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2014 DIGILAW 955 (GAU)

Abul Kalam Talukdar v. State of Assam

2014-10-31

K.SREEDHAR RAO, UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. D. Das, learned Senior Counsel for the petitioner and Mr. S. Saikia, learned Standing Counsel, Education Department. Also heard Mr. D.K. Sarmah, learned Counsel for respondent No. 5. Issue raised in this writ petition primarily relates to inter-se-seniority of petitioner and respondent No. 5 as subject teacher of a higher secondary school called Tarabari Higher Secondary School in the district of Barpeta and consequential holding of charge of the office of Principal of the said School. 2. Background facts leading to filing of the writ petition and as to how the writ petition came to be placed before the Division Bench for adjudication may be briefly stated hereunder. 3. Petitioner was appointed as subject teacher in English in Borobazar Higher Secondary School vide order dated 12.03.1991 issued by the Director of Secondary Education, Assam (for short, the Director hereafter). Petitioner joined on 13.03.1991. By order dated 17.03.1992 issued by the Director, petitioner was transferred to Tarabari Higher Secondary School. Petitioner joined on 01.06.1992. 4. According to the petitioner, he is the senior most subject teacher in the Tarabari Higher Secondary School. In the seniority lists prepared, petitioner was shown as the senior most subject teacher. Being the senior most subject teacher, petitioner was allowed to hold the charge of office of the Principal of Tarabari Higher Secondary School vide order dated 01.09.2011 issued by the Director when the office of Principal fell vacant. 5. Respondent No. 5 was appointed as subject teacher in Economics in the Tarabari Higher Secondary School on 02.02.1992 pursuant to which he joined on 25.02.1992. Respondent No. 5 contended that petitioner's transfer from Borobazar Higher Secondary School to Tarabari Higher Secondary School was a request transfer at the instance of the petitioner and it was not a transfer in the public interest. Therefore, he contended that petitioner's seniority in the Tarabari Higher Secondary School would have to be counted only from 01.06.1992 when he joined the said School as his previous service in the earlier School would not be counted in view of request transfer. This makes the respondent No. 5 senior to the petitioner in the Tarabari Higher Secondary School. 6. Therefore, he contended that petitioner's seniority in the Tarabari Higher Secondary School would have to be counted only from 01.06.1992 when he joined the said School as his previous service in the earlier School would not be counted in view of request transfer. This makes the respondent No. 5 senior to the petitioner in the Tarabari Higher Secondary School. 6. Respondent No. 5 filed WP(C) No. 5000/2011 before this Court challenging the legality and validity of the order dated 01.09.2011 passed by the Director allowing the petitioner to hold charge of the office of Principal of Tarabari Higher Secondary School. This Court by order dated 19.03.2012 disposed of the said writ petition by directing the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department to decide the dispute relating to seniority between petitioner and respondent No. 5 by ascertaining whether the petitioner was transferred to Tarabari Higher Secondary School as per his own request keeping in mind the judgment of this Court dated 20.12.2011 passed in WA No. 131/2010 and other connected cases to which we shall advert to at a subsequent stage. 7. Anticipating that respondent No. 5's seniority may be determined above the petitioner and that he may be divested of the charge of Principal of the School, petitioner again approached this Court by filing WP(C) No. 4038/2012. During the pendency of the said writ petition, the Court was informed that Secretary to the Government of Assam, Education (Secondary) Department had passed an order dated 21.08.2012 deciding the seniority in favour of respondent No. 5 and holding that he may be allowed to hold the charge of Principal of Tarabari Higher Secondary School. The Director was directed to issue consequential order in this regard. In view of passing of the aforesaid order, WP(C) No. 4038/2012 was closed by this Court giving liberty to the petitioner to challenge the order dated 21.08.2012. 8. Thereafter, petitioner has filed the present writ petition challenging the legality and validity of the aforesaid order dated 21.08.2012. Petitioner has also questioned the vires of Rule 12 of the Assam Secondary Education (Provincialized) Service (Amendment) Rules, 2012. Because of challenge to the vires, the case was taken up by the Division Bench as per existing administrative guidelines of the Court. 