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2016 DIGILAW 129 (TRI)

Kamala Bhattacharjee v. State of Tripura

2016-06-15

C.DAS

body2016
JUDGMENT : On the prayer of learned counsel of the parties, the writ petition was taken up for hearing and disposal at the admission stage itself. 2. By filing this writ petition, the petitioner prayed for allowing her the following reliefs: I. Issue Rule upon the respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby quashing and can celling the letter of appointment issued by the Secretary, Managing Committee, Harchandra Class XII School, Manikbhander, vide Letter No.F.HHS(610)/S/2013/4006A, dated 05/08/2013, appointing the Respondent No8 in the Post of Asst. Headmaster of Harchandra Class XII School, Manikbhander. II. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby quashing and cancelling the Memo No.F.15(128)SE/GIA/2012/8881, dated 21/08/2013 issued by the Addl. Secretary and Director, School education, Tripura, approving acceptance of joining report of Respondent No8 to the Post of Asst. Headmaster of Harchandra Class XII School, Manikbhander, w.e.f. 06/08/2013. III. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby quashing and cancelling the Memo No.F.15(128)SE/GIA/2012, dated, 09/08/2013, issued by the Joint Director, School Education, Govt. of Tripura, according approval to the proposal of the Secretary of the Managing Committee of Harchandra Class XII School, Manikbhander, to fill up one vacant post of Headmaster, by promotion of Sri Sambhu Chandra Lodh, i.e. Respondent No8. IV. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby directing the Respondents No1 to 7 to treat the Petitioner senior to the Respondent No8 in the post of Asst. Teacher, Harchandra Class XII School, Manikbhander, taking into account the service rendered by the Petitioner as Asst. Teacher in Fatikroy Class XII School, before joining Harchandra Class XII School, Manikbhander as Asst. Teacher. V. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby direction/declaration to the effect that, Rule5(ii) of the Tripura GraninAid (Govt. Teacher in Fatikroy Class XII School, before joining Harchandra Class XII School, Manikbhander as Asst. Teacher. V. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby direction/declaration to the effect that, Rule5(ii) of the Tripura GraninAid (Govt. Aided Schools) Rules, 2005 is not applicable so far the determination of the Petitioner visàvis the Respondent No8 is concern. VI. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby directing the Respondents No2 to 7 to remove pay anomaly by stepping up of the pay and allowances of the Petitioner to make it at par with the pay and allowance of the Respondent No8. VII. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby directing the Respondents No1 to 7 to promote the Petitioner to the post of AHM, Harchandra Class XII School, Manikbhander, w.e.f. the date on which the Respondent No8 was illegally promoted to the said post of Asst. Headmaster. VIII. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby directing the Respondent No.5 to act in compliance with the instructions given by the Respondent No.2 vide letter, dated 11.05.2015 for issuing order fixing/stepping up of pay of the Petitioner to make it at par with the Respondent No8. IX. Issue Rule upon the Respondents to show cause as to why a writ in the nature of Mandamus and/or Order/Orders, Direction/Directions of like nature shall not be issued whereby directing the Respondent No.5 to declare the appointment of the Respondent No.8 to the post of Asstt. Headmaster of Harchandra Class XII School is void and illegal. 3. Heard learned Sr. counsel, Mr. S. Deb assisted by learned counsel, Mr. P. Roy Barman and Mr. S. Bhattacharjee for the petitioner; learned Addl. G.A., Mr. S. Chakraborty for the respondent Nos. 1 and 2; learned Sr. counsel, Mr. P.K.Biswas assisted by learned counsel, Ms. P. Mog and Mr. P. Majumder for the respondent Nos. 3, 5, 6 and 8; learned counsel, Mr. counsel, Mr. S. Deb assisted by learned counsel, Mr. P. Roy Barman and Mr. S. Bhattacharjee for the petitioner; learned Addl. G.A., Mr. S. Chakraborty for the respondent Nos. 1 and 2; learned Sr. counsel, Mr. P.K.Biswas assisted by learned counsel, Ms. P. Mog and Mr. P. Majumder for the respondent Nos. 3, 5, 6 and 8; learned counsel, Mr. D. Bhattacharjee for the respondent No.4 and learned counsel, Mr. T. Dutta Majumder for the respondent No.7. 4. Several sets of affidavits-in-opposition have been filed by the respondents. Respondent Nos. 1 and 2 filed a joint affidavit-in-opposition on 30.04.2016. Respondent Nos. 3 and 5 also filed a joint affidavit-in-opposition by the same person on 15.03.2016. Respondent No.4 filed an affidavit-in-opposition on 14.01.2016. Respondent Nos. 6 and 8 also filed a joint affidavit-in-opposition by the same person on 14.03.2016. Respondent No.7 filed a separate affidavit-in-opposition on 04.01.2016. 5. Undisputed facts are (i) The petitioner is an honour’s graduate in English and subsequently obtained Master degree in English from IGNOU and joined Fatikroy Class XII School as Assistant Teacher on 28.12.1979 through due process. (ii) Pursuant to an advertisement made by Harchandra Class XII School at Manikbhander for filling up of the post of Asst. Teacher, the petitioner applied and she was the single candidate and got selection. Offer of appointment was issued to her by the Administrator of Harchandra Class XII School on 07.08.1986 (Annexure - P/2 to the writ petition). (iii) She submitted her resignation from Fatikroy Class XII School on 24.09.1986 in the afternoon and joined Harchandra Class XII School on 25.09.1986. (iv) Fatikroy Class XII School and Harchandra Class XII School, Kamalpur were/are privately managed schools under the GrandinAid Scheme/Rule of the Govt. of Tripura. (v) Respondent No.8 joined Harchandra Class XII School as Asst. Teacher on 04.12.1981. 