High Court · 2010

I have heard Mr. TJ Mahanta, learned counsel for the petitioner, Mr. MK Misra, learned Standing Counsel, Education Department, Assam and Mr. B C hakraborty, learned counsel for the respondent No. 6. This is the third round of litigation between the parties. The 03. petitioner’s recital of facts is traceable to 09.09.1977, on which she claims to have joined the School as Assistant Teacher. The institution was later on prov incialized by order dated 17.10.1997, w.e.f 01.10.1977, in course of which her s ervices were provincialized on and from that date along with other members of th e staff. According to the petitioner, the respondent No. 6 joined the School on 18.05.1977 by the Headmaster and Secretary of Town ME Madrassa, Golaghat agains t a non-sanctioned post. Following the sanction of three additional posts vide Government letter No. G(B)/Prov./26/78, dated 28.12.1978, the services of this r espondent along with others were regularized w.e.f. 01.10.1977. Though, accordi ng to the petitioner, she was the senior most teacher of the School, the respond ent No. 6, having been allowed to hold the charge of the office of the Headmaste r thereof, she submitted a representation on 29.07.2003 before the Director of S econdary Education, Assam. An inquiry was directed and on the completion thereo f, the Joint Director, Elementary Education, Assam, submitted a report on 09.12. 2003 in favour of the petitioner. Thereafter, by order dated 11.12.2003 of the Director of Elementary Education, Assam, she was allowed to hold the charge of t he aforementioned office.

04. Consequentially the respondent No. 6 approached this Court with WP(C) No.1673/2004, which was disposed of on 15.12.2005, requiring the Director of Elementary Education, Assam to decide the issue on interse seniority between the parties. The said authority, according to the petitioner, without referring to all relevant records, by order dated 06.01.2007 declared the respondent No. 6 to be senior to her.

05. The petitioner, thus approached this Court with WP(C) No.1319/20 07, questioning the validity of the said decision. By order dated 04.08.2009 th is proceeding was also disposed of, directing the Director of Elementary Educati on, Assam, to decide afresh the issue of seniority between the parties. By the impugned order, the issue has been resolved by the aforementioned School authori ty in favour of the respondent No. 6, thus propelling the petitioner to turn to this Court once again for assuagement.

06. The State respondents have not filed any affidavit, but have pos ted the learned Standing counsel with written instructions, which reveal that th e petitioner was initially appointed as Stipendiary Teacher against the leave va cancy of Musst. Sasme Ara Begum, w.e.f. 09.09.1977 to 30.09.1977 by order dated 8.09.1977 of the Secretary, Town ME Madrassa, Golaghat. Subsequent thereto, the Inspector of School, Sibsagar District Circle, Jorhat, by his order dated 02.02 .1978 appointed her to act as Assistant Headmistress in the School for a period of three months during the leave period of Musst. Sasme Ara Begum from 01.11.197 7. According to the Director of Elementary Education, Assam, at the time of hearing , the petitioner could not produce any appointment order from 01.10.1977 to 30.1 0.1977 to substantiate her claim that she had been working as a Stipendiary Teac her in the School continuously without any break from 02.09.1977. Absence of re cords, have also been indicated by the said authority to endorse the said stand. It has been observed that the entry in the petitioner’s service record that he r services had been provincialized w.e.f. 01.10.1977, appears to be wrong. The impugned order vis-a-vis the respondent No. 6 reveals that he was appointed on 18.05.1977 in terms of the resolution of the Managing Committee of the School . The institution was provincialized w.e.f. 01.10.1977 and his post was sanctio ned with effect from that date along with the scale of pay relatable thereto by the order No.G(B)/Prov./26/78, dated 28.12.1978 of the Director of Public Instru ctions, Assam. The impugned order further reveals that the service of the respo ndent No. 6 was permanently retained by the letter dated 25.03.2004 and he had b een confirmed by the letter No.DEEO/G/Mid/Con/03/4517-22 dated 11.09.1994 of the District Elementary Education Officer, Golaghat. The respondent No. 6, in his affidavit while reiterating the abo 07. ve, has emphasised that not only the appointment order dated 02.02.1978 of the p etitioner would indicate that she was not in the service of the School at the re levant point of time and had been drafted in for a period of three months w.e.f. 01.11.1977, her services were not provincialized w.e.f. 01.10.1977 as claimed b y her. As a matter of fact, that though, he was in service of the School, he co uld not be initially accommodated against the posts sanctioned therefor at the t ime of provincialisation and that later on three more posts having been allotted , he was extended the said benefit w.e.f. 01.10.1977 and accordingly he drew sal ary on the basis thereof on and from the said date. The answering respondent th erefore, has strongly refuted the petitioner’s claim of continuing in service on and from 09.09.1977 and the provincialisation thereof w.e.f. 01.10.1977.

