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2018 DIGILAW 176 (GAU)

Dinabandhu Kalita v. State of Assam

2018-01-30

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : Manojit Bhuyan, J. Heard Mr. D. Das, learned Senior Counsel representing the appellant, assisted by Mr. K. Mohammed, Advocate. Also heard Ms. P. Chakraborty, learned counsel representing respondent nos.1, 2 & 3 and Mr. B. Sarma, learned counsel representing respondent no.4. 2. This intra-Court appeal is directed against the common order dated 30.11.2016 passed in WP(C) 7375/2015 and WP(C) 7484/2015. 3. Issue primarily pertains to a seniority dispute between the appellant/writ petitioner and the respondent no.4 in the given facts of the case. To decide on the issue, certain facts need to be traversed, which are not in dispute. Both the appellant and the respondent no.4 are teachers of Rukmini Gaon Balika Vidyapith. The appellant was appointed as Assistant Teacher on 27.12.1993 and joined the school on 29.12.1993 on a lump sum pay of Rs. 200/- per month. The respondent no.4 joined the school on an earlier date i.e. on 26.02.1990, also on lump sum pay of Rs. 200/- per month. The services of the teaching and non-teaching staff of the school were provincialised by the Government of Assam in the Secondary Education Department with effect from 01.02.1994. In this regard, an Office Order dated 14.08.1995 was issued showing the appellant in the status of an Assistant Teacher against scale of pay of Rs. 1375-3375/- per month. As regards the respondent no.4, she was shown as an Assistant Teacher (Intermediate) against a lower scale of pay of Rs. 1185-2395/- per month. This was the position obtaining when the school was provincialised. By a subsequent order dated 12.04.1996, issued under the hand of the Inspector of Schools, Kamrup District Circle, the Intermediate scale enjoyed by the respondent no.4 was upgraded to the Graduate scale with effect from 30.12.1993. The said up-gradation to the Graduate scale with effect from 30.12.1993 did not, however, impinge on the seniority status of the appellant, in as much as, his date of entry in the cadre of Graduate Teacher was 29.12.1993 as against 30.12.1993 of the respondent no.4. The school authority also acknowledged this position when the seniority list was published on 30.03.2002. 4. As and when an Advertisement was issued on 14.05.2015 for filling up vacancies in the post of Headmaster etc., as the regular Headmistress was due to retire, the respondent no.4 claimed seniority over the appellant and had also made representation to the authority concerned in this regard. 4. As and when an Advertisement was issued on 14.05.2015 for filling up vacancies in the post of Headmaster etc., as the regular Headmistress was due to retire, the respondent no.4 claimed seniority over the appellant and had also made representation to the authority concerned in this regard. At the instance of the Directorate of Secondary Education, Assam, a date of hearing was fixed on 18.08.2015 for determination of the inter se seniority between the respondent no.4 and the appellant for holding the post of Headmaster of the school. According to the appellant, it was only during the course of hearing that he learnt about the Office Order dated 31.07.2008, by which the pay of the respondent no.4 was equalized at the stage of Rs. 3850/- at par with the appellant with effect from 01.02.1997, treating the appellant as her junior. The said order was shown to have been passed in compliance of directions of this Court passed in WP(C) 1689/2007. 5. Challenge to the aforesaid order dated 31.07.2008 was made in WP(C) 7375/2015. The said challenge was negated by the learned Single Judge on ground that the same had been made after more than 7(seven) years. The learned Single Judge found no good and compelling reasons to entertain the belated challenge made to the order dated 31.07.2008. 6. In the second writ petition i.e. WP(C) 7484/2015, the appellant as the writ petitioner assailed the legality and validity of the Office Order dated 21.11.2015 passed by the Director of Secondary Education, Assam, whereby the respondent no.4 has been held senior to the appellant as Assistant Teacher in the school. As the learned Single Judge recorded absence of any error or infirmity in the order dated 21.11.2015, the same is usefully reproduced hereunder: "Government of Assam Office of the Director of Secondary Education, Assam Kahilipara, Guwahati-19 NO.GB-EST/Apptt./46/2015/87. Dated Kahilipara the 21st November, 2015 Order Seen report of Joint Director of Secondary Education, Assam (Sri S. Das). The report is inconclusive: Perused the seniority list, the speaking order passed by Government vide order No.ELC/WP(C)/5595/2011/700/220. dated 19.07.2011 It is seen that Rubi Sarma joined at Rukminigaon Balika Vidyalaya on 26.02.1990 on lump sum pay of Rs. 200/- p.m. the school was provincialised on 01.02.1994. She got graduate scale on 01.02.1994. Her initial joining in the school was 26.02.1990. The report is inconclusive: Perused the seniority list, the speaking order passed by Government vide order No.ELC/WP(C)/5595/2011/700/220. dated 19.07.2011 It is seen that Rubi Sarma joined at Rukminigaon Balika Vidyalaya on 26.02.1990 on lump sum pay of Rs. 200/- p.m. the school was provincialised on 01.02.1994. She got graduate scale on 01.02.1994. Her initial joining in the school was 26.02.1990. Sri Dinabandhu Kalita was appointed by Managing Committee on 26.12.1993 on lump sum pay of Rs. 200/- p.m. He received graduate scale of pay 01.02.1994. Both Rubi Sarma, Asstt. Teacher and Dinabandhu Kalita, Asstt. Teacher (Science) received graduate scale of pay w.e.f. 01.02.1994. As per Rule 24 of Assam Secondary Education (Provincialised) Service Rules, 2003 seniority is to be determined w.e.f. receiving graduate scale of pay on regular basis. If the date of receiving graduate scale of pay are same of two teachers, the inter-se seniority amongst the two is to be determined with reference to their initial date of joining. Rubi Sarma was appointed first on 26.02.1990. Hence Rubi Sarma is senior. Seniority is determined with effect from date of acquiring graduate scale or post graduate scale as the case may be. Whether the post was upgraded or not is not a factor here and cannot be a yardstick for determination of seniority. The appointment of Dinabandhu Kalita dated 22.07.2015 submitted to the Secretary to the Govt. of Assam, Education (SEC) Department is disposed of. Sd/- B.L. Sarma, ACS. Director of Secondary Education, Assam, Kahilipara, Guwahati- 19 Memo No.GB- EST/Apptt/46/2015/87-A Dated Kahilipara the 21st November, 2015." 