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2016 DIGILAW 1004 (GAU)

Satya Ranjan Chutia v. State of Assam

2016-11-16

UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Subject matter of both the writ petitions being inter-related, those were heard together on 11.11.2016 and are being disposed of today by this common order. 2. Heard Ms. D. Borgohain, learned counsel for the petitioner, Mr. J. Abedin, learned Standing Counsel, Elementary Education Department, Govt. of Assam and Mr. I. H. Saikia, learned counsel for respondent No. 5. 3. Basic grievance of the petitioner relates to his claim of seniority over respondent No. 5. Though such grievance of the petitioner has lost much significance following regular promotion granted to both petitioner and respondent No. 5 as Head Master of ME School, it is the contention of the petitioner that by virtue of his seniority, he ought to have been made Head Master of the School where he is serving and not made Head Master of another School. 4. At the outset, facts of the two cases may be briefly set out hereunder. 5. In WP(C) No. 3802/2014 petitioner has challenged legality and validity of order dated 28.07.2014 passed by the Director of Elementary Education, Assam allowing respondent No. 5 to be the In-charge Head Master of Duliajan Uccha Vidyalaya (ME) School after holding her to be senior in service than the petitioner. 6. While both petitioner and respondent No. 5 were serving as Assistant Teacher in the Duliajan Uccha Vidyalaya ME School (School), Director of Elementary Education, Assam passed an order dated 29.01.2013 allowing respondent No. 5 to be the In-charge Head Master of the School by holding her to be the senior most teacher of the School. Contending that petitioner was senior to respondent No. 5 and therefore ought to have been allowed to function as In-charge Head Master, petitioner approached this Court by filing WP(C) No. 938/2013. By order dated 21.05.2014, the said writ petition was disposed of by directing the Director of Elementary Education, Assam to reconsider the matter in the light of the discussions made therein and thereafter to take a fresh decision. Till such decision was taken status quo as regards charge of the Office of Head Master was directed to be maintained. 7. Thereafter, the impugned order dated 28.07.2014 was passed by the Director of Elementary Education, Assam. 8. Aggrieved, present writ petition has been filed. 9. Till such decision was taken status quo as regards charge of the Office of Head Master was directed to be maintained. 7. Thereafter, the impugned order dated 28.07.2014 was passed by the Director of Elementary Education, Assam. 8. Aggrieved, present writ petition has been filed. 9. On 08.08.2014 this Court had issued notice and passed an interim order directing maintenance of status quo as regard charge of the Office of the Head Master of the School. 10. During the pendency of WP(C) No. 3802/2014, 2 orders were passed by the Director of Elementary Education, Assam, both the orders being dated 09.10.2014. As per the first order (Annexure-11) respondent No. 5 was promoted from Assistant Teacher to Head Master and on such promotion was posted in the School itself. By the second order (Annexure-12), petitioner was promoted from Assistant Teacher to Head Master and on such promotion was posted in the Rohmoria Girls ME School. Both the orders came to be challenged by the petitioner in WP(C) No. 5605/2014. 11. This Court by order dated 05.11.2014 had issued notice and stayed both the orders dated 09.10.2014. Further it was directed that petitioner should be allowed to continue as In-charge Head Master of the School. 12. Respondent No. 5 has filed an application seeking vacation of the interim order dated 05.11.2014 passed in WP(C) No. 5605/2014. The said application has been registered as IA(C) No. 1344/2016. 13. Ms. D. Borgohain, learned counsel for the petitioner has strongly argued that petitioner is admittedly senior to respondent No. 5 in the School. Respondent No. 5 cannot get seniority over the petitioner in as much as her service was regularised on 15.03.1997 but such regularisation was given retrospective effect from 16.11.1991. This is admittedly illegal and also runs counter to the judgment of this Court dated 21.05.2014. Therefore, the decision of the Director of Elementary Education declaring respondent No. 5 to be senior to the petitioner is illegal and untenable. Referring to the provisions contained in Assam Elementary Education (Provincialisation) Service and Conduct Rules, 1981 (1981 Rules) and the Assam Government notification dated 02.03.2010 laying down the procedure for promotion to the post of Head Master of ME Schools, she submits that if the petitioner is senior to respondent No. 5 he would be entitled to a posting in the same School where he served as Assistant Teacher. Therefore, the respondents have committed a twofold error; firstly, by determining seniority of respondent No. 5 over the petitioner and secondly, by posting the petitioner in a different School on promotion to the post of Head Master though by virtue of his seniority he ought to have been posted in his own School. 14. On the other hand, Mr. J. Abedin, learned Standing Counsel submits that the seniority dispute between the petitioner and respondent No. 5 is no longer material in as much as both have been promoted to the post of Head Master. On promotion one cannot claim a posting of choice. It is entirely the discretion of the authority to post whom and where following promotion. 