High Court · 2012

6]. Appellant challenged the aforesaid order dated 26.05.2006 in WP(C) No. 3 208/2006 contending that he was senior to the respondent no.6, his service havin g been approved with effect from 20.02.1980 whereas that of respondent no.6 on 0 2.01.1981. Further prayer was for a direction to the authority to promote the ap pellant to the post of Assistant Headmaster after declaring him to be senior to the respondent no.6. The writ petition was resisted by the respondents. The Inspector of Scho 7]. ols in his counter affidavit stated that contrary to the assertion of the appell ant, respondent no.6 was appointed as Assistant Teacher by the Managing Committe e of the School on 16.10.1979, on which date itself, he had joined. Thereafter, he was appointed as stipendiary teacher with effect from 02.01.1981 in the Schoo l under the ’Half-A-Million-Job-Programme’. This stand of the State respondents was further elaborated in paragraph 9 of the counter affidavit, which is as unde r:- (cid:28)9. That with reference to the statements made in paragraphs 12, 13, 14 & 15 of the writ application, the deponent states that the respondent no.6 had joined the said school in the year 1979 ( 16/10/1979) as an Assistant Teacher for teac hing language (Assamese). The respondent no.6 continued his services in the sai d post till 1/1/1981. Subsequently, the respondent no.6 was placed as a stipendi ary teacher in the same school under ’Half-A-Million-Job-Programme’ (HMJP) and t he said appointment was approved by the then Inspector of Schools, Karbi Anglong District Circle, for short, K.A.D.C., vide order dated 21/1/1981 with effect fr om 2/1/1981. The deponent states there was a move from the then Headmaster of t he School requesting approval of appointment of the respondent no.6 as Assistant Teacher for the period 16/10/1979 to 1/1/1981. However, the then Inspector of Schools, K.A.D.C. opined that as the appointment of the respondent no.6 as stipe ndiary teacher was already approved from his end, there was no use according him approval for the appointment of Language Teacher. The deponent states that suc h response from the then Inspector of Schools, K.A.D.C. coupled with the fact th at the respondent no.6 had been working as Assistant Teacher for more than four months before joining of the petitioner, prompted the authorities to proceed on the basis that no further/fresh approval of the appointment of the respondent n o.6 as a Language Teacher was required and in terms of the earlier approval of t he respondent no.6, the authorities proceeded to consider him for promotion to t he post of Assistant Headmaster of the School and accordingly, the order dated 2 6/5/06 was issued. The deponent states that the aforesaid facts would go to sho w that the respondent no.6 is senior to the petitioner who joined the school in the year 1980 and all statements to the contrary are denied. The deponent state s that there has been no violation of any Rule and/or Regulation in issuance of the order dated 26/5/06. The allegations of collusion on the part of the answer ing deponent and deprivation of the petitioner’s legitimate expectation are deni ed. (cid:28) Therefore, the contention of the appellant that he was senior to respond ent no.6 was denied. The Inspector of Schools filed an additional affidavit further reiterati 8]. ng the stand taken in the counter affidavit. Respondent no.6, in his counter aff idavit, stated that when the appellant had joined the school, there were altoget her six teachers, including the appellant and the respondent no.6. He has also asserted that he was appointed as Assistant Teacher in the School on 16.10.1979, which was followed by his appointment under ’Half-A-Million-Job-Programme’. He was in continuous appointment since 16.10.1979. Therefore, he contended that he was senior to the appellant and was rightly promoted as Assistant Headmaster. 9]. dents that respondent no.6 had joined the school prior to him. In his rejoinder affidavit, appellant has denied the claim of the respon Learned Single Judge on due consideration held that respondent no.6 havi 10]. ng joined the school on 16.10.1979 and continued uninterruptedly, therefore, he cannot lose his seniority from the initial date of appointment, unless any contr ary order is passed. Referring to Rule 13 of the Assam Secondary Education (Prov incialised) Service Rules, 1982, learned Single Judge held that in view of the c ontinuous appointment of respondent no.6 with effect from 16.10.1979, he is enti tled to count his seniority from that date and therefore his seniority was right ly counted above the appellant. Observing that the respondent no.6 was promoted as Assistant Headmaster following the prescribed procedure, learned Single Judge declined to interfere with the promotion of respondent no.6 and dismissed the w rit petition. 11]. eal. Aggrieved, the petitioner is before this court by way of the present app 12]. We have heard Mr. S. K. Medhi, learned counsel for the appellant as well as Mr. J. Abedin, learned Standing Counsel, Education Department, Assam. 13]. Learned counsel for the appellant while reiterating the submissions made before the learned Single Judge has also submitted that the determination of in ter se seniority between the appellant and respondent no.6 by the learned Single Judge was not justified. According to him, the documents on record indicate tha t service of the appellant in the school was approved by the authority with effe ct from 20.02.1980 whereas that of respondent no.6 on 02.01.1981, which clearly made him senior to respondent no.6. Therefore, promotion of respondent no.6 over looking the justified claim of the appellant is required to be interfered with. 14]. earned Single Judge. Learned Standing Counsel on the otherhand supports the decision of the l 15]. evant materials on record. The submissions made have been considered. We have also perused the rel 16]. Contention of the appellant that respondent no.6 having been appointed o n 02.01.1981, he cannot be declared senior to