Judgment · High Court · 2012

ORDER Shri Puspa Kanta Gogoi, B.Sc. Asstt. Teacher (Science) of Baithalangso Higher Se condary School, Karbi Anglong District is hereby transferred and posted to Bokaj an Higher Secondary School, Karbi Anglong District with immediate effect on his same grade and scale of pay. This is against the vacant post of Shri Bhadreswar Baruah, Graduate Science Teacher transferred. (cid:29) Addl. Director of Education (Hills) Assam, Haflong (cid:29) Sd/-

#5. The respondent No. 5 however, has brought on record certain communicatio ns prior in point of time than the aforesaid order of transfer. The said communi cations are dated 10.12.2011, 02.02.2012, 17.08.1989, 06.07.1989, 12.11.1988 and

28.10.1988.

#6. By letter dated 28.10.1988, the petitioner had made request to the Educa tion Department for his transfer to the present school categorically showing a v acant post of Science Teacher (Maths) in the school. By letter dated 12.11.1988 addressed to the Inspector of Schools, KADC by the Principal of the earlier scho ol in which the petitioner had worked, conveyed no objection in transferring him from the school. That letter was followed by letter dated 06.07.1989 addressed to the Addl. Director of Education (Higher) Assam by the Inspect of Schools, KA DC stating therein that the post to which the petitioner was to be transferred w as lying vacant. By further communication dated 17.08.1989, the Inspector of Sch ools, KADC informed the Addl. Director of Education (Higher), Assam conveying th at the post of Science Graduate Teacher (Maths) was required in the school to wh ich the petitioner was transferred.

#7. The communications dated 10.12.2011 and 02.02.2012 are addressed to the State Public Information Officer in the Education Department and reply thereto to the respondent No. 5 respectively. By letter dated 10.12.2011, the respondent No. 5 sought for information regarding transfer of the petitioner way back in 1989 to the present school. By letter dated 02.02.2012 the information sought fo r was furnished to him on the basis of which he has developed a new case that t he petitioner cannot count his seniority from the initial date of appointment in 1979, but will get his seniority from 1989 when he was transferred to the schoo l by above quoted order. In support of this collateral plea raised in the counte r affidavits, learned counsel for the respondent No. 5 has placed reliance on th e Full Bench decision of this Court reported in 2012 (1) GLT 1 (Jamal Uddin Ahme d vs. State of Assam)

#8. I have heard Mr. D. Borah, learned counsel for the petitioner as well as Mr. M.K. Choudhury, learned Sr. counsel assisted by Mr. J. Roy, learned counsel for the respondent No. 5. I have also heard Mr. J. Chutia, learned SC, KAAC.

#9. While Mr. Borah, learned counsel for the petitioner argued that the sett led seniority of the petitioner cannot be disturbed at the instance of the respo ndent No. 5 and that too, entirely on a wrong notion of the matter and by way o f collateral that too belated plea. On the other hand, Mr. M.K. Choudhury, learn ed Sr. counsel representing the respondent No. 5 placing reliance on the aforesa id Full Bench Decision of this Court while conceding that seniority in both the cadres, i.e. Graduate Cadre and Post Graduate Cadre, is to be determined taking into account both the cadres together and on the basis of the date of joining, h owever, contended that since the petitioner was transferred to the present schoo l in 1989, his earlier period of service from 1979 stood obliterated so far as t he question of seniority is concerned.

#10. Mr. J. Chutia, learned SC, KAAC referring to the stand of the Inspect of Schools, KADC in his counter affidavit made submission in the same tune project ing it to be a case of loss of seniority by the petitioner on his transfer to th e present school way back in 1989.

#11. I have considered the submission made by the learned counsel for the par ties and have also considered the entire materials on record and my findings and conclusions are as follows:

#12. Never before the official and the private respondents had ever contended that the seniority of the petitioner would be counted from 1989, i.e. the year in which he was transferred to the present school. It is only after the aforesa id Full Bench decision of this Court they have taken the plea in this proceeding that the petitioner is not entitled to count seniority from 1979. The petitioner has brought on record the gradation list of the school th 13. at was published on 23.11.2000 (about 12 years back) under the signature of the Principal of the School. In the said seniority list, the name of the petitioner appeared at serial No. 3 and that of the respondent No. 5 at serial No. 11 clear ly showing their respective dates of appointment as 24.05.1979 and 18.07.1988. T he seniority position finalised by the said gradation list dated 23.11.2000 was never called in question by anyone. The recognition that the petitioner is seni or to the respondent No. 5 was well accepted. It was on that basis when the earl ier incumbent, i.e. In-Charge Principal, retired from service on attaining the a ge of superannuation, charge was handed over to him by Annexure-A order dated 31 .10.2011. The Managing Committee of the school also adopted a resolution in its meeting held on 11.11.2011 urging upon the Inspector of Schools, KADC to pass f ormal order appointing the petitioner as Principal In-charge of the school. Alon gwith the writ petition, the petitioner has also enclosed another gradation list dated 13.10.2011 in which also his name appears well ahead of the respondent No . 5. While the name of the petitioner appears at serial No. 2 just below the ers twhile Principal of the school, the name of the respondent No. 5 appears at seri al No. 10.