6. Respondent Nos. 1 and 2, with their counter affidavit submitted a copy of the Tripura Grand In Aid (Government Aided Schools) Rules, 2005 as Annexure-R/4. Rule 3(d) of the Rules prescribes that there should be Managing Committee duly approved by the Tripura Board of Secondary Education, for having the status of Government GrantInAided School. Rule 5 of the GrantinAid Rules prescribes the function of the Managing Committee which reads as follows: “5. Rule 3(d) of the Rules prescribes that there should be Managing Committee duly approved by the Tripura Board of Secondary Education, for having the status of Government GrantInAided School. Rule 5 of the GrantinAid Rules prescribes the function of the Managing Committee which reads as follows: “5. FUNCTION OF THE MANAGING COMMITTEES: A duly approved Managing Committee or in its absence, the Administrator, shall have the following functions among other things: i) Appointment to all teaching & nonteaching employees including Headmaster/Headmistress and Assistant Headmaster/Assistant Headmistress shall be made in accordance with the direction given by the Director of School Education and on the basis of the recommendation of the duly constituted Selection Board/Departmental Promotion Committee (DPC). No appointment shall be made unless it is duly approved by the Director of School Education who shall obtain approval of the Education (School) Department including Finance Department wherever needed; ii) Appointment to the post of Headmaster/ Headmistress/ Assistant Headmaster/ Assistant Headmistress and Upper Division Clerk shall be made on promotion through the duly constituted Departmental Promotion Committee (DPC). Promotion shall be made strictly according to the senioritycum merit and the Managing Committee shall maintain a seniority list caterogrywise both for the teaching and nonteaching employees on the basis of the criteria being followed in Government schools and Offices. Promotion shall be made strictly according to the senioritycum merit and the Managing Committee shall maintain a seniority list caterogrywise both for the teaching and nonteaching employees on the basis of the criteria being followed in Government schools and Offices. If any inservice teaching or nonteaching employee comes from another unit or school and joins services in any privately managed school, his/her position in the seniority list will be determined with effect from the date he/she joins the service in the new school; iii) Appointment to all categories of posts both by direct recruitment and promotion shall be made strictly following all provisions of the Recruitment Rules finalized by the Education (School) Department for these categories of posts in Government schools; iv) The constitution of Selection Board and the Departmental Promotion Committee (DPC) shall be made following the provisions applicable in State Government and only after it is duly approved by the Director of School Education; v) The age of retirement on superannuation of all teaching and non-teaching employees including GroupD employees in privately managed school shall be same as applicable in Government schools; vi) The Managing Committee shall have to follow all existing provisions and procedure of the State Government in regard to reservations and for filling up of the vacant posts; vii) Rates of different fees to be collected from the students shall be decided only with the prior approval of the Director of School Education; viii) All reports and returns as required shall be submitted to the Director of School Education or to any other government Department within the prescribed time limit; ix) Regular meeting of the Managing Committee at least once in every two months; x) All other provisions as mentioned in the rules for Management of recognized NonGovernment Institutions (Aided and nonAided) Rules, 1969 of West Bengal as adopted by the Tripura Board of Secondary Education shall equally be applicable and the Managing Committees are required to follow all such provisions strictly.” 7. It is an admitted position that the appointment, promotion, seniority and other conditions of service etc.of privately managed GrantinAid Schools are to be determined by the Managing Committee of the Schools subject to approval by the Director of School Education. 8. It is an admitted position that the appointment, promotion, seniority and other conditions of service etc.of privately managed GrantinAid Schools are to be determined by the Managing Committee of the Schools subject to approval by the Director of School Education. 8. After carefully going through the pleadings of the petitioner and the documents annexed thereto as well as going through the pleadings of the respondents in their respective counter affidavits and the documents annexed thereto, I am of considered opinion that this Court is required to give finding on the following points: (i) Point No. I Whether the petitioner was given pay protection on her joining Harchandra Class XII School after her resignation from Fatikroy Class XII School? (ii) Point No. II – Whether stepping up of the petitioner was allowed at par with respondent No.8? (iii) Point No.III – Whether continuity in service of the petitioner was allowed after her joining Harchandra Class XII School and whether because of pay protection and because of stepping up of pay, the petitioner is entitled to claim continuity in service? (iv) Point No. IV—Whether seniority of the petitioner visa vis respondent No.8 was determined in due process and whether the petitioner is entitled to get a declaration that she is senior to respondent No.8? (v) Point No. V Whether the appointment of respondent No.8 in the post of Assistant Headmaster of Harchandra Class XII School was vitiated for his participation in the meeting of Managing Committee and Departmental Promotion Committee? (vi) Point No.VI – Whether respondent Nos. 1 to 7 should be directed to give promotion to the petitioner in the post of Assistant Headmaster in the Harchandra Class XII School? 9. Since the pleadings of the parties are exhaustive and lengthy, I would like to refer the relevant part of the pleadings while deciding the points formulated and also shall refer to the particular documents annexed by the parties. 10. Point No. I Whether the petitioner was given pay protection on her joining Harchandra Class XII School after her resignation from Fatikroy Class XII School? 