High Court · 2012

Heard Mr. J. Deka, learned counsel for the petitioner, Mr. M.R. Pathak, learned standing counsel, Education Department appearing for the respondent Nos.1 to 3 a nd Mr. A.R. Sikdar, learned counsel appearing for the respondent No.5. None appe ars for the respondent No.6. The name of the respondent No.4 has already been struck off vide order dated 10t h April, 2012. The petitioner by the present petition has challenged the selection of the respo ndent Nos.5 and 6 above the petitioner for appointment to the post of Assistant Headmaster in Puranigudam Girls’ High School. It is the contention of the petitioner that since she is the senior most teacher in Puranigudam Girls’ High School and receiving the graduate scale of pay with effect from 30th December, 1993 as against the respondent No.6, who received the said scale of pay with effect from 1st April, 1997, the State Selection Board o ught not to have placed the respondent No.6 above the petitioner in the select l ist prepared for the purpose of appointment to the post of Assistant Headmaster of the said school. The further contention of the petitioner is that the respon dent No.5 having been transferred to Puranigudam Girls’ High School vide order d ated 30th October, 2004 on his own request, he will loose the seniority in the t ransferred school of posting, namely Puranigudam Girls’ High School, and his sen iority in the said school has to be counted from the date of his joining, i.e. 5 th November, 2004 and hence, the action on the part of the State Selection Board in placing the respondent No.5 above the petitioner is also erroneous. Mr. Pathak, learned standing counsel, Education Department submits that in view of the division Bench judgment in Jamal Uddin Ahmed & Ors. -Vs- State of Assam & Ors. reported in 2012 (1) GLT 1, if a teacher is transferred from one school to another school on his own request, he will loose his seniority in the transferr ed school of posting and his seniority is to be determined in the transferred sc hool of posting with effect from the date of his joining in the said school purs uant to such transfer. It has also been submitted that it is also evident from the particulars submitted by the Headmaster of the said school that the responde nt No.6 is junior to the petitioner, she having drawn the graduate scale of pay with effect from 1st April, 1997 as against the petitioner with effect from 30th December, 1993. Mr. Pathak, learned standing counsel, Education Department furt her submits that pursuant to the recommendation of the State Selection Board, no appointment to the post of Assistant Headmaster has been made so far. Mr. Sikdar, learned counsel appearing for the respondent No.5 submits that since the respondent No.5 has drawn the graduate scale of pay with effect from 1st Ma rch, 1993 while he was posted in Dawson HS & MP School, the State Selection Boar d has rightly selected the respondent No.5 above the petitioner. It has also be en submitted that the selection having been conducted on the basis of the ACRs o f the persons, who were within the zone of consideration, no illegality can be a ttached to the action on the part of the State Selection Board in placing the re spondent No.5 above the petitioner. Rule 14(3) of the Assam Secondary Education (Provincialised) Service Rules, 2003 provides that the post of Assistant Headmaster/ Assistant Headmistress/Assistan t Superintendent shall be filled up by promotion from the school-wise seniority list of Assistant Teachers on recommendation of the State Selection Board. It a lso provides that the selection shall also be based upon satisfactory Annual Con fidential Report for last 3 years and seniority of service in graduate scale of pay with a minimum period of 7 years of teaching experience. It is not in dispute that the selection to the post of Assistant Headmaster is t o be made on the basis of seniority-cum-merit and hence if the teachers, who app lied for selection, are found to be eligible having satisfactory performance, th e selection is to be made based on their seniority. In the instant case, it is evident from the materials made available on record that the petitioner received the graduate scale of pay with effect from 30th December, 1993 as against the r espondent No.6 on 1st April, 1997 and hence the petitioner is senior to the resp ondent No.6. It also appears that the respondent No.5 was transferred vide orde r dated 30th October, 2004 from Dawson HS & MP School on his own request to Pura nigudam Girls’ High School, where he joined on 5th November, 2004. In the said order of transfer, it has specifically been mentioned that he will have no claim of seniority. The respondent No.5, therefore, will loose the seniority in the t ransferred school of posting and his seniority in the said school is to be deter mined on the basis of his date of joining in the said school, i.e. on 5th Novemb er, 2004 and hence the respondent No.5 is also junior to the petitioner in Puran igudam Girls’ High School. The State Selection Board has found the petitioner, the respondent No.5 and the respondent No.6 suitable for promotion to the post of Assistant Headmaster. The State Selection Board, however, has ignored the seniority position of the petit ioner vis-à-vis the respondent Nos.5 and 6 and hence the recommendation of the S tate Selection Board placing the respondent No.5 and 6 above the petitioner is s et aside. The matter is remitted to the State Selection Board for fresh conside ration and recommendation, which shall be done within 45 (forty-five) days from the date of receipt of the certified copy of the order passed today to be produc ed by the petitioner before the Director of Secondary Education, Assam. The writ petition is accordingly allowed. No costs.