WRIT PETITION 4201/2010 on 20 September 1974

Conclusion

WP(C) 4201/2010BEFORETHE HON’BLE MR. JUSTICE B.K. SHARMA THE HON’BLE MR. JUSTICE P.K. SAIKIA

JUDGMENT AND ORDER (ORAL)

B.K. Sharma, J.

By means of this writ petition, the petitioner a Science Graduate Teacher has put to challenge, Rule 24(2)(iii) of the Assam Secondary Education(Provincialised) Service Rules, 2003. The petitioner has also challenge the Annexure-E order dated 23.6.2010, by which the Director of Secondary Education, Assam has allowed the respondent No. 4 to hold charge of Principal of Gunialguri H.S. School in the district of Barpeta. According to the petitioner, he having joined as Assistant Teacher (Science) on 20.9.1974 and as Graduate Teacher on 1.1.1975, is senior to the respondent No. 4.

2. Referring to the judgments of this Court, one of the Division Bench and another of the Single Bench, annexed as Annexure-G and H to the writ petition, the petitioner has contended that his appointment against the post created under Half a Million Job Programme as Graduate Teacher is to be counted from 1.1.1975 with consequential seniority.

3. As against the aforesaid position of the petitioner, the respondent No. 4 was appointed on 25.9.1975 in the intermediate scale of pay. He was upgraded to the Graduate Cadre with effect from 1.7.1977. Although the petitioner has contended that since the respondent No. 4 was transferred to his school in the year 1987 and to be precise on 25.3.1987, he will be entitled to count seniority in the school only from the said date, but this aspect of the matter need not detainus inasmuch as if it is held that the petitioner is entitled to count senioritywith effect from 1.1.1975, then in that case, the respondent No. 4 having been appointed to the graduate cadre with effect from 1.1.1977, will rank junior to the petitioner.

4. The issue is no longer res-integra and has been decided by the Division Bench of this Court in W.A. No. 98/2002 vide judgment and order dated 22.7.2002 (Annexure-G). The issue also has decided vide Annexure-H judgment and order dated 23.7.2004 reported in (2004) (Supp) GLT 808 (Satya Charan Biswas Vs. State of Assam & Ors.). For a ready reference, Rule 24(2)(iii) of the aforesaid Rules of 2003 is quoted below:

24. Seniority - (1) The inter-se-seniority of the teachers of Graduate cadre and Post-Graduate cadre in a school shall be considered/determined for filling up the vacancies of Vice-Principal on the basis of-(i) & & & &.

(ii) & & & &

(iii) & & &..

(iv) & & &..

(2) Seniority for promotion to the post of Head Master/Superintendent/Assistant Head Master/Assistant Superintendent shall be determined on the following basis -

(i) & & & &.(ii) & & & &

(iii) regarding seniority in respect of H.M., J.P. (Stipendiary) teacher, seniority shall be counted from the date of regularization in Graduate cadre with effect from 1.3.78 vide Govt. letter No. ESS/0/72/468, dated 10.1.78;(iv) & & & &.

& & & & & &

5. From the above, what is seen is that the Rule making authority while fixing the seniority of the teachers in the Graduate cadre appointed under Half a Million Job Programme simply referred to the Government letter dated 10.1.1978 towards fixing seniority with effect from 1.3.1978. When the Division Bench judgment dated 22.7.2002 was delivered laying down that the teachers appointed under the said programme would be entitled to count seniority from 1.1.1975, the aforesaid circular letter was very much in existent. Thus, the Rule making authority while framing the aforesaid Rule of 2003 could not have taken recourse to the said circular letter dated 10.1.1978 so as to fix the seniority of the Graduate Teachers appointed under the said programme with effect from 1.3.1978. To that extent, the said provision and the letter dated 10.1.1978 will have to be read down so as to be substituted by the date 1.1.1975.