10.1 The petitioner contended that she appeared before the interview board of Harchandra Class XII School on receipt of the call letter and she was the only candidate for the post advertised by the School. Point No. I Whether the petitioner was given pay protection on her joining Harchandra Class XII School after her resignation from Fatikroy Class XII School? 10.1 The petitioner contended that she appeared before the interview board of Harchandra Class XII School on receipt of the call letter and she was the only candidate for the post advertised by the School. She approached the members of the board that she should be given the benefit of seniority and pay protection and all other service benefits and otherwise she will not join the post. She was assured by the interview board that she should be given the same and thereafter offer of appointment was issued and since she was assured by the interview board that she will be given pay protection, seniority and other service benefits, she resigned from Fatikroy Class XII School on 24.09.1986 and joined Harchandra ClassXII School on 25.09.1986. She has also claimed that her service book and CPF were sent from Fatikroy Class XII School to Harchandra ClassXII School and LPC (Last Pay Certificate) was also issued to her by Fatikroy ClassXII School showing her last pay fixed at Rs.740/in the payscale of Rs.6001440/and she had submitted the LPC (Annexure-P/7 to the writ petition) to the Harchandra ClassXII School on her joining and thereafter the Administrator of Harchandra ClassXII School by Memo dated 08.11.1986 (Annexure-P/8 to the writ petition) fixed her basic pay at Rs.740/as per LPC in the scale of Rs.6001440/. 10.2. Respondent Nos. 1 and 2 in their counter affidavit did not state anything material regarding the pay protection of the petitioner. 10.3. Respondent No.4 stated that at that relevant point of time there was no Managing Committee of the School and one Administrator G.C. Roy was looking after the management of the School. The School was suffering from dearth of eligible teachers and at that time the petitioner was selected and appointed. After her appointment in Harchandra Class XII School, her basic pay was fixed at Rs.740/. 10.4 Respondent Nos. 3, 5, 6 and 7 denied the contention of the petitioner that she claimed pay protection, seniority and other service benefits and that of any commitment made by the interview board/selection committee that she should be given pay protection, service benefit and seniority, etc. 10.4 Respondent Nos. 3, 5, 6 and 7 denied the contention of the petitioner that she claimed pay protection, seniority and other service benefits and that of any commitment made by the interview board/selection committee that she should be given pay protection, service benefit and seniority, etc. It is further contended by these respondents that the petitioner resigned from Fatikroy Class XII School, a privately managed School and she joined new School in Harchandra Class XII School and thereafter her past services at Fatikroy School had no connection with her subsequent joining in the new School and she was not entitled to the benefit of her past services as well as the pay protection etc. There was nothing in the offer of appointment that she should be given all those benefits. They also contended that the then Headmaster of the School wrongly fixed the pay of the petitioner at Rs.740/in the pay scale of Rs.6001440/and her pay ought to be fixed at Rs.600/on her joining the Harchandra ClassXII School. The said respondents referred to a letter dated 16.10.2014 by the Deputy Director of School Education from the Office of the Director of School, marked as Annexure-R/1 to the counter affidavit wherein it was observed that the fixation was wrong and that her prayer for stepping up was also not allowed. 10.5 It is an admitted position that the petitioner on her selection as an Assistant Teacher of Harchandra Class XII School, resigned from Fatikroy Class XII School and joined Harchandra Class XII School on 25.09.1986. She did not pray for any lien. Her contention that she claimed her pay protection, seniority and other service benefits is a disputed fact and there is no document to support it. Annexure-P/2 to the writ petition is the offer of appointment issued in the name of the petitioner by Harchandra Class XII School and in that offer of appointment there is no stipulation at all that she should be given pay protection, seniority and other benefits. The offer of appointment was given stating that she should be paid in the pay scale of Rs.6001440/. The petitioner brought on record that her service book and her CPF were sent by Fatikroy Class XII School to Harchandra Class XII School. The offer of appointment was given stating that she should be paid in the pay scale of Rs.6001440/. The petitioner brought on record that her service book and her CPF were sent by Fatikroy Class XII School to Harchandra Class XII School. Pursuant to her LPC issued by Fatikroy Class XII School , the Administrator of Harchandra Class XII School while issuing letter of appointment dated 08.11.1986 (Annexure-P/8 to the writ petition) fixed her salary in the basic pay of Rs.740/taking into account her LPC issued by Fatikroy Class XII School and thereby she was given the pay protection. The contents of Annexure-P/8 reads as follows: “Harchandra Class XII School, P.O. Manikbhandar, North Tripura. Ref. No.HHS(6K)/Adm/86/2573 Dated, Manikbhandar, the 8th November, 1986. LETTER OF APPOINTMENT From The Administrator, Harchandra Class XII School, P.O. Manikbhander, North Tripura. To Smt. Kamala Bhattacharjee, B.A. Hons. in English, D/o. Sri Jyotirmay Bhattacharjee, C/o. Sri Saradindu Chakraborty, Advocate, Manikbhander, North Tripura. Madam, In pursuance of Resolution No.10/86 dated 8.10.86 adopted by the undersigned, you are hereby appointed to the post of Assistant Teacher in English of Harchandra Class XII School, P.O. Manikbhandar, North Tripura as per terms and conditions laid down in the offer of appointment issued vide this school’s office reference No.HHS(6K)/Adm/86/2489 (2) dated 7.8.86 with effect from 2591986 (forenoon) in the scale of pay of Rs.6003595040990451440/plus admissible allowances on a monthly basic pay of Rs.740’00 as per L.P.C. issued from your previous employer. Yours faithfully, Sd/ Administrative, Harchandra Class XII School, P.O. Manikbhander, Tripura (N).” 