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2015 DIGILAW 649 (GAU)

Md. Nurul Islam v. State of Assam

2015-05-28

MANOJIT BHUYAN

body2015
JUDGMENT : 1. Heard Ms. D. Borgohain , learned counsel for the petitioner as well as Mr. R.M. Deka, learned counsel representing Respondent Nos. 1, 2, 3 & 4. Also heard Mr. H. Das, learned counsel representing Respondent No. 5. 2. The petitioner i.e. Md. Nurul Islam was appointed as a Hindi Teacher at Dhing Gaon M.E.M. on 08.12.1978 by the Managing Committee of the said school. Pursuant to provincialisation of the said school on 01.02.1985, the services of the petitioner was provincialised alongwith the Private Respondent No. 5. In course of time, he was transferred to Shalpara M.E.M. and thereafter upon his selection by the Sub Divisional Level Selection Board, Nagaon he was promoted to the post of Headmaster and was transferred to Dhing Gaon M.E.M. vide Order dated 03.09.2009. 3. The said Order of 03.09.2009 was put to challenge by the Respondent No. 5 in WP(C) 3844/2009. While an order of status-quo was directed to be maintained by Order dated 14.09.2009 passed in the said WP(C) 3844/2009, however the same stood vacated by subsequent Order dated 18.09.2009. The final disposal of the said writ petition came about on 22.09.2011, whereby the Director of Elementary Education, Assam was directed to hold an enquiry into the question of inter se seniority between the petitioner therein (Respondent No. 5 herein) and the petitioner in the instant case after affording adequate opportunity to both the parties to present their respective cases. A further direction was made that until such time a decision is taken, status-quo as obtaining on that date will be maintained in respect of the office of the Headmaster of Shalpara M.E. Madrassa at Dhing, Nagaon. 4. Pursuant to the Court’s Order dated 22.09.2011 due enquiry was made after affording opportunity to both the parties and by Order dated 17.03.2012, the Director of Elementary Education, Assam arrived at the conclusion that there has been an error in the Selection List of Assistant Teacher / Hindi Teacher of M.E.M. for promotion as Head Master on account of the fact that going by the initial date of joining in service and the dates on which the respective parties had obtained adhoc grant, Respondent No. 5 i.e. Md. Abdur Rashid Khan was senior to the petitioner. Abdur Rashid Khan was senior to the petitioner. Accordingly, the order impugned in the present proceedings was passed to the effect that the promotion of the petitioner as Headmaster of Dhing Gaon M.E.M. issued by Office Order dated 03.09.2009 stands cancelled and that he be reverted to his original post as Hindi Teacher. On the other hand, the Respondent No. 5 Md. Abdur Rashid Khan was allowed to act as Incharge Headmaster of Dhing Gaon M.E.M. school until such time he was promoted to the regular post of Headmaster. 5. The said Order dated 17.03.2012 is now put to challenge. 6. Ms. D. Borgohain, learned counsel for the petitioner submits that it is an admitted position that both the petitioner and the Respondent No. 5 had been selected by the Sub Divisional Level Selection Board for promotion to the post of Headmaster. To this end, reference is made to the document at Annexure-R/3 to the affidavit-in-opposition filed by the Respondent No. 2, which is the Selection List of Assistant Teacher /Hindi Teacher of M.E.M. schools eligible for promotion as Headmaster /Headmistress. In the said Select List dated 28.01.2009, the name of the petitioner figures at Sl. No. 5 whereas the name of the Respondent No. 5 figures at Sl. No. 11. Undoubtedly, this list in so far as the petitioner and Respondent No. 5 are concerned has been interfered with, pursuant to directions of this Court by means of the Office Order dated 17.05.2012 so assailed in the present proceedings. Notwithstanding the interference so made, Ms. D. Borgohain submits that considering the date of joining as reflected in the said List dated 28.01.2009 the name of the Respondent No. 5 should now figure at Sl. No. 4 and the petitioner at Sl. No. 5. Situated thus, Ms. D. Borgohain contends that having been selected by the Sub Division Level Advisory Board for promotion as Headmaster the impugned Order dated 17.03.2012 reverting him to the original post as Hindi Teacher was not warranted. Ms. D. Borgohain further submits that being selected for promotion the proper step for the Respondent Authority ought to have been for exploring the possibility of giving promotion to the post of Headmaster in any vacant post as per the