08. Mr. Mahanta, has urged that as the service book of the petitione r in clear terms records the provincialisation of her services w.e.f. 01.10.1977 , the impugned order is visibly not with reference to all the contemporaneous of ficial records and is thus liable to be adjudged null and void. As the service book of the petitioner forms an integral part of the official records of the Dep artment, the relevant entry vis-a-vis him can neither be disregarded nor effaced at one’s megrim and therefore, the inquiry into the issue not having been condu cted in conformance of the letter and spirit of the directions contained in the order dated 04.08.2009, passed by this Court in WP(C) No.1391/2007, it is non es t in law. Without prejudice to the above, the learned counsel has urged that th e respondent No. 6 not having been selected for regular promotion to the post of Headmaster of a Middle English School/Madrassa, the impugned order to that effe ct is also obviously flawed and is liable to be interfered with. The learned co unsel in endorsement of the petitioner’s claim has produced before this Court th e duplicate copy of her service book. Mr. Misra, while abiding by the written instructions furnished, 09. however, has conceded that all relevant records presently lying in the custody o f the District Elementary Education Officer, Golaghat, have not been placed at h is disposal inspite of repeated instructions. With reference to the Acquaintanc e Roll as well as Attendance Registrar of the teachers of the School for the rel evant period, the learned Standing Counsel, however, has submitted that the same demonstrates the presence of the petitioner in the institution in the said capa city from 01.10.1977.

10. Mr. Chakraborty, has insistently argued that as would be evident from the series of orders and the official communications in a chronological or der and annexed to the pleadings of the respondent No.6 that the petitioner was appointed initially on 09.09.1977 as a Stipendiary Teacher up to 30.09.1977 and thereafter from 01.11.1977 for a period of three months and that there is no rec ord whatsoever of her continuance in service during the interregnum. Reiteratin g that the respondent No. 6 after being appointed on 18.05.1977, had continued w ithout any break and that his services were provincialized w.e.f. from 01.10.197 7 and thereafter, confirmed in the year 1994, the learned counsel has urged that the impugned order is based on a correct appreciation of the relevant records a nd the attendant facts and circumstances and thus, ought not to be interfered wi th. He, however, has not seriously contested the plea against his regular promo tion to the post of Headmaster. According to Mr. Chakraborty, in view of the su perior seniority of the respondent No. 6, he by all means is entitled to hold th e charge of the office in preference to the petitioner.

11. The pleadings of the parties and the arguments advanced have bee n duly noted. The facts and particulars relating to the respective service prof iles of the parties, as have been borne out by their pleadings, are not in dispu te. Vis-a-vis the petitioner, the period between 01.10.1977 to 30.0.1977 seems to be crucial and decisive on the issue of interse seniority between her and the respondent No. 6

12. The materials on record reveal that acting on the representation of the petitioner submitted on 29.07.2003, the Joint Director of Elementary Edu cation, Assam, had conducted an inquiry on the culmination of which, he returned a finding that she was senior to the respondent No. 6. The extract of the said inquiry report (Annexure 1 to the writ petition) demonstrates that in reaching that conclusion, amongst others, the service book of the teachers, the acquainta nce roll and the attendance registrar for the relevant period were scrutinised. Following the said report, she was allowed to act as the In-charge Headmistress of the School. The said decision having been challenged before this Court, by order dated 15.12.2005 in WP(C) No.1673/2005, the Director of Elementary Educati on, Assam, was directed to determine the interse seniority between the parties a fresh after affording them a reasonable opportunity of hearing. The order dated 06.01.2007 of the said authority followed recording that the respondent No. 6 h ad joined the School against a regular vacancy w.e.f. 01.10.1977 and the petitio ner w.e.f. 01.11.1977 and, therefore, the former was declared senior. In respon se to the assailment made by the petitioner against the said order, this Court o n 04.08.2009, while disposing of WP(C) No. 1391/2007, directed the Director of S econdary Education, Assam to decide the seniority dispute between the petitioner and the respondent No. 6 afresh after hearing them and taking into account all materials by passing a speaking order.