7. At the very outset, we place on record that we do not agree with the reasons assigned in the aforesaid order dated 21.11.2015 declaring respondent no.4 as senior to the appellant. Firstly, Rule 24 of the Assam Secondary Education (Provincialisation) Service Rules, 2003 has been incorrectly interpreted, so much so, the provisions with regard to seniority of a member in a cadre, who has not been appointed by direct recruitment, do not prescribe that such seniority is to be determined with effect from the date of receiving graduate scale of pay on regular basis. Rule 24 of the aforesaid Rules confines seniority only amongst members of the service in a particular cadre, which is to be determined as per the procedure laid down under sub-rule (3) of Rule 24. Rule 24 of the aforesaid Rules confines seniority only amongst members of the service in a particular cadre, which is to be determined as per the procedure laid down under sub-rule (3) of Rule 24. Without any dispute, the respondent no.4 is serving as an Intermediate Teacher and not as a Graduate Teacher. Her up-gradation to the Graduate scale of pay cannot ipso facto upgrade her status and make her senior to the appellant who joined as a Graduate Teacher and was getting higher scale of pay. Secondly, a similar seniority dispute had arisen between the respondent no.4 on one hand and one Smti. Ranu Sarma on the other, both from the same school. The status of Smti. Ranu Sarma, as would be apparent from the aforesaid provincialisation order dated 14.08.1995, was similar to the appellant herein. On this issue the respondent no.4 had instituted WP(C) 5595/2011 and pursuant to the order of the Court passed in the said writ petition, the Commissioner and Secretary to the Government of Assam, Education (Secondary) Department, adjudicated on the issue of seniority and disposed of the same vide Office Order dated 19.07.2011. A perusal of the said Office Order would go to show that the case of Smti. Ranu Sarma is exactly similar to the appellant herein, in as much as, Smti. Ranu Sarma had joined the school in Graduate scale of pay of Rs. 1375-3375/-, as against the respondent no.4 who received Intermediate scale of pay of Rs. 1185-2395/-. The said Office Order dated 19.07.2011 decided on the issue of seniority by holding that subsequent up-gradation of pay scale in favour of the respondent no.4 would not upgrade her status and make her senior than the persons who are already receiving higher scale than her. The Office Order also held that up-gradation of pay does not confer any seniority vis-a-vis other persons who were already getting higher scale. In this regard, order was passed that said Smti. Ranu Sarma being a Graduate Classical Teacher is senior than the respondent no.4. The Education Department having rendered its views in a similar matter where the disputants belonged to the same school, one of which was the respondent no.4 herein, a totally different stand could not have been taken as reflected in the impugned order dated 21.11.2015. Ranu Sarma being a Graduate Classical Teacher is senior than the respondent no.4. The Education Department having rendered its views in a similar matter where the disputants belonged to the same school, one of which was the respondent no.4 herein, a totally different stand could not have been taken as reflected in the impugned order dated 21.11.2015. In this view of the matter the respondent no.4 could not have been held senior to the appellant herein. 8. It is too well settled that the question of seniority arises only in relation to employees who are similarly circumstanced, that is, where they are functioning in the same rank, grade or cadre. If the employees belong to two distinct classes, the question of inter-se seniority between the members of such distinct classes cannot arise. This view finds support in a recent decision of the Division Bench of this Court in WA 357/2013, decided on 18.03.2016, where at paragraph 20 thereof it has been held as follows: "20. Under service jurisprudence, the tenure of service can be a basis for determination of seniority only amongst those, who are in the same cadre but the length of service in two different grades can't naturally be the criteria for determination of seniority in the higher post. In certain circumstances, pay up-gradation can be construed as promotion but in the facts of the present case, where the 6th respondent was regularly promote to the higher post whereas the writ petitioners simply secured the benefit of pay up-gradation, it would be incorrect in our opinion to deny seniority to the person, who was placed in the higher post ahead of the Programme Officers." Applying the ratio above, both the appellant and the respondent no.4, not being similarly circumstanced, rather belonging to two distinct cadres, the question of interse seniority between them could not have arisen. In this view of the matter also the Office Order dated 21.11.2015 is not legally sustainable. 9. For the reasons stated above, both the writ appeals stands allowed by interfering with the Office Order dated 31.07.2008 and Office Order dated 21.11.2015 only to the limited extent where the respondent no.4 has been held senior to the appellant herein. The common judgment and order of the learned Single Judge dated 30.11.2016 is set aside. 9. For the reasons stated above, both the writ appeals stands allowed by interfering with the Office Order dated 31.07.2008 and Office Order dated 21.11.2015 only to the limited extent where the respondent no.4 has been held senior to the appellant herein. The common judgment and order of the learned Single Judge dated 30.11.2016 is set aside. The state respondents, particularly respondent nos.1 and 2, are directed to take such steps with regard to fixing the seniority of the appellant in terms of the findings above. Ordered accordingly.