10.6 In ordinary course while a government servant resigns from a particular service/post and joins to another service/post, such government servant cannot as of right claim the benefit of earlier service unless it was legally permissible as per Rules or the particular government servant was on lien. Annexure- R/1 to the counter affidavit of respondent Nos. 3 and 5, issued from the office of the Director of School Education by the Deputy Director i.e. letter dated 16.10.2014 addressed to the Secretary Harchandra Class XII School reads as follows: “GOVERNMENT OF TRIPURA DIRECTORATE OF SCHOOL EDUCATION (GRANTINAID SECTION) No.F.15(128)/SE/GIA/2012(L) Dated, Agartala, the 16-10-2014 To The Secretary, Harachandra Class XII School, P.O. Manik Bhandar, Kamalpur Dhhalai, Tripura. Ref: AHM’s letter No. HHS(224SUP)/H/2014/6128 dated 26-07-2014. Sub: Proposal for steppingup of pay of Smt. Kamala Bhattacharjee, PGT. Sir, In reference to the proposal of the Asstt. Headmaster vide his letter no. Ref: AHM’s letter No. HHS(224SUP)/H/2014/6128 dated 26-07-2014. Sub: Proposal for steppingup of pay of Smt. Kamala Bhattacharjee, PGT. Sir, In reference to the proposal of the Asstt. Headmaster vide his letter no. and subject as cited above, I am to state that Service Books of Smt. Kamala Bhattacharjee, PGT and Sri Sambhu Ch. Lodh, AHM have been examined and found that Smt. Bhattacharjee resigned for the post of Asstt. Teacher of Fatikroy Class XII School on 24/09/1986. Her Basic pay was Rs.740/in the scale of pay Rs.600 to 1440/on the date of resignation. Smt. Bhattacharjee joined in new service at Harachandra Class XII School on 25/09/1986 to the post of AT in the scale of pay Rs.6001440/. It was necessary to open a new service Book in Harachandra Class XII School for Smt. Bhattcharjee and her new Basic pay would be Rs.600/that is the initial basic of the scale Rs.6001440/. But the HM of Harachandra Class XII School committed a serious mistake. New Service Book not opened. Old Service Book of Fatikroy ClassXII School was used for Smt. Bhattacharjee and old basic pay Rs.740/was taken into account. Both the then Administrator and HM Harachandra Class XII School are equally responsible for this irregularity in Service Book. They have been retired. Otherwise departmental proceeding could be drawn against them. However, I am to request you to kindly furnish the following documents to this end immediately: 1. A copy of approval of the Director of School Education for acceptance of resignation letter of Smt. Kamala Bhattacharjee. 2. A copy of the Offer of appointment issued by the Administrator of Haranchandra Class XII School to Smt. Kamala Bhattacharjee, PGT(Eng.). 3. A copy of B.Ed. marksheet of Smt. Kamala Bhattaacharjee, PGT(Eng). Yours faithfully Sd/ (Smt. Swapna Das Bal), Deputy Director, Directorate of School Education, Tripura.” 10.7 It shows that pursuant to a proposal for stepping up of pay of the petitioner, the above letter was written by the Deputy Director. However, as I find, the management of the School did not take it to cognizance and the petitioner enjoyed her pay protection as was allowed by the Administrator by the above mentioned letter dated 08.11.1986. However, as I find, the management of the School did not take it to cognizance and the petitioner enjoyed her pay protection as was allowed by the Administrator by the above mentioned letter dated 08.11.1986. From the very inception of her joining to Harchandra Class XII School that was never disturbed and since it was never challenged it is clear that the petitioner was enjoying the pay protection after resignation from Fatikroy Class XII School on her joining the present Harchandra Class XII School. 11. Point No. II – Whether stepping up of the petitioner was allowed at par with respondent No.8? The petitioner made several representations for stepping up of pay. As already mentioned hereinbefore, by letter dated 16.10.2014 (Annexure-R/1 to the counter affidavit of respondent Nos. 3 and 5), the prayer of the petitioner for her stepping up with respondent No.8 was once rejected by the Director of School Education. But subsequently the Director of Education by letter dated 11.05.2015 (Annexure-P/18 to the writ petition) allowed the stepping up of pay of the petitioner at par with respondent No.8. The contentsof Annexure-P/18 read as follows: “Government of Tripura, Directorate of School Education, (GrantinAid Section) NO.F.15(128)SE/GIA.2012(L)/841/250252 Dated, Agartala, 11-5-2015. MEMO Ref: NO.F.HHS(224SUP)/h/2015/6561, dt.06022015. Clearance is hereby issued to the Secretary, School Managing Committee, Hara Chandra Class XII School, Manik bhandar, Kamalpur for steppingup of the basic pay of Smt.Kamala Bhattacharjee, PGT in reference to Sri Shambhu Ch. Lodh, AHM of the same School. Sd/ (Sri P.K.Chakravarty, IAS), Addl. Secretary & Director, School Eduation, Tripura, Agartala. To The Secretary, School Managing Committee, Harachandra Class XII School, P.O. Manik Bhandar, Kamalpur, Dist. Dhalai.” It appears that Annexure-R/1 dated 16.10.2014 and Annexure-P/18 i.e. Memo dated 11.05.2015 are quite contradictory with each other issued by the Directorate of School Education but the fact remains that Memo dated 11.05.2015 has been issued later on pursuant to the reference made by the Secretary of the School Managing Committee and that Memo dated 11.05.2015 stands good and has been complied with. The petitioner, therefore, got the stepping up at par with respondent No.8. 12. Point No.III – Whether continuity in service of the petitioner was allowed after her joining Harchandra Class XII School and whether because of pay protection and because of stepping up of pay the petitioner is entitled to claim continuity in service? The petitioner, therefore, got the stepping up at par with respondent No.8. 