15. Supporting the submission of Mr. Abedin, learned Standing Counsel, Mr. Saikia, learned counsel for the respondent No. 5 submits that there is nothing in the 1981 Rules to even remotely suggest that an Assistant Teacher on being promoted to the post of Head Master should be posted in the same School where he is serving as Assistant Teacher. He submits that after regular promotion of both petitioner and respondent No. 5, staying of both the promotion orders and allowing the petitioner to function as In-charge Head Master of the School does not appear to be justified. He has also made submission justifying determination of seniority of respondent No. 5 w.e.f. 16.11.1991. 16. Submissions made by learned counsel for the parties have received the due consideration of the Court. 17. Though it is submitted at the Bar that following regular promotion of petitioner and respondent No. 5 to the post of Head Master, the dispute between the petitioner and respondent No. 5 relating to their inter se seniority has lost much of its significance, Court is of the view that since serious submissions have been made on this aspect of the matter, the same is required to be addressed. For proper appreciation, order dated 28.07.2014 passed by the Director of Elementary Education holding respondent No. 5 to be senior to the petitioner and thereafter allowing her to be the in charge Headmistress of the School is extracted hereunder:- "Read the order dated 21.05.2014, passed in WP(C) No. 938/2013 of Sri Satya Ranan Chutia v. State of Assam. Perused the relevant records of the case regarding seniority of the petitioner. Perused the relevant records of the case regarding seniority of the petitioner. The Hon'ble High Court vide its order dated 21.05.2014 directed that the Director of Elementary Education, Assam while issuing the impugned order dated 29.01.2013 did not consider the aspects of the matter as mentioned in the order dated 21.05.2014 & allowed the respondent No. 6 to hold the charge of the Head Master of the school in that view of the matter would now required fresh consideration of the DEE, Assam and accordingly the matter is remanded back to pass appropriate order determining the seniority between the petitioner and the respondent No. 6. The report submitted by the District Elementary Education Officer, Dibrugarh vide his letter No. DEO/Esstt./2014-15/708 dated 07.05.2014 wherein it is reflected that the date of effect for regularization of service of Respondent No. 6, Smt. Manju Prova Gogoi, Hindi Teacher was w.e.f. 16.11.1991 & Smt. Manju Prova Gogoi had received her salary w.e.f. 16.11.1991 & her service was also confirmed by the then District Elementary Education Officer, Dibrugarh vide order dated 01.03.2005. Hence the services of the respondent No. 6 Smt. Manju Prova Gogoi has to counted from the date of regularisation of service i.e. from 16.11.1991. But Sri Satya Ranjan Chutia, Science Graduate Teacher had joined in the said school on 03.01.1992. It needs to be stated that the seniority of teacher is counted on the basis of the date of regularization of services but not from the date of confirmation of services. As the services of Smt. Manju Prova Gogoi, Hindi Teacher was regularised w.e.f. 16.11.1991 as per the order of the DEEO, Dibrugarh vide No. 6287-92 dated 15.03.1997. As such Smt. Manju Prova Gogoi, Hindi Teacher is the senior in service than Sri Satya Ranjan Chutia, Science Graduate Teacher. In view of the above, it is hereby ordered to allow Smt. Manju Prova Gogoi to take over charges of i/c Head Mistress of Duliajan Uccha ME School immediately. The DEEO, Dibrugarh will take necessary steps in this regard immediately. This is issued in compliance of the order of the Hon'ble High Court dated 21.05.2014 passed in WP(C) No. 938/2013. Sd/ U. C. Das Director, Elementary Education Assam Kahilipara, Guwahati-19 Memo No. EHA(B).36/2013/100 Dated Kahilipara, the 28th July/2014" 18. Before analysing the aforesaid order, it would be apposite to refer to the order passed by this Court on 21.05.2014 in WP(C) No. 938/2013. Sd/ U. C. Das Director, Elementary Education Assam Kahilipara, Guwahati-19 Memo No. EHA(B).36/2013/100 Dated Kahilipara, the 28th July/2014" 18. Before analysing the aforesaid order, it would be apposite to refer to the order passed by this Court on 21.05.2014 in WP(C) No. 938/2013. As already noticed above, the said writ petition was filed by the petitioner to challenge the legality and validity of the order dated 29.01.2013 passed by the Director of Elementary Education allowing respondent No. 5 to be the In-charge Head Master of the School by contending that petitioner was senior to respondent No. 5. The Court noticed that the whole controversy had arisen because of regularization of service of respondent No. 5 w.e.f. 16.11.1991. However, the Court did not intervene in the matter of retrospective regularisation though observed that such regularisation was as intermediate teacher and that such retrospective regularisation could be for purpose other than determination of seniority, such as, computation of pensionery benefits etc. Thereafter, the Court remanded the matter back to the Director of Elementary Education to take a fresh decision relating to claim of inter se seniority between petitioner and respondent No. 5. Following the same, the impugned order dated 28.07.2014, as extracted above, was passed. 19. From a perusal of the impugned order dated 28.07.2014, it is seen that petitioner had joined the School on 03.01.1992. On the other hand, service of respondent No. 5 was regularised w.e.f. 16.11.1991 as per order of the District Elementary Education Officer, Dibrugarh dated 15.03.1997. In this context, Director of Elementary Education has held respondent No. 5 to be senior to the petitioner and accordingly allowed her to be the In-charge Head Master of the School. 