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2017 DIGILAW 510 (GAU)

Jatindra Kalita v. State of Assam

2017-04-27

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Mr. B. Chakraborty, learned counsel for the petitioner. Also heard Mr. A.B. Choudhury, learned senior counsel assisted by Mr. M.K. Sarmah, learned counsel for the respondent No.5 and Mr. A. Deka, learned standing counsel for the Secondary Education Department. 2. The Pub-Guwahati Girl's High School which was earlier a venture school had obtained a recommendation from the Government in the year 1987 and since then, the school has been receiving adhoc grants-in-aid from the Government. Subsequently, the said school was provincialised w.e.f. 19.11.1991. The writ petitioner was appointed as an Asstt. Teacher during the venture stage by the Managing Committee of the school as per the order dated 14.05.1983. On the other hand, the respondent No. 5 was appointed as Asstt. Teacher in the venture school on 04.11.1988. 3. Upon the superannuation of the earlier Headmistress-In-Charge on 28.02.2011, the petitioner was initially assigned the charge of the Headmaster of the school. It is the case of the petitioner that at that stage, there was no objection from the respondent No.5. In the meantime, the selection process for selection and appointment of a regular Headmaster was initiated vide advertisement dated 02.11.2010. As per the said advertisement, the selection for the post of Headmaster was required to be done by the State Selection Committee constituted for the purpose. Pursuant to the said advertisement, both the petitioner as well as the respondent No.5 had participated in the selection process. 4. As per the result of the selection in respect of Pub-Guwahati Girl's School, one Jyotika Choudhury Kalita was on merit position No.1, the respondent No.5 is at serial No.2 and the Jatindra Kalita being the present petitioner is at serial No.3. 5. The aforesaid result of the selection committee was assailed by the present writ petitioner before the Director of Secondary Education, Assam. The petitioner had preferred the representation dated 14.07.2011 indicating that he is senior to the respondent No.5, and, as such, the result declared by the State Selection Committee is incorrect. 6. It appears from the order dated 09.11.2011 of the Director of Secondary Education, Assam, the petitioner was declared to be the senior to the respondent No.5 and accordingly, the Chairman of the Selection Board was requested to issue necessary rectification to that effect. 6. It appears from the order dated 09.11.2011 of the Director of Secondary Education, Assam, the petitioner was declared to be the senior to the respondent No.5 and accordingly, the Chairman of the Selection Board was requested to issue necessary rectification to that effect. In the order of 09.11.2011, it was held that the petitioner had joined the school as a graduate teacher on 14.05.1983, whereas the respondent No.5 had joined as graduate teacher on 04.11.1988 and therefore, the petitioner is senior to the respondent No.5. 7. Against the said order, purportedly, the respondent No.5 had preferred a representation dated 29.11.2011 before the Director for recalling the order dated 09.11.2011. Thereafter, the Director upon considering the earlier representation of the petitioner dated 14.07.2011 and the subsequent representation of the respondent No.5 dated 29.11.2011 had given consideration to the same and passed the order dated 18.01.2012. 8. Accordingly, the Director in the order dated 18.01.2012 arrives at a conclusion that on examination of the order dated 09.11.2011, it had appeared to the Director that there were some error in determining the seniority and that by taking into account the date of initial appointment of the petitioner before provincialisation of the school, for the purpose of determining the seniority, was erroneous. 9. The Director further concludes that the school was not provincialised in the year 1983 and the school was provincialised in the year 1991 and after provincialisation both the teachers received their graduate scale of pay on the same date i.e. 19.11.1991, both the teachers were B.E.d. 10. Accordingly, the Director concludes that the period spent during the adhoc stage or venture stage cannot be taken into consideration to determine the seniority of an Asstt. Teacher. As both the teachers had received a graduate scale of pay on 19.11.91 and, therefore, the date of birth of the respective candidates would the relevant factor to determine the seniority. Accordingly, as the date of birth of the respondent No.5 was 01.12.1958 and that of the petitioner is 01.01.1960, the respondent No.5 was held to be senior to the petitioner and was allowed to continue as the Headmaster of the school. 11. In the present writ petition, the issue for determination is as to what would be the relevant criteria to determine the inter se seniority between the two teachers, whose services were provincialised on the same date. 12. 11. In the present writ petition, the issue for determination is as to what would be the relevant criteria to determine the inter se seniority between the two teachers, whose services were provincialised on the same date. 12. As a corollary, the other issue would be as to whether the relevant period of service spent by the respective teachers in the school during its venture stage has to be absolutely ignored or the same would also have some consideration in determining the seniority. 13. If the reason given by the Director is accepted, the period of service spent by the respective teachers during the venture school had been totally ignored. In order to answer the aforesaid question, the relevant aspect that has to be gone into is as to what is the purport of the concept of provincialisation. In other words, whether by the act of provincialisation, it is to be construed under the law that the respective candidates are given appointment in service or it is a pre-existing service of the incumbents in some other form that had been taken over by the Government. 14. In order to arrive at the answer, reference may be made to the statement of object and reason of the Assam Secondary Education Provincialisation Act, 1977 by which, the services of both the petitioner as well as the respondent No.5 were provincialised. The statement of object and reasons provides that the object is to provincialise the services of employees of different categories in various secondary schools in Assam covered by deficit scheme and under the Act the administration, management and control of all employees of all secondary schools come within the purview of the Act which vests in the Government. Therefore, the object and reason makes it abundantly clear that firstly, the services of the employees who are already employed in various secondary schools and covered by a deficit scheme are being provincialised and secondly, by the act of provincialisation, the control of all such employees are vested in the State Government. 