#14. In spite of the aforesaid position, the Inspector of School, KADC passe d the impugned order dated 17.11.2011 allowing the respondent No. 5 to hold the charge of the Principal only in recognition of the fact that he is the senior m ost Subject Teacher. While passing the impugned order, there was no considerati on that the seniority of the incumbents of both the cadres are required to be co nsidered collectively and not in isolation. However, as noted above, during the course of hearing of the instant proceeding the said authority has projected ano ther case of loss of seniority of the petitioner upon his transfer to the presen t school.

#15. I have gone through the records produced by the learned SC, KAAC which a re in the form of two files bearing No. KAAC/Edn./W.P.(C) No. 4824/2011 in the d epartment of Education (Higher Secondary), KAAC, Diphu and E-I/43 on the subject of Baithalangso H.S. School. The file contains the aforesaid gradation list dat ed 23.11.2000. It also contains another gradation list dated 01.08.2011 in which also the petitioner is shown senior to the respondent No. 5. It also contains t he gradation list dated 13.10.2011 referred to above in which also the name of t he petitioner appears at serial No. 2 as against the respondent No. 5’s at seria l No. 9. However, there was a complete (cid:28)U (cid:29) turn in preparing another gradation list dated 04.11.2011 showing the respondent No. 5 at serial No. 1 and the petit ioner at serial No. 8. The same was prepared not on the basis of date of joining in the service, but on the analogy referred to above that Subject Teacher bein g in Class-II/Grade-II, would rank senior to the Graduate Teacher in Class-II/Gr ade-IV.

#16. The aforesaid gradation list dated 04.11.2011 was followed by the gradat ion list dated 07.04.2012 drawn on the same analogy on comparing the Post Gradua te Teacher with that of Graduate Teacher and accordingly placing the respondent No. 5 at serial No. 1 as against placing the petitioner at serial No. 6.

#17. The aforesaid analogy of the respondents in respect of distinctive featu re of Post Graduate Teacher and Graduate Teacher is well reflected in the letter dated 04.11.2011 contained in the file. The letter written by the Inspector of Schools, KADC to the Joint Secretary, Department of Education, KAAC in reference to the Govt. letter dated 29.03.2011 states that the Post Graduate Teacher woul d rank senior to Graduate Teacher.

#18. On perusal of the second file, what is found is that having regard to th e particular vacancy in the present school, the petitioner had requested for his transfer to the school. The matter was processed after observing all the formal ities and eventually it was in the requirement of the school (Post being lying v acant), the petitioner was transferred to the present school by the above quoted order which also does not speak of any loss of seniority. That position having continued for years together, the Education Department in the KAAC, i.e. the re spondent No. 4, and the private respondent (respondent No. 5) cannot be permitte d to build up another story so as to contend that the petitioner will rank junio r to the respondent No. 5 because of his transfer way back in 1989 to the presen t school.

#19. Much have been debated about the aforesaid Full Bench decision of this c ase. In the said decision the concerned issue was as to whether Rule 24 (2) (v) of the Assam Secondary Education (Provincialised) Services Rule, 2003 providing for loss of seniority on request transfer would have retrospective effect or no t. There was conflicting decisions in reference to the earlier set of Rules, na mely Assam Secondary Education (Provincialised) Services Rules, 1982 vis a vis t he Rules of 2003. While in some decisions it was held that in absence of any cle ar indication about the loss of seniority on request transfer coupled with the f act that there was also no provision of such loss of seniority in 1982 Rules, lo ss of seniority would not entail, however, in some other decisions it was held t hat irrespective of any explicit provision regarding loss of seniority in 1982 R ules, an incumbent upon a request transfer would forfeit his past service in res pect of seniority. The Full Bench decision while holding (deciding the particular issue) t 20. hat the provision made in 2003 Rules for loss of seniority would have retrospect ive application, however, has made it clear that the issue of own request in sch ool transfer after 1982 which has attained its finality should not be reopened. Operating part of the said conclusion is quoted below: (cid:28)73. We are, thus, of the unhesitant opinion that own request inter-school trans fers were not contemplated under the 1982 Rules either in public interest or in administrative exigency. The 2003 Rules carries the same mandate explicitly enjo ining the consequence of loss of past services for seniority of the incumbent co ncerned in such an eventuality. A perceptible continuum of this legislative orda inment persists to effectuate the retropsectivity of the 2003 Rules to remedy t he purported state of ambiguity, indeterminability and the consequential inconsi stency in approach of the State authorities on the issue opposed to the letter a nd spirit of the 1982 Rules. The 2003 Rules essentially is thus a clarificatory law and is held to be retrospective in operation on and from the date of enactme nt of the 1982 Rules. This determination, notwithstanding, as we are conscious that as on date , the issue of own request inter-school transfer after the 1982 Rules, has meanw hile been finally settled in many cases including those of several incumbents wh o since retired from service with their entitltments accordingly computed, we or der that such cases would not be reopened on the basis of this verdict. In other words, cases where departmental orders securing seniority even on such inter-sc hool transfers have attained finality and no challenge thereto has been made bef ore any judicial forum as on date as well as cases finally determined by a Court of law sustaining such seniority the same would not be reopened on the basis of this verdict.

