Judgment · High Court · 2012

Heard Mr. D. Sarmah, learned counsel for the petitioner, Mr. U.K. Goswami, learn ed standing counsel, Education Department appearing for the respondent Nos.1 to 4 and Mr. S. Banik, learned counsel appearing for the respondent No.5. The petitioner by the present petition has challenged the selection and appointm ent of the respondent No.5 as Headmaster of Sapatgram Amalgamated Academy, which is a high school, in the district of Dhubri contending inter-alia that though t he respondent No.5 was transferred from Chithila High School to Sapatgram Amalga mated Academy vide order dated 9th February, 2005 on his own request and with th e condition that he will have no seniority ever the existing staff of the said s chool, his seniority has been counted with effect from 19th November, 2011, i.e. the date when he received the salary in the graduate scale of pay in the earlie r school of posting, i.e. Chithila High School, ignoring the claim of the petiti oner relating to the seniority on the basis of the date of receiving the graduat e scale of pay with effect from 7th April, 1992 in Sapatgram Amalgamated Academy . The other ground on which the selection and appointment of the respondent No. 5 has been put to challenge is that the said respondent never applied for select ion as Headmaster of the school but applied for the post of Assistant Headmaster only but he was selected as Headmaster and appointed as such. The learned counsel for the petitioner referring to the averments made in the wr it petition and also the documents annexed to the writ petition has submitted th at since the respondent No.5 was transferred to the school in question on his ow n request vide order dated 9th February, 2005, he will loose his seniority in th e transferred school of posting and the petitioner have not been appointed as As sistant Teacher in the graduate scale of pay with effect from 7th April, 1992, h e is senior to the respondent No.5, which aspect of the matter was not considere d by the Selection Committee. It has also been submitted that the respondent No .5 having not applied for selection as Headmaster, the Selection Committee ought not to have selected the respondent No.5 for appointment as Headmaster. Mr. Goswami, learned standing counsel, Education Department as well Mr. Banik, l earned counsel appearing for the respondent No.5 submit that though the responde nt No.5 was transferred to Sapatgram Amalgamated Academy vide order dated 9th Fe bruary, 2005 on his own request, he was drawing the salary in the graduate scale of pay in the earlier school with effect from 19th November, 1991, i.e. much pr ior to the date from which the petitioner drew the graduate scale of pay, i.e. 7 th April, 1992. It has also been submitted that the Selection Committee having f ound the respondent No.5 suitable and qualified for selection as Headmaster, has recommended his name and accordingly he was appointed as Headmaster of the scho ol in question vide impugned order dated 21st July, 2011. It is not in dispute that the respondent No.5 is drawing his salary in the gradu ate scale of pay with effect from 19th November, 1991 while he was posted in Chi thila High School as against the petitioner, who was drawing the salary in the g raduate scale of pay with effect from 7th April, 1992 and appointed and posted i n Sapatgram Amalgamated Academy. Going by the date from when the respondent No. 5 drew the salary in the graduate scale of pay, i.e. on 19th November, 1991, the respondent No.5 normally is to be held as senior to the petitioner, who was dra wing the graduate scale of pay with effect from 7th April, 1992. But in the ins tant case, the respondent No.5 was transferred vide order dated 9th February, 20 05 from Chithila High School to Sapatgram Amalgamated Academy, i.e. the school i n question, on his own request. In the said order of transfer dated 9th Februar y, 2005, it has been made clear that the respondent No.5 will not have any claim relating to the seniority ever the existing staff of Sapatgram Amalgamated Acad emy. The said transfer order was accepted with such condition and the respondent No.5 accordingly joined the school of posting. Controverting the statements on oath made by the petitioner that the respondent No.5 was held to be senior to the petitioner and accordingly the selection was m ade for his appointment as Headmaster of the school in question as well as that the respondent No.5 never applied for selection as Headmaster, no affidavit has been filed by any of the parties. The respondent authorities have also not prod uced the relevant records to controvert such positive statement made by the writ petitioner in the writ petition. As discussed above, it is evident from the order of transfer dated 9th May, 2005 that the respondent No.5 was transferred to the school in question on his own r equest with condition as aforesaid. The seniority of the respondent No.5 in the school in question, therefore, has to be determined on the basis of his date of joining pursuant to the order of transfer dated 9th February, 2005 and not from the date when he drew the salary in the graduate scale of pay in Chithila High School, i.e. 19th November, 1991. The said aspect of the matter has been overlo oked by the Selection Committee. It is also evident from the particulars submitt ed by the head of the institution of Sapatgram Amalgamated Academy that while th e petitioner had applied for selection for the post of Headmaster of the said Ac ademy, the respondent No.5 had applied for the post of Assistant Headmaster. But the Selection Committee has selected the respondent No.5 for the post of Headma ster, not for the post of Assistant Headmaster. That being the position, the selection and the consequential appointment of the respondent No.5 vide order dated 21st July, 2011 (Annexure-10 to the writ petiti on) is set aside. The Selection Committee is directed to reconsider the case of the petitioner for selection and make necessary recommendation in accordance wi th law. The case of the respondent No.5 for selection for the post of Assistant Headmaster of the said school shall also be considered by the Selection Committ ee. Such consideration and necessary recommendation shall be made within a perio d of 1(one) month from the date of production of the certified copy by any of th e parties before the Director of Secondary Education, Assam. Till the fresh order is passed appointing anyone as the Headmaster of the school in question, the respondent No.5, however, shall be allowed to continue as such , keeping in view the interests of the student and the school in question. The writ petition is accordingly allowed as indicated above. No costs.