9. Assam Secondary Education (Provincialized) Service (Amendment) Rules, 2012 has been enacted to amend the Assam Secondary Education (Provincialized) Service Rules, 2003. Because of challenge to the vires, the case was taken up by the Division Bench as per existing administrative guidelines of the Court. 9. Assam Secondary Education (Provincialized) Service (Amendment) Rules, 2012 has been enacted to amend the Assam Secondary Education (Provincialized) Service Rules, 2003. As per Rule 12 of the Amendment Rules, Rule 24 of the Principal Rules would stand substituted. As per the substituted Rule 24(3), seniority of a teacher in the cadre who joined the school otherwise than by way of direct recruitment i.e. on transfer or otherwise, shall be determined as per the date of joining in the school in the concerned cadre. Seniority shall be determined from the date of joining in the school and seniority in earlier school shall not be taken into account. 10. This Court by order dated 14.09.2012 issued notice and in the interim directed that status-quo with regard to the office of the Principal of Tarabari Higher Secondary School as on that day should be maintained. 11. A Division Bench of this Court passed an order dated 18.12.2012 in WP(C) No. 1526/2012 and other connected cases holding that Assam Secondary Education (Provincialised) Service (Amendment) Rules, 1991 (for short, the 1991 Rules) as well as the Assam Secondary Education (Provincialized) Service Rules, 2003 (for short, the 2003 Rules) were unconstitutional, null and void. The 1991 Rules were framed to amend the Assam Secondary Education (Provincialized) Service Rules, 1982 (for short, the 1982 Rules). 12. State of Assam filed a review petition for review of the aforesaid order dated 18.12.2012 (Review Petition No. 21/2013). Various other parties also filed review petitions. 13. On 05.08.2013, a Division Bench of this Court after noting that the principal Act has been declared as ultra-vires and also about filing of review petitions, deferred the hearing of the case. Subsequently, this writ petition was tagged alongwith the review petitions. 14. The review Court by judgment and order dated 20.12.2013 allowed the review petition filed by the State. The order dated 18.12.2012 passed in WP(C) No. 1526/2012 and other connected cases was recalled. The writ petitions/writ appeals out of which the review petitions arose were restored to their respective files before the Division Bench for decision on merit. 15. 14. The review Court by judgment and order dated 20.12.2013 allowed the review petition filed by the State. The order dated 18.12.2012 passed in WP(C) No. 1526/2012 and other connected cases was recalled. The writ petitions/writ appeals out of which the review petitions arose were restored to their respective files before the Division Bench for decision on merit. 15. The order dated 18.12.2012 which declared the 1991 Rules as well as the 2003 Rules as unconstitutional, null and void was reviewed and recalled primarily on the ground that a Full Bench of this Court in WA No. 131/2010 (Jamaluddin Ahmed v. State of Assam & Ors.) and other connected cases vide the order dated 20.12.2011 had already gone into the validity of the aforesaid Rules holding the Rules to be intra-vires. 16. Accordingly, the writ petition is now before the Division Bench for decision on merit. 17. Learned Senior Counsel for the petitioner submits that in the above circumstances, petitioner would confine his challenge to the legality and validity of the order dated 21.08.2012. Elaborating his challenge, he submits that the impugned order is not valid for two reasons. Firstly, it is in violation of the Full Bench decision in Jamaluddin Ahmed. In the said judgment, the Full Bench while upholding the constitutionality of the 1982 Rules as well as the 2003 Rules held that the 1982 Rules did not contemplate own request inter-school transfer. But the 2003 Rules makes it explicit that in case of request transfer, the incumbent would lose past seniority. However, the Full Bench made it clear that in cases where seniority following inter-school transfer have attained finality, those should not be reopened on the basis of the said decision. Mr. Das, learned Senior Counsel would therefore contend that petitioner's seniority following his inter-school transfer had attained finality and therefore the Departmental Secretary was not justified in disturbing the same. Secondly, learned Senior Counsel submits that petitioner's seniority has been changed vide the impugned order purely on the basis of surmises and conjectures. There is nothing on record to show that petitioner's transfer to the present School was a request transfer. 18. On the other hand, learned Standing Counsel as well as learned Counsel for respondent No. 5 support the impugned order dated 21.08.2012 and submit that the impugned order is based on good reasoning and does not warrant any interference. 