he came, on transfer, to Byaskuchi High School on 17.08.2000; whereas the present petitioner was appointed as a teacher in M.E. school as late as on 05.03.1992 and, then, came, on transfer to Byaskuchi High School on 09.09.1992. Thus, while the 'private respondent' became a teacher of High School on 01.11.1984, the petitioner became a teacher of M.E. school on 05.03.1992. The 'private respondent', thus, further points out Mr. Nair, has been a teacher for a period for longer than that of the petitioner in Byaskuchi High School. 5. Coupled with the above, drawing attention of this Court to Rule 24 of the 2003 Rules, Mr. The 'private respondent', thus, further points out Mr. Nair, has been a teacher for a period for longer than that of the petitioner in Byaskuchi High School. 5. Coupled with the above, drawing attention of this Court to Rule 24 of the 2003 Rules, Mr. Nair points out that Rule 24 governs the inter se seniority between the teachers of graduate cadre in a High School and in Higher Secondary School and it lays down, inter alia, that teachers seniority would be counted from the date of joining the school on regular basis. 6. Taking this Court through Rule 14 of the 2003 Rules, particularly, sub-Rule (3) thereof, Mr. Nair submits that sub- Rule (3) of Rule 14 clearly shows that in case of amalgamation of a High school and a M.E. school, the Headmaster/Headmistress of the M.E. amalgamated School shall be eligible for selection as an Assistant Headmaster/ Headmistress subject to certain conditions, meaning thereby, contends Mr. Nair, that even a Headmaster or Headmistress of an amalgamated M.E. School is eligible for selection to the post of Assistant Headmaster/Headmistress, as the case may be, and not as Head Master or Head Mistress; whereas, the post of Head Master or Head Mistress of a High School can be filled by promotion from the selected teacher of a High School meaning thereby that a teacher of a High School is treated to be at higher pedestal than the teacher of an amalgamated M.E. school. No wonder, therefore, contends Mr. Nair, the Government guidelines, dated 16.07.2003, gives the teacher of an amalgamated M.E. school seniority with effect from the date of his/her becoming teacher of the amalgamated High school. 7. Mr. Nair has further pointed out that as per the definition of 'graduate teacher' given in Rule 2 (n) of the 2003 Rules, an Assistant teacher of High/Higher Secondary and Multipurpose School/High Madrassa school means the category of Assistant teachers in High/Higher Secondary and Multipurpose School/High Madrassa school for whose appointment the minimum qualification prescribed is a Graduate degree in Arts, Science or Commerce; whereas an M.E. school can have a teacher who is even not a graduate inasmuch as passing of pre-university/intermediate is the minimum requisite qualification to become a teacher in an M.E. school. In support of the contention that a teacher of a High School stands on a higher footing than a teacher of an M.E. School, Mr. In support of the contention that a teacher of a High School stands on a higher footing than a teacher of an M.E. School, Mr. Nair has referred to, and relied upon, the case of Rehana Ahmed v. State of Assam and Ors., reported in 2008 (Suppl) GLT 714. 8. While considering the present writ petition, it needs 'to be noted that passing of an order by a Tribunal cannot be set aside on the ground that the order has been passed without giving notice to the person, who claims to be aggrieved, unless the person concerned can show that the decision, which became the basis of the direction, was wrong. If the basis of the direction is correct, no prejudice can be said to have been caused to the person, who is adversely affected by the order. In other words unless prejudice is shown to be caused, while passing an order to the person, who claims to be aggrieved, such an order cannot be set aside merely because the order was: passed without according opportunity of hearing to the person, who claims to be aggrieved. In such circumstances, thus, prejudice is the test for determining the question as to whether an administrative action shall or shall not be interfered with on the ground of violation of the principles of natural justice. 9. Bearing in mind the above principle, when we turn to the facts of the present case, it becomes more than abundantly clear that even in the list, which the Headmaster of the Byaskuchi High School, on the verge of his retirement, sent to the Inspector of Schools, he had clearly noted the private respondent' as senior to the writ petitioner. This apart, the private respondent' admittedly, joined High School on 01.11.1984 as a graduate teacher and the school came to be provincialised in the year 1991, whereas the writ petitioner joined, as Assistant teacher, in the amalgamated M.E. School on 05.03.1992, i.e., long after the 'private respondent' had already become a teacher in a provincialised High School and came, on transfer, to Byaskuchi High School on 17.08.2000. This apart, the amalgamation of the schools took place on 15.03.2001 and, in terms of the Government guidelines, dated 16.07.2003, aforementioned, the date of seniority of the teachers of the amalgamated M.E. school would be reckoned with effect from the date of amalgamation and not from the date of joining. This apart, the amalgamation of the schools took place on 15.03.2001 and, in terms of the Government guidelines, dated 16.07.2003, aforementioned, the date of seniority of the teachers of the amalgamated M.E. school would be reckoned with effect from the date of amalgamation and not from the date of joining. Hence, the writ petitioner has to be treated, as long as the Government guidelines, dated 16.07.2003, remain unchallenged and are not set aside, as an Assistant teacher of the amalgamated High School with effect from the date of the amalgamation (i.e., 15.03.2001) and not from the date of his joining the Barbhitha Khangra ME School on 05.03.1992, or the Byaskuchi High School on 19.09.1992. 10. Further-more, the Government guidelines, dated 16.07.2003, also makes it clear that in consideration of the administrative experience gained by the Headmaster/ Headmistress of an M.E. School, such Headmaster/Headmistress may be considered for appointment as Assistant Headmaster/Headmistress of the amalgamated High School. Thus, logically, what the guidelines indicate is that the Headmaster/Headmistress of an M.E. school is not even qualified for appointment as Headmaster/Headmistress of the amalgamated High School inasmuch as the maximum level, which a Headmaster/ Headmistress of an M.E. School can attain, on promotion, In an amalgamated High School, is the post of Assistant Headmaster/Headmistress of the amalgamated High School. This apart the expression, 'graduate teacher' as appearing in Rule 2 of the 2003 Rules, does not include a teacher of an M.E. School inasmuch as a graduate teacher, as defined by Rule 2(n), means the category of Assistant Teacher in High/ Higher Secondary/ Higher Secondary' and Multipurpose/High Madrassa Schools for whose appointment the minimum qualification' prescribed is a Graduate degree in Arts, Science or Commerce. 