High Court · 2009

I have heard Mr. D. Chakraborty, learned counsel for the petitioner and Mr. H.I. Choudhury, learned counsel for respondent No.6. Mr. U.K. Goswami, learn ed Standing counsel, Education Department, Assam appeared for the Official respo ndents. The pleaded versions of the parties in short would be necessary to be ou tlined at the outset. The petitioner has asserted that she was initially appointed as Hindi te acher in Jarailtala Senior Basic School on vide order of the even date, passed b y the Deputy Inspector of Schools, Elementary Education, Silchar, She was eventu ally by order dated 31.07.1979 of the same authority transferred to the Practici ng Govt. Senior Basic School as above. According to her, she has been rendering her services as Assistant Teacher of the School, till date. She has claimed to b e the seniormost Assistant Teacher of the School and has contended to have been confirmed in service by order dated 11.10.1999 of the Director of Elementary Edu cation, Assam. According to her, the respondent No.6 also joined the same School on 26.04.1980 and therefore is junior to her in service. The erstwhile Headmast er of the School having retired on 31.01.2007 on attaining the age of superannua tion, the petitioner was under the impression that considering her status and se niority she would be handed over the charge of the said Office. By the impugned order, however, the respondent No.6 has been extended the said favour. As the pe titioner’s representation highlighting his grievances has not been attended to, she is before this Court for necessary intervention and redress. The respondent No.2, the Director of Elementary Education Assam, in his affidavit while admitting the petitioner’s initial appointment as Hindi Teacher at Jarailtala Senior Basic School has pleaded that the said institution being a provincialised one her transfer to the School by order dated 31.07.1979 by the D eputy Inspector of Schools, Silchar has been irregular having been effected with out the prior approval of the higher departmental authorities. While admitting t hat pursuant thereto the petitioner had joined the School on 01.08.1979, the ans wering respondent has referred to the letter dated 17.05.1989 of the Director of Elementary Education, Assam instructing all the District Elementary Education O fficers and Deputy Inspector of Schools against transferring teachers between Go vt. and provincialised schools. The departmental authority has also asserted bre ak in service of the petitioner for the period 26.07.1995 to 04.09.1995 for whic h her pay could not be released due to non-submission of the duty certificate by her. This resulted in view of the petitioner’s transfer, in between, to Jarailt ala Senior Basic School by order dated 24.07.1995 of the Deputy Inspector of Sch ools, Silchar. The answering respondent, however, admitted that in view of the interim order passed by this Court in C.R.No.3777/1995, the petitioner re-joined the Sch ool on 05.09.1995. He further reiterated that her services for the period 26.07. 1995 to 04.09.1995 have not been regularized. Vis-à-vis respondent No.6. it has been stated that he was appointed at the School following which he joined the sa me on 12.03.1979. As the petitioner joined at Practising Government Senior Basic School on 01.08.1979, according to the answering respondent, she was even other wise junior to him. The departmental respondent also affirmed the participation of the said respondent in a selection process for the post of Headmasters of Mid dle/Government Senior Basic School, in which he was found to be eligible, Accord ing to the answering respondent the petitioner did not associate herself with th e said exercise. The pleaded stand of the respondent No.6 is substantially in the same li nes as of the Director, Elementary Education, Assam. The said respondent however has admitted to have joined the Practising Government Senior Basic School on tr ansfer thereto by order dated 11.04.1980, passed by the Deputy Inspector of Scho ols, Silchar. The assertions regarding irregularity of the petitioner’s transfe r to the School and non-regularisation of her services for the period 26.07.1995 to 04.09.1995 have been reiterated. Mr. Chakraborty has argued that having regard to the pleadings of the pa rties which demonstrate longer length of service of the petitioner qua responden t No.6, the impugned order of installing the latter as the In-Charge Headmaster of the School is per se illegal and is liable to be interfered with. Contending that the instructions contained in the letter dated 17.05.1989 (Annexure R/1 of the said affidavit) have no application to the petitioner, the learned counsel h as urged that in any view of the matter, the objection on this count having been three decades is liable to be rejected law on the ground of undue delay alon e. Mr. Chakraborty has insisted that the plea of break in service of the pe titioner for the period 26.07.1995 to 04.09.1995 is also belied by the fact that in the meantime on the basis of a supplementary pay bill, she has been released the pay and allowance for the said period. In all the learned counsel has maint ained that the impugned order on the face of the records is not sustainable in l aw and is liable to be interfered with. Mr. Goswami, has argued that as the petitioner’s initial transfer to the School has been irregular, she cannot be accorded the benefit of seniority on t he basis of the services rendered by her thereat. The learned Counsel in this r egard relied on the letter dated 