19. There is nothing on record to show that petitioner's transfer to the present School was a request transfer. 18. On the other hand, learned Standing Counsel as well as learned Counsel for respondent No. 5 support the impugned order dated 21.08.2012 and submit that the impugned order is based on good reasoning and does not warrant any interference. 19. Before we examine the rival contentions, we may refer to the Full Bench decision in Jamaluddin Ahmed. 20. As already noticed above, the 1982 Rules as well as the 2003 Rules were under challenge before the Full Bench. The issue for consideration was whether a teacher governed by the aforesaid Rules would forfeit past service rendered in the previous school in the event of request transfer. 1982 Rules is silent in this regard whereas such a provision is explicit in the 2003 Rules. The Full Bench held that 1982 Rules did not contemplate own request transfer which is made explicit in the 2003 Rules by declaring that in such eventuality there would be loss of past service which would not be counted for seniority. The 2003 Rules was thus declared to be a clarificatory law, clarifying the 1982 Rules. However, notwithstanding the above, the Full Bench made it clear that in cases where seniority following inter-school transfer have attained finality, those should not be re-opened on the basis of the said decision. The Full Bench held as under:-- "73. We are, thus, of the unhesitant opinion that own request inter-school transfers were not contemplated under the 1982 Rules either in public interest or in administrative exigency. The 2003 Rules carries the same mandate explicitly enjoining the consequence of loss of past services for seniority of the incumbent concerned in such an eventuality. A perceptible continuum of this legislative ordainment persists to effectuate the retrospectively of the 2003 Rules to remedy the purported state of ambiguity, in determinability and the consequential inconsistency in approach of the State authorities on the issue opposed to the letter and spirit of the 1982 Rules. The 2003 Rules essentially is thus a clarificatory law and is held to be retrospective in operation on and from the date of enactment of the 1982 Rules. The 2003 Rules essentially is thus a clarificatory law and is held to be retrospective in operation on and from the date of enactment of the 1982 Rules. This determination, notwithstanding, as we are conscious that as on date, the issue of own request inter-school transfer after the 1982 Rules, has meanwhile been finally settled in many cases including those of several incumbents who since retired from service with their entitlements accordingly computed, we order that such cases would not be reopened on the basis of this verdict. In other words, cases where departmental orders securing seniority even on such inter-school transfers have attained finality and no challenge thereto has been made before any judicial forum as on date as well as cases finally determined by a court of law sustaining such seniority the same would not be reopened on the basis of this verdict. 74. To reiterate, this adjudication has been made without reference to any particular fact situation and would be limited to the incumbents of the Assam Secondary Education (Provincialised) Service and at all relevant times governed by the provisions of the two Rules dealt with as above." 21. A careful reading of the above would indicate that the Full Bench clarified that in cases where departmental orders securing seniority following inter-school transfer have attained finality and no challenge thereto have been made before any judicial forum as well as in those cases where seniority has been sustained by a court of law, those should not be re-opened on the basis of the Full Bench verdict. 22. Having noticed the above, we may now turn our attention to the impugned order dated 21.08.2012. The impugned order has been passed following the order dated 19.03.2012 passed by a Single Bench of this Court in WP(C) No. 5000/2011 filed by the respondent No. 5. This Court had directed the Departmental Commissioner and Secretary to decide the dispute relating to seniority between the petitioner and respondent No. 5 after ascertaining whether transfer of the petitioner was as per his own request, keeping in mind the judgment in Jamaluddin Ahmed. 23. This Court had directed the Departmental Commissioner and Secretary to decide the dispute relating to seniority between the petitioner and respondent No. 5 after ascertaining whether transfer of the petitioner was as per his own request, keeping in mind the judgment in Jamaluddin Ahmed. 