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2017 DIGILAW 236 (GAU)

Nilakanta Nath v. Probhat Borah

2017-02-22

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : Manojit Bhuyan, J. 1. Challenge in this intra-Court appeal is made to the Order dated 21.08.2013 passed in WP(C) 5087/2011. The said case was instituted by respondent no. 5 herein i.e. Probhat Borah assailing the order dated 21.07.2011 of the Director of Secondary Education, Assam. By the said order the appellant herein i.e. Nilakanta Nath was promoted as the Headmaster of Jengraimukh High School, Majuli, in the district of Jorhat. Ground of challenge was that the writ petitioner/respondent no. 5 herein was the senior most teacher of the school and for the fact that the appellant herein was transferred to the school on 24.03.1999 at his own request, he was not entitled to claim seniority over the existing staff of Jengraimukh High School. 2. The writ petition was answered in favour of Probhat Borah, having regard to the prescription under Rule 24(2)(v) of the Assam Secondary Education (Provincialisation) Service Rules, 2003. Pertinent to mention, amendment to Rule 24 was brought about by the Assam Secondary Education (Provincialised) Service (Amendment) Rules, 2012 only with effect from 10.07.2012. The said Rule 24 (2)(v) prescribed that a teacher who has been transferred on his own request to any other school, cannot claim seniority in that school and such seniority will be counted w.e.f. the date of his joining in that school. 3. The learned Single Judge while rendering the Order dated 21.08.2013 took notice of the submission made on behalf of the appellant herein to the effect that whereas Nilakanta Nath was selected for the post of Headmaster, Probhat Borah was selected for the post of Assistant Headmaster. As such, contention raised was that Probhat Borah, in the first place, was not entitled to claim promotion to the post of Headmaster as he was not selected for the post. Rule 13 of the Assam Secondary Education (Provincialisation) Service Rules, 1982 was relied upon to say that as per the said Rules inter-se seniority is required to be determined on the basis of the period of continuous service and, therefore, the seniority of Nilakanta Nath will be carried forward from the time he was in the earlier school i.e. Rangachahi Tonuram Nath High School and not from the date i.e. 24.03.1999 when he was brought to Jengraimukh High School. Notice was also had to the transfer order of the appellant where it was stipulated that he cannot claim seniority over the existing staff of the school in question. Reference was also made to the Full Bench decision of this Court in Jamal Uddin Ahmed v. State of Assam, reported in 2012 (1) GLT 1, where interpretation was made to Rule 24(2)(v) of the Service Rules, 2003. The Full Bench decision held that request transfer would entail effacement of the past service of a teacher and would not entitle him to claim seniority in the transferred school. 4. The contention of the appellant herein that whereas he was selected for the post of Headmaster and that Probhat Borah was selected only for the post of Assistant Headmaster, the same was answered by referring to Rule 14 of the Service Rules, 2003, which pertains to promotion to the post of Headmaster, Assistant Headmaster etc. under sub-rule (2) and (3) of Rule 14. Promotion was required to be made on the basis of school-wise seniority on the basis of recommendation of the State Selection Board. Accordingly, it was held that in terms of Rule 14 of the Service Rules, 2003 and the Full Bench decision in Jamal Uddin Ahmed (supra), Nilakanta Nath could claim his seniority at Jengraimukh High School only from the date of transfer. He was not entitled to claim seniority on the basis of his past service in the earlier school. The learned Single Judge found that Probhat Borah had been serving at Jengraimukh High School on and from 01.03.1995, whereas Nilakanta Nath joined the school on 24.03.1999. On the discussions so made, the promotion of Nilakanta Nath to the post of Headmaster at Jengraimukh High School was found to be legally unsustainable. Accordingly, direction was made to the State Respondents to undertake a fresh selection process by considering the eligible candidates as per the procedure prescribed under Rule 14 of the Service Rules, 2003. The said exercise was directed to be carried out expeditiously and preferably within 3 (three) months. 5. In the present appeal the primary argument advanced by senior counsel Mr. D.P. Chaliha is that the case of the appellant for promotion to the post of Headmaster is governed by the provisions under the Assam Secondary Education (Provincialisation) Service Rules, 1982. The said exercise was directed to be carried out expeditiously and preferably within 3 (three) months. 5. In the present appeal the primary argument advanced by senior counsel Mr. D.P. Chaliha is that the case of the appellant for promotion to the post of Headmaster is governed by the provisions under the Assam Secondary Education (Provincialisation) Service Rules, 1982. Under the said Rules and in terms of Rule 9(4) he was eligible for selection for the post of Headmaster, which is a Grade-II post under Rule 3 thereof. In so far as Probhat Borah is concerned, he had only applied for selection to the post of Assistant Headmaster which is a Grade-III post and not for the post of Headmaster of the school and to that extent he was without locus to challenge the promotion of the appellant. 6. The submission so made on behalf of the appellant is mis-conceived. The provisions under the aforesaid Service Rules, 2003, particularly Rule 14 and Rule 24 thereof, lays down the procedure for making promotion and for determination of inter-se seniority. The Full Bench Decision in Jamal Uddin Ahmed (supra) also discussed on the effect of the Service Rules, 2003 vis-a-vis the 1982 Rules. While holding that Rule 24(2)(v) of the Rules, 2003 did not permit claim for seniority on transfer to another school at own request, also clarified that the Rules, 2003 being remedial and not declaratory in nature would have retrospective operation. At paragraph 73 of the Full Bench decision it was held that the 2003 Rules was essentially a clarificatory law and would be retrospective in operation on and from the date of enactment of the 1982 Rules. This determination by the Full Bench, for the purpose of this case, means that the inter-se seniority between Probhat Borah and Nilakanta Nath has to be on the basis of the procedure prescribed under Rule 14 and Rule 24 of the aforesaid Rules, 2003. The fact that Probhat Borah has been employed at Jengraimukh High School since 01.03.1995 and Nilakanta Nath having joined the same school subsequently on the strength of the transfer order dated 24.03.1999, as such, Nilakanta Nath could not have been promoted to the post of Headmaster in supersession of the rights of Probhat Borah. The judgment and order under appeal do not suffer from any infirmity and, accordingly, the same stands affirmed. 7. The judgment and order under appeal do not suffer from any infirmity and, accordingly, the same stands affirmed. 7. This appeal being devoid of merits, stands accordingly dismissed, however without any order as to costs. 8. WP(C) 286/2015, which is tagged to the present appeal, makes a challenge to the Order dated 12.06.2014 passed by the Director of Secondary Education, Assam, whereby Probhat Borah has been promoted to the post of Headmaster of Jengraimukh High School. This order of 12.06.2014 is essentially a consequential order issued in terms of the directions made in the order under appeal dated 21.08.2013. For the fact that Probhat Borah is senior to Nilakanta Nath, which view has been affirmed in the related writ appeal, we find no cogent grounds to interfere with the said Office Order dated 12.06.2014. As a necessary corollary, the writ petition i.e. WP(C) 286/2015 filed by Nilakanta Nath also stands dismissed. No costs.