12. Point No.III – Whether continuity in service of the petitioner was allowed after her joining Harchandra Class XII School and whether because of pay protection and because of stepping up of pay the petitioner is entitled to claim continuity in service? The petitioner claimed her continuity of service on her joining the Harchandra Class XII School. The petitioner stated that a certificate was issued by the Headmaster of School on 24.07.1998 and she annexed it as Annexure-P/10 to the writ petition which reads as follows: “Harachandra Class XII School, P.O. Manikbhandar, Dist. Dhalai, Tripura. Dated, Manikbhandar, the 24th July,1998. TO WHOM IT MAY CONCERN Certified that continuity of services of Smt. Kamala Bhattacharjee as an Assistant teacher in this Institution has been granted by the Director of School Education, Government of Tripura. Sd/ Assistant Headmaster, (Head of Office,) Harachandra Class XII School, P.O. Manikbhander, Dist. Dhalai, TRIPURA." 12.2 In response to the contention of the petitioner in Para 15 of the writ petition regarding her continuity in service respondent Nos. 1 and 2 in counter affidavit in Para 22 stated that the petitioner has to prove the averments made in that paragraph. 12.3 Respondent No.4 in response, in Para 20 of the counter affidavit stated thus : “20.That, with respect to Paragraph-15 of the writ petition, it is stated that I have no personal knowledge about the reference of issuing the letter by the Head of office i.e. Assistant Headmaster of Harachandra Class XII School on 24.07.1998 but it is a fact that this letter was issued by the Head of office i.e. Assistant Headmaster of Harachandra Class XII School to the petitioner.” 12.4 Respondent Nos. 3 and 5 in Para 12 of the counter affidavit stated thus: “12.That, in reply to the statement made in para15 of the writ petition I say that the Managing Committee is in darkness about the certificate which appears on its face to be issued by the then Asst. Head Master Sri Dhanajoy Kumar Das and there is no communication of any letter/memo issued by the Respondent No.2 in this respect to the Respondent No.3, 5 & 6. This so called certificate neither does any file number of the school nor it has any reference of any letter of Director of School Education. Head Master Sri Dhanajoy Kumar Das and there is no communication of any letter/memo issued by the Respondent No.2 in this respect to the Respondent No.3, 5 & 6. This so called certificate neither does any file number of the school nor it has any reference of any letter of Director of School Education. The school authority does not have copy of such certificate. The stamp/seal used in this certificate is also different than one used by the then Asstt. Head Master Sri Dhananjoy Kr. Das in the entries made in the service book of the writ petitioner as well as other teachers at that time, even prior and after that. It is reasonably suspected to be a forged document created recently with the conspiracy made with the then Asst. Head Master for some ulterior motive if the signature on it is even found genuine. So, the original of this document be submitted by the writ petitioner before your Lordship and your Lordship should send it for forensic examination by experts to ascertain its age.” 12.5 Respondent No.6 & 8 in Para 15 of the counter affidavit stated thus: “15. That, in reply to the statement made in para15 of the writ petition I say that the Respondent No.6 have issued certificate on 24/7/1998 intimating the petitioner that the Respondent No.2 had granted the service of the writ petitioner in Harachandra Class XII school, is quite wrong, false and the same is created documents in connivance with Dhananjoy Das, Asstt. Head Master and subsequently as no such certificate has been issued by the then Director of School Education regarding the continuity of service of the writ petitioner as an Asstt. Teacher. Even the said alleged certificate (Annexure-P/10 to the writ petition) will show that there was no reference of any of the then Director of School Education and there is no reference No. in the letter and relevant file i.e. service book of the writ petitioner do not contain any such letter dated 27/7/1998 alleged to have been issued by the Asstt. Head Master and no such resolution was taken by the then Managing Committee of the School and as such,, the genuinity of the said letter is highly disputed by me as the same is false and forged one. Moreover, the seal of the Asstt. Head Master and no such resolution was taken by the then Managing Committee of the School and as such,, the genuinity of the said letter is highly disputed by me as the same is false and forged one. Moreover, the seal of the Asstt. Head Master used in the letter is also prepared subsequently at any time for the purpose of creating norms and seal used in the service book will show that the same is quite different from the seal used in the letter dated 24/7/1998 (Annexure- P/10 to the writ petition)”. 12.6 The claim of the petitioner that she was allowed continuity in service is highly a disputed fact. Annexure-P/10 is a certificate issued by the Headmaster of the School which is disputed by the respondents. Even the respondent No.4 has stated that he has no personal knowledge about that but however, he stated it to be true whereas the other respondents i.e. the respondent Nos. 3, 5, 6 and 8 highly disputed it stating that it was not issued from the School in the official process and a bare reading of the same also shows that it was simply a certificate issued by the Headmaster in the personal capacity even if it is believed to be true. For affording such a benefit a resolution ought to be taken by the Managing Committee and that ought to be approved by the Director of School Education and there is no such document that any resolution was adopted by the Managing Committee and the Director of Education approved it. So, the claim of the petitioner of her continuity of service is a highly disputed fact and cannot be accepted. 