23. Following the above direction, the impugned order was passed, the relevant portion of which reads as under:-- "As per provision under Sub-rule (3) of rule 24 of the Assam Secondary Education (Provincialised) Service (Amendment) Rules of 2012 the seniority of a member of the service in the cadre who joins in a School otherwise than by direct recruitment i.e. on transfer or otherwise shall be determined as per the date of joining in the School in the concerned cadre. If a member joins in the School through transfer from other School, the seniority shall be determined from the date of his joining in the school in the concerned cadre and the seniority in earlier School or in the same School in a different cadre shall not be taken into account. In course of hearing, Sri Abdul Kalam Talukdar, Subject Teacher has stated that in the transfer order issued by the Director of Secondary Education, Assam containing Memo No. GB-EST/Apptt/Tran/17/92/5, dtd. 17.03.1992 there is no mention that the transfer was done at this own request. It is seen that the transfer order of Director of Secondary Education, Assam dated 17.03.1992 has not mentioned about the public interest or own request of the incumbent concerned. Hence, it is not understood whether said transfer order attracts the provision under SR 24(1) of the State FR & SR or not. As no TA and DA was provided to the respondent No. 4 during his transfer, it can be assumed that the transfer was given at his own request. It is seen that such assumption has already been made by the Director of Secondary Education, Assam vide Order No. DSE/Court Cell/Circular/12/2012/7 dated 21.03.2012. As per provision under Rule 12 of the Assam Service Education (Provnicialised) Service (Amendment) Rules of 2012, the minimum qualification for the post of Principal in HS School & HS & MP School the candidate must be (i) MA/M.Sc/M.Com with BT/B.Ed. As per provision under Rule 12 of the Assam Service Education (Provnicialised) Service (Amendment) Rules of 2012, the minimum qualification for the post of Principal in HS School & HS & MP School the candidate must be (i) MA/M.Sc/M.Com with BT/B.Ed. Degree from any recognized University (ii) the candidate must rendered at least 15 years of service as Post Graduate Teacher or Vice Principal or both in any HS School/HS & MP School (iii) the age must not be less than 40 years as on the first January in the year of recruitment. Now, it appears that Sri Abdul Hakim Khan possesses requisite qualification M.A., B.Ed. Degree and Sri Abul Kalam Talukdar is a simple post Graduate without B.Ed, degree. The date of birth of Sri Abdul Hakim Khan 01.01.1962 and the date of birth of Sri Abul Kalam Talukdar is 01.02.1964. Therefore, Sri Abdul Hakim Khan appears to be eligible for holding the post of Principal. In view of the above deliberations, it is found that Sri Abdul Hakim Khan, Subject Teacher is found to be senior to Sri Abul Kalam Talukdar, Subject Teacher and eligible for holding the post of Principal of Tarabari HS School, District Barpeta. Sri Abdul Hakim Khan is hereby allowed to hold the charge of Principal, Tarabari HS School and Director of Secondary Education, Assam is directed to issue necessary order accordingly." 24. Since there was a positive direction of this Court to decide the dispute, the Departmental Secretary was duty bound to comply with such direction which he did. The Full Bench had only clarified that seniority in those cases which have attained finality should not be reopened. In the present case, it cannot be said that seniority of petitioner vis-à-vis respondent No. 5 had attained finality. There was no decision or adjudication on the question of seniority. In the meanwhile, respondent No. 5 filed writ petition questioning seniority of petitioner. On remand by this Court, seniority has been determined. Therefore, the bar imposed by the Full Bench would not apply to the case in hand. There was no decision or adjudication on the question of seniority. In the meanwhile, respondent No. 5 filed writ petition questioning seniority of petitioner. On remand by this Court, seniority has been determined. Therefore, the bar imposed by the Full Bench would not apply to the case in hand. Secondly, it is well recognized in service law that when there is no mention of TA and DA in the transfer order of a Government employee or where TA and DA are not provided in the event of transfer, it would mean or the natural corollary would be that such transfer was as per request of the incumbent. If a transfer is made in public interest or in administrative exigency, the incumbent would be entitled to TA and DA. Therefore, the assumption of the Departmental Secretary that in the absence of TA and DA, transfer of petitioner was at his own request appears to be correct. Contention to the contrary is not tenable. It cannot be said that there is no rational basis to such assumption or that such finding is based on surmises and conjectures. Record was perused and parties were heard. Challenge to the impugned order dated 21.08.2012 therefore fails and the writ petition is accordingly dismissed but without any order as to cost. Status-quo order passed on 14.09.2012 stands vacated.