High Court · 2012

The petitioner by the present petition has challenged the order dated 27th Augus t, 2012 passed by the Director of Secondary Education, Assam allowing the respon dent No.4 to hold the current charge of the Principal of Bongalmora HS School, L akhimpur by recalling the earlier order dated 31st July, 2010 passed allowing th e writ petitioner to hold the charge of the said post. The said order was passe d pursuant to the directions contained in the order dated 25th January, 2012 pas sed in WP(C) No.5147/2010. It has been contended by Mr. Bhuiyan, learned counsel for the petitioner that th ough in the transfer order dated 4th December, 1999 issued by the Inspector of S chools, Lakhimpur District Circle, North Lakhimpur, transferring the petitioner, who is a Classical (Sanskrit) teacher, from ABDHS School to Bongalmora HS Schoo l, it has been mentioned that the said order has been passed at his own request, since in the said transfer order it has been specifically mentioned that the pe titioner was transferred at his own scale of pay and status vice another teacher transferred out from the said Bongalmora HS School, the petitioner would carry the seniority alongwith him and his seniority cannot be counted in the transferr ed school of posting, namely Bongalmora HS School, with effect from the date of his joining pursuant to such order of transfer dated 4th December, 1999. It has been submitted that since a full Bench of this Court in Jamal Uddin Ahmed & Ors . Vs. State of Assam & Ors. reported in 2012 (1) GLT(FB) 1 has curved out an exc eption to the principle that the teachers who were transferred on his own reques t would not carry the seniority to the transferred school of posting and his sen iority would be counted in the said school with effect from the date of joining pursuant to such transfer, even if the petitioner was transferred on his own req uest vide order dated 4th December, 1999, he would not lose the seniority and hi s seniority would be counted with effect from the original date of appointment, i.e. 23rd January, 1980. On the other hand, Mr. Goswami, learned standing counsel, Education Department a s well as Mr. Roy Choudhury, learned counsel appearing for the respondent No.4 s ubmit that it is evident from the order of transfer dated 4th December, 1999 tha t the petitioner was transferred to Bongalmora HS School as per his own request and as such, his seniority in the transferred school of posting would be counted with effect from the date of his joining in the said school pursuant to such or der of transfer. It has also been submitted that the status and the pay scale, which the petitioner would carry, as mentioned in the said order of transfer mea ns the pay scale in which the petitioner shall be paid the salary and the status as Classical (Sanskrit) teacher. The learned counsel further submits that the exception curved out in the aforesaid judgment passed in Jamal Uddin Ahmed (supr a) is not applicable in the case in hand, as the full Bench has held that no act ion shall be taken pursuant to the decision of the full Bench in respect of thos e cases where the pensionary matter has been finalized and the final gradation l ist has been published, which has attained the finality. According to the learn ed counsel, in the case in hand, no final gradation list has been published till date. Perusal of the order dated 4th December, 1999 reveals that the petitioner was tr ansferred from ABDHS School to Bongalmora HS School at his own request. It has, however, been mentioned in the said order of transfer that he will carry his st atus and also the pay scale, which means his status as the Classical (Sanskrit) teacher shall continue and he will be entitled to the salary in the pay scale in which he was paid in the earlier school. It does not mean that the petitioner shall also carry his seniority to the transferred school of posting. A full Bench of this Court in Jamal Uddin Ahmed (supra) has held that the teache rs transferred from one school to another on his own request shall not be entitl ed to claim seniority in the transferred school of posting and his seniority in the said school shall be counted with effect from the date of joining in the tra nsferred school of posting. The full Bench further held that the Assam Secondar y Education (Provincialised) Service Rules, 2003, which provides that the teache rs who have been transferred on his own request would lose the seniority, is a c larificatory law and hence, the provisions contained therein shall be retrospect ive in operation from the date of enactment of the 1982 Rules. Exceptions, howe ver, have been curved out, to the effect that the cases where the entitlement of the teachers, who have retired from service has already computed giving the sen iority on the basis of own request inter school transfer and where the departmen tal order securing seniority have attained finality and that has not been challe nged before any judicial forum as on the date of passing of the judgment as well as the cases finally determined by the Court of law sustaining the seniority wo uld not be reopened on the basis of the aforesaid judgment. In the case in hand, the matter of seniority between the petitioner and the resp ondent No.4 was not determined and the dispute relating to the seniority arose d uring pendency of Jamal Uddin Ahmed (supra), which continued till even after dis posal of the said case by the aforesaid judgment by a full Bench of this Court a nd hence, the petitioner’s case does not come within the exception curved out by the aforesaid judgment. The petitioner having been transferred on his own request vide order dated 4th D ecember, 1999 would, therefore, be entitled to count his seniority in the transf erred school of posting in Bongalmora HS School with effect from the date when h e joined the said school pursuant to the order of transfer. The respondent No.4 admittedly has been appointed in the said school as subject teacher on 19th Sep tember, 1985 and continued to be in the said school till date. That being the position, it has rightly been held by the Director that the respo ndent No.4 is entitled to hold the charge of Principal of Bongalmora HS School o n the basis of his seniority. The writ petition is, therefore, dismissed being devoid of any merit. No costs.