procedure adopted by the Education (Elementary) Department for promotion to the post of Headmaster of ME senior/MEM/MV/Senior Basic schools. Ms. D. Borgohain further submits that being selected for promotion the proper step for the Respondent Authority ought to have been for exploring the possibility of giving promotion to the post of Headmaster in any vacant post as per the procedure adopted by the Education (Elementary) Department for promotion to the post of Headmaster of ME senior/MEM/MV/Senior Basic schools. The petitioner has also brought on record that although appointment to the post of Headmaster is to be made strictly on the basis of seniority-cum-efficiency and recommendation of the Selection Board, the list so prepared on 28.01.2009 on the basis of the criteria laid down was not followed and instance was also given, supported by documents, to show that a person who had joined on a date later than the petitioner had been granted the benefit of promotion. The sum and substance of the petitioner’s case is that instead of being reverted to the original post of Hindi Teacher, steps ought to have been taken for giving due weightage and respect to the Select List dated 28.01.2009. 7. Mr. R.M. Deka, learned State Counsel on the other hand submits that the aforesaid Select List dated 28.01.2009 had never been disturbed. Also, inclusion of name in the Select List will not give an indefeasible right for promotion to the post of Headmaster. 8. Although the submission made by Mr. R.M. Deka appears to be cogent, however, from the materials available on record the picture is quite different. It is not a case, as urged by Mr. R.M. Deka, that the Select List of 28.01.2009 had never been disturbed. Be that as it may, the anomalies and deficiency in respect of disturbance made to the said Select List of 28.01.2009 is not taken-up in the present proceedings. 9. Mr. H. Das, learned counsel representing the Respondent No. 5 submits that Md. Abdur Rashid Khan despite being selected by the Sub Divisional Level Advisory Board for the post of Headmaster had to retire without getting any benefit out of the said selection. According to Mr. Das the Respondent No. 5 retired from service on 30.09.2014. 10. It appears from the Order dated 28.03.2012 passed in the present proceedings that status-quo with regard to the post of Headmaster at Dhinggaon M.E.M. was directed to be maintained. According to Mr. Das the Respondent No. 5 retired from service on 30.09.2014. 10. It appears from the Order dated 28.03.2012 passed in the present proceedings that status-quo with regard to the post of Headmaster at Dhinggaon M.E.M. was directed to be maintained. The petitioner submits that by virtue of the said Court’s Order dated 28.03.2012 the petitioner has been discharging duties as Headmaster of Dhing Gaon M.E.M.. In so far as the aspect of seniority between the petitioner and the Respondent No. 5 is concerned, the petitioner concedes to the extent that the Respondent No. 5 had joined on an earlier date, save and except, with regard to date of receiving adhoc grant. According to the petitioner, adhoc grant was granted w.e.f. 01.04.1979 and the same was uniformly applied to all the teachers of the school including the petitioner and the Respondent No. 5. 11. The issue with regard to inter se seniority between the petitioner and the Respondent No. 5 although it has now lost significance in view of the fact that the Respondent No. 5 have already retired from service on 30.09.2014, the issue that remains to be decided is as to whether it was proper on the part of the Respondent No. 2 to revert the petitioner to his original post as Hindi Teacher. 12. As discussed above the petitioner is a duly selected candidate and found eligible for promotion to the post of Headmaster. As such instead of reverting the petitioner to the original post of Hindi Teacher, it was necessary for the Respondent No. 2 to first explore the possibility of accommodating the petitioner to the post of Headmaster in any school where there was a vacancy. That exercise not having been taken and instead reverting the petitioner to the original post of Hindi Teacher was not proper and called for. In any case, as on date the petitioner is holding the post of Headmaster at Dhing Gaon M.E.M. and is receiving pay and allowance as admissible to a Headmaster of a school. 11. The impugned Order dated 17.03.2012, in so far as reverting the petitioner to his original post of Hindi Teacher is concerned, stands interfered with. 12. Accordingly, this writ petition stands disposed of in terms of the above.