11. Even Rule 14 (3) shows that the Headmaster or Headmistress of an M.E. School can become, subject to fulfillment of certain conditions, Assistant Headmaster/ Headmistress of the amalgamated High School. Conversely, the Headmaster/Headmistress of an M.E. School is not even eligible for consideration for appointment as a Headmaster/Headmistress of the amalgamated High School, whereas a teacher of a High School is qualified to be appointed to the post, of Headmaster/ Headmistress of the High School. 12. Conversely, the Headmaster/Headmistress of an M.E. School is not even eligible for consideration for appointment as a Headmaster/Headmistress of the amalgamated High School, whereas a teacher of a High School is qualified to be appointed to the post, of Headmaster/ Headmistress of the High School. 12. Taking into account the definition of 'graduate teacher', appearing in Rule 2 (n) of the 2003 Rules, as well as the eligibility criteria mentioned in Rule 14 of the 2003 Rules, I am fortified by the decision, in Rehana Ahmed (supra), which Mr. Nair has relied upon, wherein a learned Single Judge of this Court (Amitava Roy, J.) has concluded that the date of joining of a graduate teacher, in a High School, is the fundamental criterion counting of seniority of a graduate teacher in a High School. The Court has held that even a graduate teacher, in M.E. school, is not construed to be a graduate teacher under Rule 14 (4). The relevant observations, made in this regard, read as under: 17. The parties, presently, are governed by the Rules, which defines 'graduate teacher' in Rule 2(n). It means the category of Assistant Teacher in High/Higher Secondary/Higher Secondary and Multipurpose High Madrassa Schools for whose appointment, minimum qualification prescribed is a Graduate Degree in Arts, Science or Commerce and includes Demonstrators in Higher Secondary/Higher Secondary & Multipurpose School. In terms of the Rules, therefore, a teacher with a Graduate Degree in an M.E. School is not construed to be a Graduate Teacher under the Rules. Rule 14 (4), which lay down the conditions of eligibility for promotion to the post of Headmaster of a High/High Madrassa School mandates, inter alia, 10 years of teaching experience as a Graduate Teacher. Therefore, Rule 24, which ordains the norms for measuring the seniority of an Assistant Teacher for promotion to the post of Headmaster in sub-rule (2) (i) indicates the length of continuous service from the date of joining as whereas, Graduate Teacher in the School to be the fundamental criteria with other situation-wise measures as enumerated in Clause (ii) to (iv). On this count as well, the respondent No. 4's claim of superior seniority above the petitioner founded on his past service in the M.E. School, is untenable in the teeth of the Rules. 13. On this count as well, the respondent No. 4's claim of superior seniority above the petitioner founded on his past service in the M.E. School, is untenable in the teeth of the Rules. 13. Because of what have been discussed and pointed out above, it becomes clear that the writ petitioner cannot, in the absence of any other material, be treated to be senior to the 'private respondent' and, in such circumstances, the learned Tribunal merely directed the Commissioner and Secretary to the Government of Assam, Education Department, to dispose of the representation, which the 'private respondent' had made against the order, dated 27.04.2010, where the Inspector of Schools had allowed the writ petitioner to look after the academic side of the amalgamated Byaskuchi High School treating him as the senior-most teacher of the High School; whereas the 'private respondent' ought to have been treated as senior to the present petitioner. 14. The impugned order, passed by the learned Tribunal, has, thus, caused no prejudice to the present writ petitioner, when, pending determination of the inter se seniority between the writ petitioner and the 'private respondent', the learned Tribunal directed that none of the two persons, namely, the writ petitioner and the 'private respondent', shall be allowed to hold the charge of the office of the Headmaster of the amalgamated High School until the time the inter se seniority between them is determined. 15. What crystallizes from the above discussion is that the impugned order of the learned Tribunal is neither wholly illegal nor has it caused any prejudice to the writ petitioner, The impugned order cannot, therefore, be interfered with. 16. In the result and for the reasons discussed above, this writ petition fails, the same is not admitted and shall accordingly stand dismissed. 17. Before parting with this writ petition, I am inclined to point out that the observations made, and the conclusions reached above, are tentative in the sense that the observations and findings are based on not only on the provisions of law, but also on the basis of the pleadings of the parties and the materials on record. The Commissioner and Secretary to the Government of Assam, Education Department, Would, therefore, remain at liberty to arrive at his own conclusion on the basis of the materials, which may be produced by the parties concerned. The Commissioner and Secretary to the Government of Assam, Education Department, Would, therefore, remain at liberty to arrive at his own conclusion on the basis of the materials, which may be produced by the parties concerned. The Commissioner and Secretary to the Government of Assam, Education Department, shall accord adequate opportunity of hearing to both the writ petitioner as well as the private respondent' and, then, render his finding and, on the basis of the findings, which may be so reached, necessary order shall be issued by the Government appointing in-charge for the post of Headmaster of the Byaskuchi High School. The order, which may be passed by the Government, shall remain in force until a regular Headmaster/Headmistress is appointed in the Byaskuchi High School, or until new events/circumstances take place warranting modification/vacation of the order. No order as to costs.