12.7 It is established that the petitioner was allowed pay protection on her joining the Harchandra Class XII School and she was given stepping up at par with respondent No.8 and those relates to the financial benefits already given to the petitioner. That by itself cannot prove that the service of the petitioner from the date of her joining in Fatikroy Class XII School should be accepted as continued after her resignation from Fatikroy Class XII School and on her joining in Harchandra Class XII School. There is no such decision/resolution of Managing Committee of Harchandra Class XII School to that effect with approval of Director of School Education. There is no such decision/resolution of Managing Committee of Harchandra Class XII School to that effect with approval of Director of School Education. In the absence of any such resolution and approval thereof the petitioner cannot claim continuity in service only on the ground of pay protection and stepping up of pay. 13. Point No. IV—Whether seniority of the petitioner visa vis respondent No.8 was determined in due process and whether the petitioner is entitled to get a declaration that she is senior to respondent No.8? The petitioner claimed seniority over respondent No.8. She joined Fatikroy Class XII School on 28.12.1979 and resigned on 24.09.1986. She joined in Harchandra Class XII School on 25.09.1986 and she was given pay protection. Respondent No.8 joined Harchandra Class XII School on 04.12.1981. Both are Postgraduate teachers. 13.1 Learned Sr. counsel, Mr. Deb has candidly submitted that since the petitioner got Postgraduate scale before respondent No.8, she should be treated as senior. On the other hand, learned Sr. counsel, Mr. Biswas has submitted that respondent No.8 joined Harchandra Class XII School before the petitioner and so he should be treated as senior. 13.2 The petitioner as well as the respondents brought on record several seniority lists. Annexure-P/13 to the writ petition is one of the seniority lists which has reflected the name of the respondent No.8 at Sl. No.1 and the name of the petitioner is at Sl.No.4. It was a seniority list dated 25.02.2012. Another seniority list as annexed by the petitioner is the seniority list dated 12.07.2012 which is marked as Annexure-P/15 to the writ petition and the respondents also annexed the same seniority list. It also shows respondent No.8 in Sl. No.1 and the petitioner in Sl. No.4 and both the petitioner as well as the respondent No.8 and other teachers put their signatures in Annexure-P/15. 13.3 It is an admitted position that those seniority lists were signed by respondent No.8 in the capacity as Secretary of Managing Committee of Harchandra Class XII School. The petitioner raised objection in respect of her seniority position mentioned in the said list and pursuant to a resolution of the Managing Committee, the respondent No.8 being the Secretary of the Managing Committee, wrote a letter dated 17.06.2015 (Annexure-P/21 of the writ petition) to the Director of School Education detailing the facts pursuant to resolution of the Managing Committee dated 08.06.2015. For ready reference, the contents of that letter are reproduced thus: “NO.F.HHS (224SUP)H/2015/6843 HARACHANDRA CLASS XII SCHOOL P.O. MANIKBHANDER, DHALAI TRIPURA, Dated, Manikbhander, the 17th June, 2015. To The Director of School Education, Govt. of Tripura, (Grantinaid section) Agartala, West Tripura. Subject: Information regarding resolutions of the meeting of the Managing Committee of Harachandra Class XII School held on 08062015. Sir, As per the Legal Notice No.F.PRB/LN/F01/92, Dt. 17052015 the Managing Committee of Harachandra Class XII School, has unanimously adopted the following resolutions. Resolution No.1 In framing the list of seniority of teaching staff of Post Graduate Teachers of Harachandra Class XII School, the Managing Committee has faced a problem regarding the base year and date of joining in service in between Sri Sambhu Chandra Lodh, AHM and Smt. Kamala Bhattacharjee, PGT. You are cordially requested to make it clear whether the Managing Committee should consider the joining date of Smt. Kamala Bhattacharjee in the previous school i.e. Fatikroy Class XII School or her date of joining in the present school i.e. Harachandra Class XII School according to the Grantinaid rules2005 as the base year. Smt. Kamala Bhattacharjee had joined in Fatikroy Class XII School on 28121979 and in the present school (Harachandra Class XII School) she joined on 25091986 with pay protection and other service benefits. On the other hand, Sri Sambhu Chandra Lodh joined in Harachandra Class XII School on 04121981. Here a thing to be noted is that according to the Grantinaid rules,2005, seniority list will be determined with effect from the date he/she joins the service in the new school. If the Managing Committee considers the joining date in service of Smt. Kamala Bhattacharjee in Fatikroy Class XII School as the base year, it shows that Smt. Bhattacharjee is the senior mostteacher and if the Committee follows the Grantinaid rules, 2005 it show that Sri Lodh is the senior most teacher. It is here mentioned that the Director of School Education (Grantinaid section) vide the Memo No.F.15(128)/SE/GIA/2012(L)/841/250252, dated 11052015 and the letter No.F.15 (128)SE/GIA/2012(L)/1121, Dt. 04062015 has granted step up and pay protection respectively of Smt. Bhattacharjee’s past service render by her in Fatikroy Class XII School from the date of her joining in the present school (Harachandra Class XII School). It is here mentioned that the Director of School Education (Grantinaid section) vide the Memo No.F.15(128)/SE/GIA/2012(L)/841/250252, dated 11052015 and the letter No.F.15 (128)SE/GIA/2012(L)/1121, Dt. 04062015 has granted step up and pay protection respectively of Smt. Bhattacharjee’s past service render by her in Fatikroy Class XII School from the date of her joining in the present school (Harachandra Class XII School). As the Managing Committee could not reach at the final conclusion regarding their seniority for the said reason, the Managing Committee request you to clarify the matter for making the list of Seniority from your end. Resolution No.2 As per letter No.F.15(128)SE/GIA/2012(L)/1121, dated 04062015 issued by the Director of School Education (Grantinaid section), the Managing Committee requested the Secretary of the Managing Committee to take course of action for fixation of Smt. Bhattacharjee’s pay and to prepare due and drawn statement for payment of her arrear pay. Yours faithfully, Sd/ Secretary Managing Committee Harachandra Class XII School, Manik Bhadar, Dhalai Tripura.” 