6. The above aspect of the matter has also been discussed in Satya Charan Biswas (supra), in which the Division Bench judgment referred to above has also been referred to. In this connection, paragraphs 15 and 17 of the said judgment are quoted below:

15. Even if the aforesaid Rule of 2003, more particularly Rule 24(2)(iii) with which the present proceeding is concerned is stated to be in force, such a provision conferring seniority to the Graduate Teachers appointed under half a Million Job Programme w.e.f 1.3.78 is not applicable to the case in hand on two countsviz. (1) the petitioner was appointed under the said programme in the Graduate scale of pay w.e.f. 1.9.73 and his such appointment was regularized w.e.f. 1.1.75. Thus the date 1.3.78 stipulated in Rule 24(2)(iii) of the aforesaid rules of 2003 is not applicable to the petitioner. Secondly, the Division Bench of this Court in the aforesaid Writ Appeal No. 98/02 has clearly held that the date of regularization in the graduate Cadre i.e. 1.1.75 pertaining to the Graduate teachers appointed under Half a Million Programme would be the decisive factor towardscounting of seniority. In that case the division Bench held that the respondentwho was also appointed under Half a Million Programme would get his seniority from the date of his continuous appointment in the Graduate cadre i.e. from 1.1.75 with effect from which date his service was regularized. The Division bench decided the issue by its judgment and order dated 22.7.2002. At that time the provision as contained in Rule 24 (2) (iii) of the aforesaid Rules of 2003 was incorporated in the Govt. notification dated 22.1.2001 provided counting of seniorityin respect of teachers appointed under Half a Million Job Programme with effectfrom the date of regularization of service in the Graduate Cadre w.e.f. 1.3.78 vide govt. letter No. ESS.70/72/468 dated 10.1.78. The said decision did not fund favour with the Division Bench inasmuch as the services of the respondent in the Writ Appeal who was also appointed under Half a Million Job Programme like that of the writ petition was regularized in his service w.e.f. 1.1.75. If there was any other teachers in the Graduate Cadre appointed under the Half a Million Job Programme whose services were regularized w.e.f. 1.3.78, their seniority may be counted on the basis of the aforesaid Notification and the provision of the Rule 24(2)(iii) but certainly not in the case of the writ petitioner. Otherwise the law laid down by the Division Bench of this Court could not have been set at naught by incorporating the same very Notification under rule 22 (2)(ii) of the aforesaid Rules of 2003.

17. In the impugned order dated 23.12.2003, the Director of Secondary Education,Assam while admitting that as per the departmental rules and criteria of seniority towards promotion to the next higher post, same is counted from the date of receiving the Graduate scale of pay and that the petitioner received the same atan earlier point of time than the respondent No. 4, suddenly came to the conclusion that his seniority for promotion to the next higher post would count w.e.f 1.3.78 without assigning any reason. It was argued on behalf of the respondent No. 4 that such assignment of seniority to the writ petitioner is on the basis of the aforesaid notification providing counting of seniority of the Graduate teachers appointed under Half a Million Job Programme. The position has already beendiscussed above, in reference to the date of regularization of the service of the petitioner w.e.f. 1.1.75 and the aforesaid decision of the division Bench. Insuch a situation the seniority of the writ petitioner cannot be arbitrarily counted w.e.f. 1.3.78.

the aforesaid notification providing counting of seniority of the Graduate teachers appointed under Half a Million Job Programme. The position has already beendiscussed above, in reference to the date of regularization of the service of the petitioner w.e.f. 1.1.75 and the aforesaid decision of the division Bench. Insuch a situation the seniority of the writ petitioner cannot be arbitrarily counted w.e.f. 1.3.78. —

7. After the aforesaid Division Bench judgment, the Rule making authority could not have taken recourse to the circular letter dated 10.1.1978 so as to fixthe seniority of the Graduate Teachers appointed under the particular programmewith effect from 1.3.1978. Taking note of the aforesaid Division Bench judgment, the Rule making authority ought to have fixed the seniority of the said teachers with effect from 1.1.1975.

8. In view of the above, the prayer made in this writ petition is allowed. The fixation of seniority of the Graduate Teachers appointed under Half a Million Job Programme with effect from 1.3.1978 stands set aside and quashed and the effective date incorporated in Rule 24(2)(iii) i.e. 1.3.1978 shall stand substituted with the date 1.1.1975. To that extent, the said Rule stands interfered with. Consequently the impugned Annexure-E order dated 23.6.2010 shall also stands interfered with and the matter shall stand remitted back to the Government of Assam in the Education Department to refix the seniority of the petitioner vis- -vis the respondent No. 4 and thereafter to assign the in-charge Principalship to the senior most teacher in the school.

9. Let the entire exercise be carried out as expeditiously as possible, butat any rate, not later than 31.1.2012. For this limited period, status-quo as on today in respect of holding of the charge of the post of Principal of the school existing as on today shall be maintained.

10. The writ petition is allowed, without, however, any order as to costs.