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2013 DIGILAW 841 (GAU)

Lila Kanti Mahanta v. State of Assam

2013-12-03

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. Both the writ petitions by and between the same parties have been heard analogously and are being disposed of by this common judgement and order. While in WP(C) No. 3142/2007 (hereinafter referred to as the first writ petition) the petitioner has challenged the order dated 27/02/2006 by which the Sub-Inspector of Schools, Biswanath Division ordered for handing over charge to the respondent No. 4 upon retirement of the regular incumbent as Headmistress of the School in question, in WP(C) No. 992/2013 (hereinafter referred to as the second writ petition), the petitioner has challenged the order dated 29/09/2012 by which the earlier order dated 24/09/2012, by which she was allowed to perform the duties as Headmistress of the School was cancelled. Because of this order dated 29/09/2012, the respondent No. 4 continued to hold the charge of Headmistress of the School and still holding the charge. I have heard Mr. P. Mahanta, learned counsel for the petitioner in both the writ petitions. I have also heard Mr. J. Abedin, learned Standing Counsel, Education and so also Mr. A. Sharif, learned counsel representing the respondent No. 4. I have also considered the entire materials on record. The basic facts of both the writ petitions are as follows. 2. As recorded in the earlier orders in this proceeding dated 12/11/2013, the petitioner was transferred to the present School vide order dated 29/09/1994 in public interest. On the other hand, the respondent No. 4 was transferred to the School on 26/12/2006 on her own request on mutual arrangement with one Moniram Basumatary. The respondent No. 4 having been transferred to the present school not in public interest but on her own interest on mutual arrangement, admittedly she is not entitled to count seniority in the school from the date of her such transfer. On the other hand, leaving aside the earlier period of service of the petitioner, upon her transfer to the present School on 29.9.2004, she would rank senior to the respondent No. 4. Thus, on this count, the petitioner has claimed that she being the senior most teacher of the School, the charge of Headmistress should have been given to her and in fact, such charge was also given to her vide order dated 24/9/2012(Annexure-12 to the second writ petition). Thus, on this count, the petitioner has claimed that she being the senior most teacher of the School, the charge of Headmistress should have been given to her and in fact, such charge was also given to her vide order dated 24/9/2012(Annexure-12 to the second writ petition). However, the order was withdrawn vide order dated 29.9.2012, making a grievance against which the petitioner has filed the second writ petition. 3. In the counter affidavit filed by the respondents, both official and private, it has been contended that since the petitioner was transferred to the present school which is a Govt. school from a provincialised school, she will not be entitled to count seniority in the present school. It is the further plea that since the respondent No. 4 is a teacher of the present Govt. school, she has been allowed to hold charge of the School. 4. It is in the counter affidavit filed by the Director of Elementary Education on 06/11/2013, the aforesaid plea has been raised. However, when it was found that the petitioner had no hand in her transfer to the present school in 1994 and she cannot be deprived of her seniority, if any mistake was committed by the departmental authorities, the Director of Elementary Education was directed to clarify the position. Be it stated here that the only plea in respect of the purported irregularities in transferring the petitioner to the present school in 1994 is the DI of schools, who could not have transferred her to the present school without the approval of the Director of Elementary Education. 5. After the aforesaid order dated 121/11/2013, the Director of Elementary Education, has filed another affidavit on 19.11.2013 clarifying the position. From this affidavit, it appears that the respondent No. 4 who was earlier appointed in a Govt. LP school was subsequently transferred to a provincialised school from where she was again transferred to the present Govt. school. Thus, the respondent No. 4 herself is the beneficiary of the transfer from Govt. to provincialised and thereafter again to Govt. School. If that be so, there is a practice in vogue in transferring the teachers from Govt. School to provincialised school and vice-versa. The respondent No. 4 herself being the beneficiary of the same, cannot now question the transfer of the petitioner from the provincialised school to a Govt. school way back in 1994. School. If that be so, there is a practice in vogue in transferring the teachers from Govt. School to provincialised school and vice-versa. The respondent No. 4 herself being the beneficiary of the same, cannot now question the transfer of the petitioner from the provincialised school to a Govt. school way back in 1994. There is also no formal challenge to the said transfer order. 6. If any approval of the Director of Elementary Education, Assam was required towards transferring the petitioner way back in 1994, the petitioner cannot be attributed with any fault as she is not instrumental in getting the approval. The DI of Schools having transferred her to the present school in public interest and such transfer having been materialized and having remained in force for all these years under the very nose of the Director of Elementary Education, Assam, there is tacit approval on his part. As has been held by the Apex Court in Union of India v. G.N. Tiwari reported in AIR 1986 SC 348 if a particular act, although without the approval of the authority, but remained in operation under the very nose of the authority, it should be presumed that there is tacit approval in respect of the said act. Even otherwise also, about 20 years after the transfer of the petitioner to the present school in 1994, it cannot be said that she will be on air without any seniority and service benefit. This aspect of the matter has now been clarified by the respondent No. 2 in his affidavit filed on 19/11/2013 with the clear finding that the petitioner would rank senior to the respondent No. 4 in the school. 7. With this realization, the authority in fact, had passed the order dated 24/09/2012 giving charge of Headmistress to the petitioner but subsequently again passed the impugned order dated 29/09/2012 (Annexure-13) withdrawing the same. 8. 7. With this realization, the authority in fact, had passed the order dated 24/09/2012 giving charge of Headmistress to the petitioner but subsequently again passed the impugned order dated 29/09/2012 (Annexure-13) withdrawing the same. 8. In view of the above, both the writ petitions are allowed by setting aside and quashing the impugned orders, namely the order dated 27/02/2006 (Annexure-7 to the first writ petition) and the Annexure-13 order dated 29/09/2012 (Annexure-13 to the second writ petition) with the direction that it is the petitioner who will hold the charge of the post of Headmistress of the school and the order dated 24/09/2012 (Annexure-12 to the second writ petition), shall stand restored and accordingly the Director of Elementary Education shall pass appropriate order immediately. Both the writ petitions are allowed. There shall be no order as to costs. Petition allowed.