13. The aforementioned State authority in the impugned order conclud ed that the petitioner did not hold any properly created post originally and tha t she had no right to claim seniority. It was held further that her service was not regularised against any sanctioned post w.e.f. 01.11.1978. It was mentione d as well, that at the time of provincialisation of the School her name could no t be forwarded and that she did not hold any post after the resignation of Musst . Sasme Ara Begum, who at the relevant point of time was a Stipendiary Teacher o f the School. The duplicate copy of the service book of the petitioner, the authenticity where of has not been questioned by the respondents, in clear terms records her to be a permanent Assistant Teacher of the School. The same reveals that she was appo inted as Assistant Teacher thereof vide Memo No. 8015, dated 30.09.1977 of the D eputy Inspector of School, Golaghat and that her services had been provincialize d w.e.f. 01.10.1977 vide Government letter No.ESS.172/77/164 dated 17.10.1977 an d communicated vide Memo No. P.C.10/77/7372-80 dated 21.11.1977 of the Director of Public Instruction, Assam. She was not only granted the benefit of revision of pay scale thereafter, but was also allowed to cross the efficiency bar. All the entries made therein, are attested by the Deputy Inspector of Schools, Golag hat from time to time.

14. The Attendance Register of the teachers of the School also prima facie indicates the presence of the petitioner as a teacher thereof, amongst ot hers, from 01.10.1977. The entries in the Acquaintance Roll for the month of Oct ober, 1977, pertaining to the School also endorse the above fact. The entries i n this roll are also endorsed by the Deputy Inspector of Schools, Golaghat. Not iceably, neither the service book of the petitioner nor the acquaintance roll as well as the attendance register of the School referred to hereinabove and produ ced before this Court find mention in the impugned order. The conclusions recor ded therein, therefore, are evidently without reference to the said coeval recor ds, the genuineness whereof have not been impeached in course of the proceedings . The stray observation of the Director of Elementary Education, Assam, in the written instructions furnished to the learned Standing Counsel, Education Depart ment, Assam that the entry qua the petitioner in her service record indicating p rovincialisation of her services w.e.f. 01.10.1977 appears to be wrongly recorde d, is distressingly casual and lacking in persuasion. This co-existing records maintained in the regular course of official business have a vital bearing on th e issue and cannot be wished away so lightly. This is also in face of the repor t submitted by the Joint Director of Elementary Education, Assam, first in point of time with reference to these. The Director of Elementary Education, Assam, ought to have in course of the scrutiny entrusted to him, verified these records as well, to record his finding on the issue. In the above view of the matter, the impugned order dated 15.05. 15. 2010 cannot be sustained and is thus interfered with. The issue stands remitted again to the Director of Elementary Education, Assam to cause immediate steps t o be taken for an exhaustive and in-depth inquiry into the controversy with refe rence to all relevant records having a bearing thereon.

16. Needless to say, the parties would be accorded all reasonable op portunities to participate in the said inquiry. As the debate has procrastinated over nearly a decade and visibly has not augured well for the School, the proce ss as directed should be completed within a period of one (1) month from the dat e of receipt of the certified copy of this order. It is expected that the Direct or of Elementary Education, Assam, would be careful, vigilant and circumspect in undertaking the inquiry, so much so that his report is full fledged and self co ntained obviating any essentiality of any fresh probe to be ordered by this Cour t on reasons akin to those as aforementioned. The petitioner would submit a cer tified copy of this order before the abovenamed authority for the needful within a period of two (2) weeks herefrom. For a period of six (6) weeks from today s tatus quo, with regard to the office of the Headmaster/Headmistress of Town ME M adrassa, Golaghat, as on date, shall be maintained. The petition stands allowed in the above terms. No costs.