13.4 In response to that letter, the Director of School Education wrote letter dated 21.07.2015 (Annexure-P/22 to the writ petition) which reads as follows: “Government of Tripura Directorate of School Education, (Grantin-Aid Section) No.F.15(128)SE/GIA/2012(L)/825 Dated, Agartala, 21.7.2015. MEMO Ref: NO.F.HHS (224SUP)/H/2015/6843 dt. 17062015 Sub: Seniority list of teaching and non-teaching staff. In ref. to his proposal vide no. as cited above, the Secretary, School Managing Committee, Hara Ch. Class XII School, manikbhandar, Kamalpur is hereby informed that guidelines for maintenance of seniority list of teaching and nonteaching staff of school may be seen in Rule5 (ii) at page6 of the Tripura GrantinAid (Govt. Aided Schools) Rules,2005. The said rules came in force w.e.f. 31.5.2005. The seniority list of teachers of Hara Ch. Class XII School who were appointed before 31.5.2005 may be maintained on the basis of the criteria being followed in Government Schools i.e. seniority may be counted from the date of receipt of the scale of pay as Post Graduate Teacher for the purpose of promotion to the post of Assistant Headmaster. This is for information and taking necessary action. Sd/ (Dr. P.K. Goyal, IAS) Director of School Education, Tripura, Agartala. This is for information and taking necessary action. Sd/ (Dr. P.K. Goyal, IAS) Director of School Education, Tripura, Agartala. To The Secretary, School Managing Committee, Hara Chandra Class XII School, Kamalpur, P.O. Manik Bhandar, District Dhalai.” 13.5 Respondent No.4, the President of the present Managing Committee in his counter affidavit in Para 31 clearly stated that pursuant to Memo dated 21.07.2015 of the Director of School Education a meeting of the Managing Committee held on 19.09.2015 and a resolution was adopted in that meeting. He presided over the meeting as the President. As already stated respondent No.3 is the Secretary of the Managing Committee at present and there were 12 members including the Secretary Dipankar Pal Chowdhury. Respondent No.4 clearly stated that he is the President and Dipankar Pal Chowdhury is the Secretary of the present Managing Committee. The Managing Committee took a decision pursuant to Memo dated 21.07.2015 and copy of that resolution has been annexed as Annexure-A/1 to the counter affidavit of respondent No.4 which reads as follows: “A meeting of the Managing Committee of Harachandra Class XII School was held on 19th Sept, 2015 at 11.00 A.M. in the premises of the School with Sri Binoy Bhusan Roy in the chair to discuss the following agenda. Agenda: 1. Regarding seniority list. 2. Misc. Members present 1. Sri Dipankar Paulchowdhury, Secretary, 2. Sri Abanindra Paul, Govt. Nominee, 3. Sri Tapan Kr. Roy, Member, 4. Sri Asok Roy,( I am not clear ) 5. Sri Arun Chandra Das, 6. Sri Bikha Debbarma, 7. Sri Pijush Kanti Chowdhury, 8. Smt. Ruma paul, 9. Sri Dulal Das, 10.Sri Binoy Debbarma, 11.Sri Indramohan Das, 12.Md. Rasid Uddin. In compliance with Memo No.F.HHS(224SUP)/H/2015/6843 dated 17062015 a meeting of the Managing Committee was held on 19th Sept,2015 and the following resolutions were accepted. Resolution1. It is resolved that Sri Sambhu Chandra Lodh, AHM of Harachandra Class XII School is the senior most Post Graduate Teacher of Harachandra Class XII School as per GrantinAid Rules,2005. Resolution 2. It is also resolved that a seniority list of teaching and nonteaching staff of Harachandra Class XII School will be prepared by 28 Sept, 2015. Resolution1. It is resolved that Sri Sambhu Chandra Lodh, AHM of Harachandra Class XII School is the senior most Post Graduate Teacher of Harachandra Class XII School as per GrantinAid Rules,2005. Resolution 2. It is also resolved that a seniority list of teaching and nonteaching staff of Harachandra Class XII School will be prepared by 28 Sept, 2015. (I am not agree with the resolution No.1 Binoy Bhusan Roy 19-09-2015) Sd/ Binoy Bhusan Roy 19-09-2015 President Managing Committee, Harachandra Class XII School, Manik Bhandar, Dhalai Tripura.” 13.6 In view of the above resolution of the Managing Committee, it is quite evident that pursuant to resolution of Managing Committee dated 08.06.2015, the issue of seniority between the petitioner and respondent No.8 was referred to the Director of School Education and Director of School Education in response wrote Memo dated 21.07.2015 and in consequence thereof the Managing Committee held meeting on 19.09.2015 and took the above resolution in respect of the issue of seniority. The President of the Committee has noted his disagreement in respect of resolution No.1 and one Member Asok Roy noted that he was not clear. Other 11 members of the Managing Committee unanimously took the resolution. Now that resolution should be forwarded to the Director of School Education for approval as per rules in respect of the dispute about seniority between the petitioner and respondent No.8. 13.7 Learned Sr. counsel, Mr. Biswas referring to Rule 5(ii) has submitted that the seniority of the petitioner is bound to be counted from the date of her joining in the Harchandra Class XII School. On the other hand, learned Sr. counsel, Mr. Deb has submitted that the Tripura GrantinAid (Govt. Aided Schools) Rules, 2005 came into force w.e.f. May 31,2005 since it is clearly stipulated that the Rule shall come into force with immediate effect and the notification was made on May 31, 2005 only. I am in full agreement with the contention of learned Sr. counsel, Mr. Deb that the Rule since has no retrospective effect, shall apply only with effect from the date of its coming into force that means it has a prospective effect only. The petitioner and respondent No.8 both joined the service of Harchandra Class XII School before the Rule came into force. counsel, Mr. Deb that the Rule since has no retrospective effect, shall apply only with effect from the date of its coming into force that means it has a prospective effect only. The petitioner and respondent No.8 both joined the service of Harchandra Class XII School before the Rule came into force. So, the stipulation in the Rule that-“If any inservice teaching or non teaching employee comes from another unit or school and joins services in any privately managed school, his/her position in the seniority list will be determined with effect from the date he/she joins the service in the new school;” shall not apply in the case of the petitioner. Managing Committee of the school has already taken a resolution on the issue as already discussed hereinbefore and the same should be forwarded to the Director School Education for approval. 