20. The order of the District Elementary Education Officer, Dibrugarh dated 15.03.1997 has not been questioned before any forum by the petitioner. Unless a Court declares the said order to be illegal and quashes the same or declares the same to be of no legal consequence or a higher administrative authority takes a contrary view, the said order cannot simply be wished away; it is there in the record. Merely because a view is taken that the order dated 15.03.1997 may not be legally tenable would not be sufficient to bypass or ignore such an order. If that be so, no fault can be found with the order dated 28.07.2014. 21. Merely because a view is taken that the order dated 15.03.1997 may not be legally tenable would not be sufficient to bypass or ignore such an order. If that be so, no fault can be found with the order dated 28.07.2014. 21. Moving ahead, it is seen that 3 months after passing of the order dated 28.07.2014, Director of Elementary Education, Assam passed separate orders dated 09.10.2014 promoting both petitioner and respondent No. 5 to the post of Head Master. While respondent No. 5 has been posted as Head Master of the School on promotion, petitioner has been posted as Head Master of Rohmoria Girls ME School on such promotion. 22. A perusal of the two promotion orders would go to show that both petitioner and respondent No. 5 were selected for such promotion by the District Level Selection Committee, Dibrugarh. 23. However, it is submitted at the Bar that because of the interim order passed by this Court, petitioner is serving as In-charge Head Master of the School whereas respondent No. 5 is serving as Assistant Teacher of the said School. 24. As per Rule 5 of the 1981 Rules, the post of Head Pandit (read Head Master) is a promotional post and such promotion is made on the basis of recommendation of a Sub-Divisional Selection Committee to be constituted by the Director of Elementary Education. Recommendation is made on the basis of seniority cum efficiency. To supplement the 1981 Rules, Government of Assam in the Elementary Education Department issued notification dated 02.03.2010 laying down the procedure for promotion to the post of Head Master of ME/ME Madrassa/MV and Senior Basic Schools. It is mentioned that the post of Head Master of ME/MEM/MV/Senior Basic School is a promotional post. Such appointment by way of promotion is made on the basis of seniority cum efficiency following recommendation of the District Level Selection Committee to be constituted by the Director of Elementary Education, Assam. It further provides for preparation of a Sub-division wise gradation list of teachers in order of seniority. Eligibility for such promotion is having 10 years of continuous service as teacher. The committee is required to prepare a panel of selected teachers which shall remain valid for 1 year from the date of selection. 25. Thus for the purpose of such promotion a Sub-division wise gradation list of teachers is required to be prepared. Eligibility for such promotion is having 10 years of continuous service as teacher. The committee is required to prepare a panel of selected teachers which shall remain valid for 1 year from the date of selection. 25. Thus for the purpose of such promotion a Sub-division wise gradation list of teachers is required to be prepared. While preparing such Sub-division wise gradation list, it could very well be the case that the senior most teacher could be from a school where the post of Head Master is not vacant. If the senior most teacher in the Sub-division wise gradation list is found to be eligible for promotion to the post of Head Master, he cannot be denied promotion on the ground of there being no vacancy in the post of Head Master in his school. Natural corollary to this would be that such an Assistant Teacher would be posted as Head Master on promotion in a school where the post of Head Master is vacant. That apart, from a careful reading of the provisions of the 1981 Rules and the Government notification dated 02.03.2010 it is quite evident that the Rules and the notification nowhere provides that on promotion to the post of Head Master one has to be invariably posted in the School where he was the Assistant Teacher. 26. Learned Standing Counsel is right in saying that a promotee cannot insist on a particular posting on promotion. Transfer and posting of Government servant is entirely within the discretion of the administrative authority and such transfers and postings are carried out having regard to the administrative exigencies and the public interest. 27. Moreover, when regular promotions have been made to the post of Head Master in two schools, staying such promotions and allowing an ad-hoc arrangement to continue in the form of In-charge Head Master cannot be justified. It would be opposed to the interest of the Schools and the students. Furthermore, no prejudice has been caused to the petitioner by his posting in the Rohmoria Girls ME School as petitioner has been posted there by virtue of his promotion as Headmaster. 28. Having regard to the above, Court is of the view that the restraint orders are required to be vacated so that regular promotion orders can take effect which would be in the best interest of both the institutions and the students. 29. 28. Having regard to the above, Court is of the view that the restraint orders are required to be vacated so that regular promotion orders can take effect which would be in the best interest of both the institutions and the students. 29. In that view of the matter, stay orders passed in both the writ petitions are vacated and both the writ petitions are dismissed.