17.05.1989, issued by the Joint Director, Eleme ntary Education, Assam, instructing against the transfer of teachers from Govern ment/provincialised school and vice-versa. Mr. Goswami, also highlighted the respondent No.6’s selection for p romotion to the post of Headmaster to endorse the impugned order and reiterated the aspect of break in service of the petitioner for the aforementioned period to repudiate her claim. While endorsing the above, Mr. Choudhury, has further urged as the respo ndent No.6 has been holding the Office of the Headmaster of the School without a ny break since March, 2007, at this point of time, bearing in mind his selection for regular appointment to the said post, the impugned order ought not be inter fered with. He reiterated that the petitioner in any view of the matter cannot b e given the benefit of seniority for the service rendered by her in the School t o which she has been transferred in violation of the departmental norms. The pleading of the parties and the arguments advanced have received the due consideration of this Court. The aspect of transfer of the petitioner to th e School deserves attention at the threshold. The letter dated 17.05.1989 of the Joint Director, Elementary Education, Assam (Annexure R/1) is apparently dated much later than the event of the petitioner’s transfer to the school. A decade b efore that letter, the petitioner was in administrative exigency, posted at the school, as is apparent from the order dated 31.07.1979 (Annexure 3 to the writ p etition). Be that as it may, it passes ones apprehension as to why no action immed iately thereafter was taken by the departmental authority. Had the contravention of the departmental norms been so blatant and outright. Though an attempt has b een made to rectify the irregularity made, by transferring the petitioner to her original school i.e. Jarailtala Senior Basic School by order dated 24.07.1995, it transpires from the letter No. ETA.2/89/269 dated 02.09.1995, issued by the D irector Elementary Education, Assam (impugned in CR No.3777/1995) that her trans fer thereby had been stayed until further orders. In effect therefore, the conce rned departmental authorities construed her transfer to the Practicing Govt. Sen ior Basic School as regular. Noticeably, this transfer was much prior to 17/05 /89. The decision contained in the letter dated 02.09.1995 was assailed in CR No.3777/1995 by one Mrs. N.N. Mazumdar in response to which this Court vide ord er dated 11.09.l995 kept the same in abeyance. The petition eventually got dispo sed on 17.07.2001, leaving the decision embodied in the letter dated 02.09.1995 un-interfered. There is no dispute that the petitioner had continued in Practisi ng Government Senior Basic School through out during the pendency of this writ p etition. In view of all above, it is difficult at this distant point of time to s ustain the plea of irregularity of the petitioner’s transfer to the Practising G overnment Senior Basic School so as to deny her the benefit of seniority in serv ice rendered thereat. The Director Elementary Education, Assam in his affidavit in clear terms has admitted that the petitioner’s service for the period 26.07.1995 to 04.09.1 995 could not be regularized for want of duty certificate. It is not his categor ical stand that the petitioner infact had not rendered her services in the said period in that School. In contradistinction, the plea is that her pay and allo wance for the said period has already been disbursed to her on the basis of a su pplement pay bill, an assertion which has remained unrebutted as on date. In thi s premise, the cavil based on non-regularisation of the petitioner’s service for the period 26.07.1995 to 04.09.1995 and break in her service cannot be upheld. Neither the State respondents nor the learned Standing counsel, Educatio n Department has been able to apprise this Court as to whether the selection in which the respondent No.6 is said to have been found eligible for the post of He admaster of Middle/Government Senior Basic School is still contemplated to be ac ted upon for regular appointment to the said Office. In the opinion of this Cour t having regard to the present controversy and the temporary arrangement for wh ich the parties spar, it is not of any decisive significance. As the issue pertains to In-Charge arrangement of the Office of the Head master of Practising Government Senior Basic School, the accepted benchmark is seniority in service to determine the candidate. The attention of this Court h as not been drawn to any provision of law or any executive instruction or admini strative guidelines to project that the petitioner is not entitled to the benef it of seniority reckonable on the length of service at the school. Computing on the basis of the term of continuous service rendered by her at Practising Government Senior Basic School, the petitioner is senior to respo ndent No.6. It is not the case of the State respondents that the petitioner is otherwise disqualified or ineligible to hold the said Office. In the above view of the matter, the challenge to the order dated 09.03. 2007 of the Director, Elementary Education, Assam, inducting the respondent No.6 to the Office of the Headmaster of the Practising Government Senior Basic Schoo l on In-Charge arrangement is liable to be interfered with. Ordered accordingly . The impugned order, as a result is quashed. The respondent authority would forthwith take consequential steps in com pliance of this order. The petition stands allowed in the above terms. No costs.