#74. To reiterate, this adjudication has been made without reference to any parti cular fact situation and would be limited to the incumbents of the Assam Seconda ry Education (Provincialised) Service and at all relevant times governed by the provisions of the two Rules dealt with as above. (cid:29)

#21. In the instant case, the petitioner was transferred to the present schoo l about 23 years back, i.e. in 1989. It is not the case of the petitioner that upon such transfer he was made to understand that he would forfeit his past seni ority. He was all along recognised to be senior to the respondent No. 5, a fac t well reflected in the aforementioned gradation list dated 23.11.2000 followed by the other gradation lists and aforementioned resolution of the Managing Commi ttee of the school. It is in this background, the above observation in the Full Bench decision will have to be understood in the touchstone of the letter and sp irit of the judgment and not for reopening long settled seniority position. The respondent No. 5 never at any point of time over the last 23 years questioned th e settled seniority of the petitioner above him, but has only raised the issue c ollaterally in this proceeding initiated by the petitioner.

#22. As noted above, the whole basis of the claim of the respondent Nos. 4 an d 5 towards projecting a new case is the aforesaid Full Bench decision of this C ourt. Needless to say that a judgment on a particular issue cannot clothe a pers on to reopen a long settled matter. The benefit of a judgment is not extended to a case automatically. It is not the case of the respondents Nos. 4 and 5 that e ver since the petitioner was transferred to the present school, they had been ag itating their grievance in respect of conferring seniority on the petitioner ab ove the respondent No. 5. Even if such a plea was available, then also in absenc e of any explanation in respect of delay and latches, merely placing reliance on the aforesaid Full Bench decision, the respondent No. 5 cannot be permitted to unsettle the settled position.

#23. It has been held in a number of decisions that in the matter of seniorit y and promotion long settled matter should not be allowed to unsettle and that t oo, on the basis of a judgment. A judgment cannot give rise to a cause of actio n for a person to reopen a settled matter in respect of which no grievance was m ade earlier. Never before, the respondents both official and private had questi oned the settled seniority of the petitioner. It is only after the judgment in J amaludin Ahmed (supra), they have projected altogether a new case of loss of sen iority of the petitioner way back in 1989. The respondent No. 5 has raised the i ssue that too collaterally in the present proceeding initiated against the impug ned order by the petitioner. Dealing with the question as to whether a judgment can give rise to a cause of action and in what circumstances, the Division Bench of this Court in President, Manipur Pradesh Congress Committee vs. Speaker, Man ipur Legislative Assembly, reported in 1997 (2) GLT 447, observed thus: (cid:28)40. It needs to be noted that the judgment dated 22.01.97 (Annexure-16) is not being cited as a precedent but is relied upon as a source and base of accrual of cause of action & (cid:29)

#49. It is in the light of the above findings that the concluding observation as contained in paragraph 19 already quoted above is to be viewed and appreciated. A judgment or decision which is pronounced, must be a declaration of the mind o f the Court as it is at the time of pronouncement (See Surendra Singh Vs. State of U.P., AIR 1954 SC 194). Howsoever liberally read and construed, the judgment dated 22.01.97, Annexure-16 as seen above, does not confer any cause of action e ven or otherwise, on principle a judgment seldom confers or creates any cause of action for institution of fresh proceedings save in exceptional cases where adv erse findings or remarks are made in a judgment behind the back of the party. In deed, as defined in Black’s Law Dictionary to sustain action and seek judicial redress and relief or a declaration of one’s rights the party seeking a judgment must have a cause of action for institution of proceedings or suit. It is not a s if cause of action follows judgment.

#24. As regards the principle laid down in various decisions not to unsettle the settled position, I may gainfully refer to the decisions of the Apex Court c ited below: 1991 Supp (2) SCC 183 (Government of Andhra Pradesh and ors. vs. M.A. Ka 1) reem And ors.) 2) 3) 4)