the appellant, who was appointed p rior to him on 20.02.1980, cannot be accepted as the learned Single Judge after perusal of the record, which was produced at the time of hearing and on due cons ideration had arrived at a definite finding that respondent no.6 had joined serv ice in the school on 16.10.1979, which is prior to the date of joining of the ap pellant on 20.02.1980, and was in continuous service thereafter. Appellant is un able to show any cogent material to dislodge such finding. As per Rule 13 of th e Assam Secondary Education (Provincialised) Services Rules, 1982, which was the n holding the field, the inter se seniority of the existing employees were requi red to be determined in relation to the date of continuous appointment; date of joining and date of birth. In so far filling up of the post of Assistant Headma ster was concerned, it was required to be done by promotion from the school wise seniority list of Assistant Teachers on the recommendation of the Selection Boa rd. The selection was also to be based upon satisfactory Annual Confidential Re port for last 3 years and seniority of service in graduate scale of pay with a m inimum 7 years of teaching experience. The learned Single Judge on due considera tion held as follows:- I have given my anxious consideration to the submissions made by the lea (cid:28)13. rned counsel for the parties and the materials on record. As indicated above, it is not correct to say that at the time of joining the school by the petitioner there were only two other teachers in the school. Annexure-3 order dated 15.11.8 0 on which the petitioner has placed reliance itself indicates that there were o ther teachers in the school whose appointments could not be approved in absence of the certificates in original. It is nobody’s case that the appointments of o ther teachers could never be approved in absence of original certificate and/or that those teachers never produced the original certificates. If the respondent no.6 was appointed on 16.10.79 there cannot be any reason as to why his seniorit y should not be counted from that date. It is his definite case that he continue d his service on the basis of appointment made by the Managing Committee of the school like that of the petitioner w.e.f. 16.10.79 to 02.01.81 and even thereaft er he was appointed in the school against the particular post w.e.f. 02.01.81 by order dated 23.01.81. Diluting the claim of the petitioner that the respondent no.6 came into existence in the school only w.e.f. 02.01.81, the respondents hav e furnished enough materials to show that the said respondent was part and parce l to the school even prior to 02.01.81 and in fact, he was appointed by the Mana ging Committee on 16.10.79. If the respondent no.6 joined the school on 16.10.79 and continued uninterruptedly irrespective of the subsequent order dated 23.01. 81, unless any contrary order is passed, he cannot lose his seniority from the i nitial date of appointment. 14. As per the Rule 13 of the Assam Secondary Education (Provincialised) Ser vice Rules, 1982, the inter se seniority of the existing employees shall be dete rmined in relation to the date of continuous appointment; date of joining and da te of birth. The continuous appointment of the respondent no.6 being we.f. 16.10 .79, he is entitled to count his seniority from that date and not any other date . Rule 2(h) of the same Rules defines (cid:28)period of service (cid:29) as the (cid:28)period of cont inuous service from the date of appointment (cid:29). The Division Bench of this Court in the case reported in (1988) 2 GLR 17 ( Nipen Kalita Vs. State of Assam and ot hers), held that the date of joining of the school even before the provincialisa tion of school is the factor towards determination of inter se seniority. In th e instant case also, the respondent no.6 having joined the school prior in point of time than that of the petitioner, the respondents have rightly counted his s eniority above the petitioner. 15. Apart from the above, the impugned order dated 26.05.06 (Annexure-11) by which the respondent no.6 has been promoted as Assistant Headmaster of the scho ol does not indicate that the same is temporary and/or by way of any stop-gap ar rangement. In this connection the statement made in paragraph-10 of the counter affidavit filed by the official respondents is relevant. This aspect of the mat ter has been discussed above. In the said paragraph, it is the categorical stand of the respondents that the impugned order has been passed following the proced ure laid down for promotion. The basis for promotion from amongst the senior te achers of the school is to conduct the selection by the Selection Board on the b asis of the annual confidential report and teaching experience etc. According to the official respondents, the respondent no.6 has been promoted following the s aid criteria to which there is no denial on the part of the petitioner, as noted above. Even otherwise also, once it is held that the respondent no.6 is senior to the petitioner, in absence of any adverse materials and pleading to that effe ct, the promotion of the respondent no.6 cannot be interfered with. (cid:29) 17]. Normally and as a general principle, questions relating to determination of inter se seniority between rival claimants should be left to the departmenta l authorities to decide as such determination may require going into disputed qu estions of fact and the writ court should not ordinarily undertake such an exerc ise. 18]. However, the basic issue in the present case was validity or oth erwise of the promotion order of respondent no.6 and incidental to that was the question of seniority of the rival claimants i.e. of the appellant and responden t no.6. The learned Single Judge having undertaken the exercise, the outcome of which we are in agreement with, we see no good ground to disturb such finding of the learned Single Judge. 19]. dismissed, leaving the parties to bear their own costs. Therefore, we find no merit in the appeal, which is accordingly