14. Point No.V - Whether the appointment of respondent No.8 in the post of Assistant Headmaster of Harchandra Class XII School was vitiated for his participation in the meeting of Managing Committee and Departmental Promotion Committee? It is argued by learned Sr. counsel, Mr. Deb that the appointment of respondent No.8 to the post of Asst. Headmaster has been vitiated because of his own participation in the capacity of Secretary in the selection process as well as in the Managing Committee meeting. Annexure-16 to the writ petition, Memo dated 03.08.2013 shows that the Joint Director of School Education approved the proposal of the Managing Committee communicated by the Secretary of the Managing Committee dated 25.02.2012 for filling up the vacant post of Asst. Headmaster by promotion of Sri Shambu Ch. Lodh, the respondent No.8. It is not disputed that the communication was made by respondent No.8 himself to the Directorate. No such copy of resolution of the Managing Committee dated 25.02.2012 placed on record. Anyway, pursuant to the approval accorded by the Directorate of School Education, respondent No.8, as it appears in the capacity of Secretary of the Managing Committee, made a communication to himself as the TeacherinCharge appointing him as Asstt. Headmaster of the School by letter of appointment dated 05.08.2013 (Annexure-P/24) and he joined the post as Asst. Headmaster and communicated the joining report to the Secretary, Managing Committee and that post he was holding at that time. Annexure-R/8 to the counter affidavit of respondent Nos. Headmaster of the School by letter of appointment dated 05.08.2013 (Annexure-P/24) and he joined the post as Asst. Headmaster and communicated the joining report to the Secretary, Managing Committee and that post he was holding at that time. Annexure-R/8 to the counter affidavit of respondent Nos. 6 & 8 shows that the DPC meeting was held for promotion to the post of Asst. Headmaster on 28.06.2012 and respondent No.8 being the Secretary of the Managing Committee participated in the meeting whereas the issue was involving himself for his promotion to the post of Asst. Headmaster. Since he participated in the DPC meeting while his selection was considered as Asst. Headmaster, the process of selection stands vitiated. There was a meeting of the Managing Committee subsequent to the joining of the respondent No.8 in which the appointment of respondent No.8 was approved i.e. meeting dated 30.08.2013 (Annexure-P/27) and that meeting was also attended by the respondent No.8 and by that meeting the appointment of respondent No.8 was ratified and since respondent No.8 being the beneficiary participated in that meeting in the capacity of Secretary of the Managing Committee, the whole process got vitiated. The appointment of respondent No.8 to the post of Asst. Headmaster since vitiated for his own participation in the selection process, the appointment cannot stand and is liable to be quashed. 15. Point No.VI – Whether respondent Nos. 1 to 7 should be directed to give promotion to the petitioner in the post of Assistant Headmaster in the Harchandra Class XII School? Harchandra Class XII School is privately managed school and the Managing Committee is to take decision about appointment, posting, promotion, etc. as already stated hereinbefore. So the Managing Committee has to take a decision about the determination of the seniority and appointment as well on promotion or otherwise to the post of Asst. Headmaster/Headmaster as the case may be. The decision may be taken unanimously or of the majority of numbers, as per the rules and procedure of the Managing Committee of the School. After the resolution is taken it should be forwarded to the Director of School Education for approval. Once it is approved it should be materialized. 16. Headmaster/Headmaster as the case may be. The decision may be taken unanimously or of the majority of numbers, as per the rules and procedure of the Managing Committee of the School. After the resolution is taken it should be forwarded to the Director of School Education for approval. Once it is approved it should be materialized. 16. The writ petition accordingly stands disposed of with the direction that the appointment of respondent No.8 has been vitiated for his own participation in the selection process and ratification of the same and hence, the appointment by letter dated 05.08.2013 (Annexure-P/24 to the writ petition) stands quashed. 17. The Secretary, Managing Committee of the Harchandra Class XII School is directed to communicate resolution of the Managing Committee dated 19.09.2015 within 15 days from today to the Director of School Education, Govt. of Tripura by writing a forwarding letter and the Director of School Education is directed to take a decision regarding approval of the Managing Committee decision within 15 days on receipt of the communication from the Secretary of the School Managing Committee. For the interim period, the Director of School Education may take appropriate step in respect of the charge of Asst. Headmaster of the School and it is left open to the wisdom of the Director that he may keep the incumbent as the Asst. Headmaster to continue till the stipulated date of 30 days or may appoint temporarily any other eligible Asst. Teacher with the charge of Asst. Headmaster for the interim period till a decision as aforesaid is taken pursuant to the resolution of School Managing Committee.