15. On a plain reading of the statement of object and reason, it is seen that by the act of provincialisation, the State Government does not give a fresh appointment to the employees whose services are provincialised, and on the other hand, by such process, it is only the control of such employees that has been vested in the State Government. On a plain reading of the statement of object and reason, it is seen that by the act of provincialisation, the State Government does not give a fresh appointment to the employees whose services are provincialised, and on the other hand, by such process, it is only the control of such employees that has been vested in the State Government. Hence, this Court concludes that by the act of provincialisation, the State Government does not give fresh appointment to the employees whose services are being provincialised. 16. Further, Section 2(ii) of the Assam Secondary Education (Provincialisation) Act, 1977 defines the date of appointment to mean that any employee, the date on which he joined the service of a school imparting secondary education on and from the date of its coming under adhoc system of grants-in-aid. The said definition of the date of appointment makes it implicit that the date on which the concerned employee had joined the service of the school imparting secondary education or the date from which the said school was brought under the adhoc system and grants-in-aid, would the date of appointment. In other words, if an employee is already in service of the concerned secondary school and subsequently, the school was brought under the adhoc system of grants-in-aid, the date of appointment of such employee would be the date, on which, the school was brought under the adhoc system of grants-in-aid. If an employee is appointed after the date on which the school was brought under the adhoc system of grants-in-aid, the date of appointment of such employee would the date, on which he was appointed in the school. 17. Upon considering the aforesaid concept of date of appointment as envisaged under Assam Secondary Education (Provincialisation) Act 1977, the date of appointment of the petitioner in this case would be relevant date in the year 1987, when the school was brought under the adhoc system of grants-in-aid. As the school was already brought under the adhoc system of grants-in-aid in the year 1987 and the respondent No.5 having been appointed on 04.11.1988, the date of appointment of the respondent No.5 would be 04.11.1988. Accordingly, on the basis of respective dates of appointment, it is to be construed that the petitioner is senior to the respondent No.5. As the school was already brought under the adhoc system of grants-in-aid in the year 1987 and the respondent No.5 having been appointed on 04.11.1988, the date of appointment of the respondent No.5 would be 04.11.1988. Accordingly, on the basis of respective dates of appointment, it is to be construed that the petitioner is senior to the respondent No.5. Regarding the other aspect, as to whether, the service rendered by the respective employees, during the stage, when the school was in the venture stage can be taken into consideration for determining the seniority, the relevant answer would be that as the Assam Secondary Education Provincialisation Act 1977 contemplates and provides that upon provincialisation, it is only the control of such employee that has been vested in the State Government, there is nothing in the Act to indicate that the service of such employees prior to its provincialisation is to be ignored totally. 18. The aforesaid reason finds further credence from the point of view that the date of appointment had already been defined and accepted under the Assam Secondary Education Provincialisation Act 1977 and as the concept of date of appointment having been already defined and accepted, therefore, the service rendered by such employees from the date of appointment to the date of provincialisation cannot be totally ignored. 19. In such view of the matter, the said period of service between the date of appointment and the date of provincialisation would also have to be taken into consideration for the purpose of determining the seniority of the respective candidates. Further, the reason given by the Director that as both the teachers were receiving their graduate scale of pay upon the school being provincialised on and from 19.11.91, the date of birth would be the relevant criteria for determining the seniority appears to be misconceived. 20. The aforesaid criteria of taking the date of birth into account for determining the seniority is applicable only in respect of such employees who were appointed on the same date. As already been held as the act of provincialisation does not imply that it is an act of giving appointment by the Government, therefore, in the instant case, the aforesaid principle has no application, and the Director of Secondary Education could not have referred to the date of birth of respective candidates for determining the inter se seniority. 21. Accordingly, the writ petition is allowed. 21. Accordingly, the writ petition is allowed. The order dated 18.01.2012 of the Director of Secondary Education is set aside. It is submitted by the learned counsel for the respondent that under the Assam Secondary Education Provincialisation of Services Rules 2003, the relevant criteria for selection for promotion to the post of Headmaster, apart from the seniority, would also be the consideration of the ACRs for the last three years. By referring to the said Rule, the learned senior counsel makes a submission that the inter se merit of the respective candidates has also a relevant consideration. A bare reading of Rule 14(2) of the Rule does not make it clear as to in what manner the merit component has to be considered along with that of seniority in order to arrive at an appropriate decision. In view of the position that Rule of 14(2) is not very clear on its own, the respondent authorities, as provided under Rule 30 can refer the matter to the Government for a decision as regards the requirement of consideration of merit for the purpose of promotion to the post of Headmaster. 22. In any view of the matter, as the respondent No.5 is responding to the writ petition filed by the petitioner, in the instant case, it is not possible to the respondent No.5 to take such a stand in this proceeding. In the event the respondent No.5 desires, he shall be at liberty to prefer petition of its own for adjudicating the same. 23. Upon the order dated 18.01.2012 being set aside, the matter would now be remanded back by the said respondent authorities to the State Selection Committee for a fresh decision on the matter regarding the selection for promotion to the post of Headmaster in the Pub-Guwahati Girl's School. The aforesaid exercise shall be completed within a period of 3 (three) month from the date of receipt of a certified copy of this order. Till such final decision is taken, as it is provided that as the petitioner is continuing as the Headmaster, the petitioner be allowed to continue so. Interim order passed earlier stands vacated.